Judicial Review Handbook 9781509922833, 9781509922864, 9781509922840

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JUDICIAL REVIEW HANDBOOK SEVENTH EDITION

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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

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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

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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

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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

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“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

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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).

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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).

40

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).

THE NATURE OF JUDICIAL REVIEW

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

THE NATURE OF JUDICIAL REVIEW

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).

47

THE NATURE OF JUDICIAL REVIEW

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

P3 PROCEDURAL RIGOUR & FLEXIBILITY

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

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[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).

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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 Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337. (2) Parliamentary material may be considered in determining whether legislation is compatible with the European Convention on Human Rights: see Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at §65. (3) The Courts may have regard to a clear ministerial statement as an aid to the construction of ambiguous legislation: see Pepper v Hart [1993] AC 593 at 638. (4) The Courts may have regard to Parliamentary proceedings to ensure that the requirements of a statutory process have been complied with. For example, in this case, the Courts may admit such material in order to be satisfied that the steps specified in section 9 of the Planning 222

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Act have been complied with. (5) The Courts may have regard to Parliamentary proceedings in the context of the scope and effect of Parliamentary privilege, on which it is important for Parliament and the Courts to agree if possible: see the decision of Stanley Burnton J (as he then was) in Office of Government Commerce v Information Commissioner [2010] QB 98 at §61. (6) An exception has also been identified for the use of ministerial statements in judicial review proceedings. … [T]he scope and nature of this exception has not yet been the subject of detailed judicial analysis. It calls for careful consideration of the constitutional issues involved”), §169 (describing a “fundamental difficulty” where “there is a dispute as to [the] meaning” of statements in Parliament, such that “the Court would be drawn into having to resolve whether what was said on behalf of the Secretary of State was accurate or not”), §171 (“there will be circumstances in which the proper assertion of Parliamentary privilege has the consequence that a piece of evidence must be excluded from court proceedings”); R (Electronic Collar Manufacturers Association) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin) [2020] ACD 4 at §134 (identifying relevant principles applicable to reliance on Statements in Parliament as evidence in judicial review proceedings, without infringing parliamentary privilege). 17.1.14 Public interest immunity. R (Jordan) v Chief Constable of Merseyside Police [2020] EWHC 2274 (Admin) at §14 (Chamberlain J, setting out “the three issues to be considered when determining a PII claim: (a) whether the evidence in relation to which PII is asserted is relevant to an issue in the proceedings; (b) whether the disclosure of that evidence would cause harm to the public interest; and (c) if so, whether, balancing the public interest in the administration of justice against the harm to the public interest that would be occasioned by disclosure, an order for disclosure should be made”), §17 (identifying “the applicable principles” on the question of how the availability of a close material procedure (CMP) affects the third issue), §35 (identifying “the appropriate procedure” where a PII claim is raised and CMP is available); HTF v Ministry of Defence [2018] EWHC 1623 (QB) at §59; R (Terra Services Ltd) v National Crime Agency [2020] EWHC 1640 (Admin) at §5 (DC having upheld NCA claim for non-disclosure of material on ground of public interest immunity); R (AHK) v SSHD (No 2) [2012] EWHC 1117 (Admin) [2012] ACD 66 at §33; Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at §102 (relevant factors in PII balance in civil cases); {21.5.23} (directions relating to public interest immunity). 17.1.15 Cooperation between the parties: statement of agreed facts. R v Life Assurance and Unit Trust Regulatory Organisation, ex p Ross [1993] QB 17, 42B (Court assisted by statement of agreed facts); R (Coatman) v Council for Licensed Conveyancers [2012] EWHC 1648 (Admin) at §§17-18 (statement of agreed facts); R (Bibi) v SSHD [2015] UKSC 68 [2015] 1 WLR 5055 at §22 (cases proceeding on assumed facts to test lawfulness of requirement in rule). 17.1.16 Closed material procedure. {22.4.22}

17.2 Fresh evidence in judicial review.41 The conventional starting-point in judicial review is to focus on evidence which was before, or available to, the public authority at the time of its impugned action. But other evidence is frequently relevant and admissible in judicial review. It may relate to: (1) the impugned action and its impact; (2) the background and context; (3) a ground for judicial review; (4) a further issue which arises; and, sometimes, (5) material which is now, or would now be, before the decision-maker. 17.2.1 Fresh evidence in judicial review: general. Kenyon v Secretary of State for Housing Communities and Local Government [2020] EWCA Civ 302 at §28 (Coulson LJ: “In judicial review proceedings it is generally inappropriate for parties to seek to rely on documents (and to advance arguments based on those documents) which were not available to the decisionmaker”); Venuscare Ltd v Cumbria County Council [2019] EWHC 3268 (Admin) at §15 41The

equivalent paragraph in a previous edition was relied on in Kim v Minister of Justice [2016] NZHC 1490 at §14 (Mallon J).

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(HHJ Stephen Davies: “the court should normally when considering criticism of a decision limit itself to reference to the material which was actually placed before the decision maker and to the reasons that were actually given”); R (YH) v SSHD [2010] EWCA Civ 116 [2010] 4 All ER 448 at §21 (judicial review of unfoundedness certificate involves the court exercising its own judgment, but “it remains a process of judicial review, not a de novo hearing, and the issue must be judged on the material available to the Secretary of State”); R (Naik) v SSHD [2011] EWCA Civ 1546 at §63 (Carnwath LJ: “the court … should normally be directing its attention to the material before the Secretary of State when she made the relevant decisions”); R (BBC) v Secretary of State for Justice [2012] EWHC 13 (Admin) [2013] 1 WLR 964 at §27 (“Normally the court in a claim for judicial review would be concerned to assess the lawfulness of a decision under challenge by reference to the material that was before the decision-maker at the time it was taken”); R v Criminal Injuries Compensation Board, ex p A [1998] QB 659 (CA), 682B-C (Simon Brown LJ: “it is only in certain narrowly defined circumstances that the rule against judicially reviewing decisions by reference to fresh evidence is tempered”); {64.4} (timing of reasons: retro-reasons); {13.7} (review from the decision-maker’s point of view). 17.2.2 Fresh evidence in judicial review: the Powis categories. R v Secretary of State for the Environment, ex p Powis [1981] 1 WLR 584, 595G (Dunn LJ, describing “the principles on which fresh evidence should be admitted on judicial review”: “(1) that the court can receive evidence to show what material was before the minister or inferior tribunal; (2) where the jurisdiction of the minister or inferior tribunal depends on a question of fact or where the question is whether essential procedural requirements were observed, the court may receive and consider additional evidence to determine the jurisdictional fact or procedural error …; and (3) where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or the parties before it … [where] fresh evidence is admissible to prove the particular misconduct alleged”); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §36 (Leggatt LJ and Carr J: “[In] determining whether the decision was a lawful exercise of the relevant public function … it is seldom necessary or appropriate to consider any evidence which goes beyond the material which was before the decision-maker and evidence of the process by which the decision was taken”), §38 (“Although [the Powis] categories are a useful and well-established list, it would be wrong to treat them as if they were embodied in statute or as necessarily exhaustive. That is particularly so as public law has developed in ways which were not in contemplation when Ex p Powis was decided”); Dwr Cymru Cyfyngedig v Environment Agency of Wales [2003] EWHC 336 (Admin) at §58 (Harrison J: “the principles in Powis provide an approved and sensible basis on which to proceed which should only be departed from in exceptional circumstances where it can be justified in order to achieve justice and fairness. One of the dangers of admitting fresh evidence in judicial review proceedings is that the court may thereby find itself put in the position of being asked to decide the merits of the case rather than acting as a court of review”). 17.2.3 Fresh evidence: relevant to the issues. R v SSHD, ex p Turgut [2001] 1 All ER 729, 735g (“The Court will not shut out evidence which is relevant to the issues”); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §59 (SC relying on witness statement from Sir John Major as to typical time for prorogation of Parliament); R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074 at §73 (fresh evidence showing that the “complaint of procedural unfairness cannot be described as theoretical”); R v Lord Chancellor, ex p Witham [1998] QB 575 at 579C (evidence of the impact and implications of the impugned statutory instrument). 17.2.4 Fresh evidence: relevant background information.42 R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) [2010] HRLR 12 at §23 (“relevant to

42The

equivalent paragraph in a previous edition was relied on in PCCW-HKT v Secretary for Commerce [2014] HKCFI 1233 at §49 (Hon Ng J).

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explain the context in which the issue of law arises”); R (Pelling) v Bow County Court [2001] UKHRR 165 at §14 (evidence serving as “useful background information”); R v Humberside County Council, ex p Bogdal [1991] COD 66 (defendant entitled to put forward all relevant background documents); R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) at §8 (witness statement giving “a careful account of the sequence of matters that led to the decisions”). 17.2.5 Evidence to show what was before the decision-maker. R v Secretary of State for the Environment, ex p Powis [1981] 1 WLR 584, 595G (“the court can receive evidence to show what material was before the minister or inferior tribunal”); Venuscare Ltd v Cumbria County Council [2019] EWHC 3268 (Admin) at §15 (“there can be no objection to evidence being adduced to explain what material was in fact before the decision maker which was taken into account”). 17.2.6 Evidence of what an inquiry would have elicited.43 R (JA) v London Borough of Bexley [2019] EWHC 130 (Admin) at §48 (decision unreasonable by reference to evidence before the defendant and “evidence and materials … which reasonably could have been available to the defendant if appropriate enquiries had been made”); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §§49-62, 160 (judicial review granted, upon consideration of material which claimants submitting a legally adequate inquiry would have elicited); R v Rochford District Council, ex p Ferdinando 8 September 1992 unreported (evidence admissible “to show what could, upon proper inquiry, have been elicited …”); R v Haringey LBC, ex p Norton (1998) 1 CCLR 168, 180F-G (describing the situation “where deficient enquiry led to ignorance of material facts or opinion and the evidence being proffered goes to the issue of what would have been discovered had due enquiry been made”); R v Criminal Injuries Compensation Board, ex p A [1999] AC 330 (judicial review granted on the basis of a report which was not, but should have been, before the decision-maker); R (O’Connor) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin) [2017] 1 WLR 2833 at §40 (judicial review granted, by reference to the facts that proper inquiries “would have elicited”). 17.2.7 Evidence of what fairness would have elicited. R (Sri Lalithambika Foods Ltd) v SSHD [2019] EWHC 761 (Admin) at §34 (“when the court assesses the procedural fairness of the decision or aspects of it, it can have regard to more recent evidence to show what would or might have happened if, for example, the claimant had been given a better or a different opportunity to provide evidence to answer the defendant’s concerns”). 17.2.8 Fresh evidence and remedy. Kenyon v Secretary of State for Housing Communities and Local Government [2020] EWCA Civ 302 at §29 (fresh evidence may be relevant to “debates about the appropriate remedy, should the challenge prove to be well-founded”, albeit “this process needs to be tightly controlled”); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §§60-61 (fresh evidence treated as relevant to discretionary withholding of a remedy); R (Seabrook Warehousing Ltd) v HMRC [2010] EWCA Civ 140 [2010] STC 996 at §68 (Etherton LJ: “the new material could not be relied upon directly in supporting or meeting the Claimants’ criticism of the decision-making process …, but they would be of relevance in determining what relief should be granted”); R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin) [2008] 4 All ER 403 at §32 (new developments not relevant to whether decision was lawful, but relevant to utility of remedy if retaken decision would be bound to be the same); R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 (question of discretionary refusal of remedy in light of new impact assessment). 17.2.9 Material which would be before the decision-maker on reconsideration. R v SSHD, ex p Launder [1997] 1 WLR 839, 860H-861B (Lord Hope: “The situation has changed since 43The

equivalent paragraph in a previous edition was relied on in Smart Gain Investment Ltd v TPB [2007] HKCFI 1133 at §95; Chief Executive LINZ v Te Whanau O Rangiwhakaahu Hapu Charitable Trust [2013] NZCA 33 (New Zealand Court of Appeal) at §117 (Glazebrook J).

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1995 when the decisions were taken. … Although we are concerned primarily with the reasonableness of the decisions at the time when they were taken we cannot ignore these developments. We are dealing in this case with concerns which have been expressed about human rights and the risks to the [claimant]’s life and liberty. If the expectations which the Secretary of State had when he took his decisions have not been borne out by events or are at risk of not being satisfied by the date of the [claimant]’s proposed return to Hong Kong, it would be your Lordships’ duty to set aside the decisions so that the matter may be reconsidered in the light of the changed circumstances”); R v Inner London North Coroner, ex p Touche [2001] EWCA Civ 383 [2001] QB 1206 at §36 (although decision was originally correct, coroner should have changed his mind on information subsequently brought to his attention); cf R (Gorlov) v Institute of Chartered Accountants in England and Wales [2002] EWHC 2202 (Admin) at §69 (wrong to use judicial review “to quash a decision in order to introduce fresh evidence”); {4.3} (futility); {4.5} (utility: hypothetical/academic issues). 17.2.10 Fresh evidence: new material and ongoing function/rolling judicial review. {5.4} (rolling judicial review); R (BBC) v Secretary of State for Justice [2012] EWHC 13 (Admin) [2013] 1 WLR 964 at §28 (Secretary of State having had the opportunity to consider the material and maintaining the decision); R (Kareem) v Lewisham LBC 18 January 2017 unreported (Collins J: fresh evidence appropriate in judicial review where the defendant has an ongoing statutory duty to consider whether to treat children as ‘children in need’); R (Clarke) v Ministry of Justice [2010] EWHC 3482 (Admin) at §7 (Court quashing a magistrates’ conviction which the Crown Court had upheld, because of an injustice in circumstances where CPS accepting that the claimant had now shown that he was innocent). 17.2.11 Fresh evidence: evidence ordered by the court. R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin) [2018] PTSR 142 at §21 (witness statement and documents provided in response to court’s direction at the hearing “to provide details of these formal arrangements” and “evidence as to the modus operandi of the standards committee”); Teh v SSHD [2018] EWHC 1586 (Admin) [2018] 1 WLR 4327 at §39 (permission to adduce additional post-hearing evidence granted, insofar as “a response to a direction that I made at the hearing, requiring the defendant to clarify the dates and current status of a number of the documents on which the defendant relies”). 17.2.12 Fresh evidence and precedent fact/objective fact. R v Secretary of State for the Environment, ex p Powis [1981] 1 WLR 584, 595H (“where the jurisdiction of the minister or inferior tribunal depends on a question of fact … the court may receive and consider additional evidence to determine the jurisdictional fact”); Eshugbayi Eleko v Government of Nigeria [1931] AC 662, 675 (on addressing precedent facts, Court to “give such directions as it thinks fit as to the production of other evidence, whether written or oral, and by crossexamination of deponents or otherwise”); White & Collins v Minister of Health [1939] 2 KB 838, 847-848 (issue decided “upon the evidence before us”); R v SSHD, ex p Momin Ali [1984] 1 WLR 663, 670H (Court required to consider “the evidence which is now available”); {17.3.14} (resolving disputed facts in judicial review: precedent fact). 17.2.13 Fresh evidence and error of fact. {49.3} (material error of fact); E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 at §68 (given “the relevance of showing a mistake of fact … there may need to be evidence to prove it”); R v Criminal Injuries Compensation Board, ex p A [1999] AC 330, 344G-345C (Lord Slynn); cf R v West Sussex Quarter Sessions, ex p Albert and Maud Johnson Trust Ltd [1974] 1 QB 24 (judicial review does not lie on the basis that fresh evidence has come to light which undermines a factual conclusion of the defendant) 17.2.14 Evidence of whether procedural fairness. R (Ortona Ltd) v Secretary of State for Communities and Local Government [2009] EWCA Civ 863 [2010] 1 P & CR 293 at §§23-27 (fresh evidence in CA, relevant to issue of apparent bias); R v Secretary of State for the Environment, ex p Powis [1981] 1 WLR 584, 595H (“where the question is whether essential procedural requirements were observed, the court may receive and consider additional evidence to determine the … procedural error”); R v Chief Constable of West Midlands Police, ex p Carroll (1995) 7 Admin LR 45, 49H-51B (evidence going to factual 226

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question whether a document had been made available to the claimant); {17.3.15} (resolving disputed facts in judicial review: procedural events). 17.2.15 Evidence as to conduct of decision-maker/third party. R v Secretary of State for the Environment, ex p Powis [1981] 1 WLR 584, 595H-596A (“where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or the parties before it. Examples of such misconduct are bias by the decision-making body, or fraud or perjury by a party. In each case fresh evidence is admissible to prove the particular misconduct alleged”); R v Mid-Glamorgan County Council, ex p B [1995] ELR 168, 179C (evidence going to whether bias and hostility at hearing); R v Knightsbridge Crown Court, ex p Goonatilleke [1986] QB 1 (whether perjury by witness); R v Horseferry Magistrates Court, ex p Bennett The Times 1 April 1994 (whether extradition abuse by prosecuting authorities). 17.2.16 Evidence as to impact and implications. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §24 (evidence relating to impact and implications of regulations challenged as unreasonably left unamended), §§54, 55; R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 (CA setting out in an appendix the 18 witnesses who had given evidence for the claimant in a successful systemic unfairness challenge); R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292 (Sir Louis Blom-Cooper QC providing a witness statement setting out his experience of inquiries being held in public); R v SSHD, ex p Simms [2000] 2 AC 115, 127D-128H (evidence of impact and implications of restriction; HL accepting evidence from solicitor Gareth Pierce as to the role of prisoners’ access to the media in uncovering miscarriages of justice); R v Warwickshire County Council, ex p Collymore [1995] ELR 217, 223D-E (evidence of practical effect of over-rigidly applied policy). 17.2.17 Fresh evidence and proportionality/justification. R (EU Lotto Ltd) v Secretary of State for Digital Culture Media and Sport [2018] EWHC 3111 (Admin) [2019] 1 CMLR 41 at §58(i) (“The Court must apply the proportionality test upon the basis of the most up to date evidence”), §58(ii) (“The Court is not limited to the evidence that existed as of the date of the relevant decision being impugned in the judicial review”); Scotch Whisky Association v Lord Advocate [2017] UKSC 76 [2017] SLT 1261 at §17 (fresh evidence admitted on an EU-compatibility challenge to an Act of the Scottish Parliament); R (BBC) v Secretary of State for Justice [2012] EWHC 13 (Admin) [2013] 1 WLR 964 at §27 (referring to “human rights cases” where Court “have been prepared to look at the up-to-date position”); R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182 [2018] QB 149 at §246 (“the court’s assessment is not limited to the evidence before the decision-maker but also has to take account of any additional evidence before the court”); R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) at §84; Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §141 (Lord Hobhouse: “Whether a particular statutory provision offends against any of the ‘Convention rights’ is an objective question to be answered having regard to all relevant evidence”), §142 (“The questions of justification and proportionality involve a sociological assessment – an assessment of what are the needs of society. This in part involves a legal examination of the content and legal effect of the relevant provision. But it also involves consideration of what is the mischief, social evil, danger etc which it is designed to deal with. Often these matters may already be within the knowledge of the court. But equally there will almost always be other evidentially valuable material which can be placed before the court which is relevant, such as reports that have been made, statistics that have been collected, and so on. Oral witnesses may have important evidence to give”); R (Limbuela) v SSHD [2004] EWCA Civ 540 [2004] QB 1440 at §113 (in HRA:ECHR Art 3 challenge as to destitution and asylum-seekers, relevant to focus on the up-to-date position) (HL is at [2005] UKHL 66 [2006] 1 AC 396). 17.2.18 Procedural flexibility: fresh evidence after draft judgment circulated. R (T) v Secretary of State for Education [2018] EWHC 2492 (Admin) at §11 (“just, fair and proportionate” to admit as new evidence a study published two days before draft judgment circulated, and to hear further submissions). 227

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17.2.19 Fresh evidence in the CA. See CPR 52.11(2); Ladd v Marshall [1954] 1 WLR 1489, 1491 (three conditions: “first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible”); KV (Sri Lanka) v SSHD [2018] EWCA Civ 2483 at §58 (Leggatt LJ: “In public law cases these principles remain the starting-point, though there is a discretion to depart from them in exceptional circumstances if the wider interests of justice so require”), §61 (“wider interests of justice” here); R (Davey) v Oxfordshire County Council [2017] EWCA Civ 1308 [2018] PTSR 281 at §47 (although “it would have been artificial” to exclude supplementary statements altogether, “our task is to decide whether or not the judge reached the right decision on the material before him”, and the fresh evidence had no “transformative effect”); E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 at §82 (“Ladd v Marshall principles … remain the starting point [in public law], but there is a discretion to depart from them in exceptional circumstances”), §91(iii) (“in exceptional circumstances where the interests of justice require”); Haile v Immigration Appeal Tribunal [2001] EWCA Civ 663 [2002] Imm AR 170 at §25 (Simon Brown LJ: “the old Ladd v Marshall principles … never did apply strictly in public law and judicial review”); R v SSHD, ex p Turgut [2001] 1 All ER 719, 736e-f (“The normal rules governing the reception of evidence on appeals will normally apply”); R v SSHD, ex p Gardian [1996] COD 306 (CA) (further evidence not admitted); R v Chief Constable of Sussex, ex p International Traders’ Ferry Ltd [1998] QB 477 (CA), 490F-491G (further evidence reluctantly considered, at the request of the parties); R v SSHD, ex p Simms [1999] QB 349 (CA), 357C (further evidence relating to reasons for impugned ban); A v SSHD [2003] EWCA Civ 175 [2003] INLR 249 at §20 (in asylum/human rights case “the proper approach [is] to consider the wider interests of justice”); R (Bagdanavicius) v SSHD [2003] EWCA Civ 1605 [2004] 1 WLR 1207 at §71 (CA considering fresh evidence, given obligation of “anxious scrutiny”); R v SSHD, ex p Turgut [2001] 1 All ER 719, 736d (where Court of Appeal considering permission or the hearing of the judicial review, having reserved the matter to itself, same principles applicable to fresh evidence as in the High Court); {23.1.17} (CA reserving substantive hearing to itself). 17.2.20 Fresh evidence in the SC. Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15 [2011] 2 AC 304 at §§40-42 (applying Ladd v Marshall principles to reject fresh evidence in a planning statutory appeal); R v SSHD, ex p Simms [2000] 2 AC 115, 127D-128G (material made available to House of Lords, describing “in compelling detail” as to importance of communications between prisoners and journalists), considered in E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 at §75; R (S) v Chief Constable of South Yorkshire [2004] UKHL 39 [2004] 1 WLR 2196 at §18 (strongly deprecating last minute attempt to introduce letter); cf Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32 [2012] 1 AC 1 at §39 (PC refusing to allow reliance on new evidence of supposed justification).

17.3 Judicial review and factual disputes.44 Judicial review has often been said to be unsuitable for deciding contested questions of fact. Judicial review conventionally operates as a relatively smooth and speedy legal process on written evidence and without it being necessary to resolve disputed facts. The existence of factual disputes can be a reason why another available forum is preferable. Importantly however, the judicial review Court may need to make findings of fact (with or without oral evidence), especially if to do so is crucial to whether a ground for intervention is made out. Where necessary,

44The equivalent paragraph in a previous edition was relied on in Chan Mei Yiu Paddy v Secretary of Justice [2008] HKCFI

337 at §6; Lai Tak Shing v Director of Home Affairs [2006] HKCA 378 at §50; R (Shoesmith) v Ofsted [2010] EWHC 852 (Admin) at §34 (Foskett J); R (AH) v Cornwall Council [2010] EWHC 3192 (Admin) at §25 (HHJ Seys Llewellyn QC); ZM v HMRC [2013] UKUT 547 (AAC) at §44 (UTJ Ward).

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judicial review can and must be (and become) a suitable forum for deciding questions of fact. 17.3.1 Judicial review: not generally necessary/appropriate to resolve disputed facts. R (LXD) v Chief Constable of Merseyside Police [2019] EWHC 1685 (Admin) at §107 (Dingemans J: “the processes of the Administrative Court, which are designed to permit the speedy auditing by the Court of the legality of decisions, are not well suited to resolving disputes of fact”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §9 (“in judicial review proceedings … [i]t is usually both unnecessary and inappropriate for the court to resolve factual disputes”); Ali v Birmingham City Council [2010] UKSC 8 [2010] 2 AC 39 at §78 (Lord Kerr: “judicial review might be said to be a singularly inapt means of examining issues of credibility”; “Judicial review is suitable to deal with issues such as the rationality of the judgment reached; whether relevant factors have been taken into account; whether sufficient opportunity has been given to the affected party to make representations etc. All of these take place on – if not an agreed factual matrix – at least one in which the areas of factual controversy are confined. It is quite different when one comes to decide a sharply conflicting factual issue”); R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 at §33 (“judicial review … is not well suited to the determination of disputed questions of fact”); Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §2 (Lord Bingham: “applications for judicial review … characteristically, raise an issue of law, the facts being common ground or relevant only to show how the issue arises”), §32 (Lord Carswell: “applications for judicial review … generally raise legal issues”); R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748 at §31 (“The Administrative Court does not habitually decide questions of fact on contested evidence and is not generally equipped to do so. Oral evidence is not normally a feature”); Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406 [2004] QB 1124 at §53 (“the Administrative Court … does not normally concern itself with issues of disputed fact”); R v Derbyshire County Council, ex p Noble [1990] ICR 808, 813C-D (“Cross-examination and [disclosure] can take place on applications for judicial review, but in the ordinary way judicial review is designed to deal with matters which can be resolved without resorting to those procedures”); R (St Helens Borough Council) v Manchester Primary Care Trust [2008] EWCA Civ 931 at §13 (“a court hearing a judicial review application normally receives evidence in writing only, and does not set about determining questions of disputed fact”; “The court does not often itself make a factual decision which the primary decision maker has not made”). 17.3.2 Oral evidence is very exceptional in judicial review. Adesotu v Lewisham LBC [2019] EWCA Civ 1405 [2019] 1 WLR 5637 at §22, applying Bubb v Wandsworth LBC [2011] EWCA Civ 1285 [2012] PTSR 1011 at §24 (Lord Neuberger MR: “it is, as a matter of principle, open to a judge, hearing a judicial review application, to permit one or more parties to adduce oral evidence. … However, for reasons of both principle and practice, such a course should only be taken in the most exceptional case. As its name suggests, judicial review involves a judge reviewing a decision, not making it; if the judge receives evidence so as to make fresh findings of fact for himself, he is likely to make his own decision rather than to review the original decision. Also, if judges regularly allow witnesses and cross-examination in judicial review cases, the court time and legal costs involved in such cases will spiral”). 17.3.3 Disclosure/cross-examination generally unnecessary in judicial review.45 R v Save Guana Cay Reef Association [2009] UKPC 44 at §47 (Lord Walker: “orders for [disclosure] and cross-examination are still exceptional in judicial review proceedings, for good reason. Such proceedings are essentially a review of official decision-making, and need to be determined without any avoidable delay”); Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §4 (judicial review characteristically raising issues of law, with facts common ground or of background relevance only, so disclosure of

45The

equivalent paragraph in a previous edition was relied on in Re Williamson [2008] NIQB 81 at §33 (Gillen J).

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documents usually unnecessary), §56 (“likely to remain exceptional”); R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 1027A-B (powers “to be sparingly used”); R v SSHD, ex p Zamir [1980] AC 930, 949C-D (“cross-examination, though allowable, does not take place in practice”); R v Arts Council of England, ex p Women’s Playhouse Trust [1998] COD 175 (transcript) (Laws J: “neither [disclosure] nor cross-examination is automatic”); R (G) v London Borough of Ealing [2002] EWHC 250 (Admin) at §14 (referring to those “cases – no doubt not very many – where justice simply cannot be done unless there is cross-examination”); Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 [2003] 1 WLR 1763 at §5 (explaining that historically cross-examination has been “in practice rarely permitted” in judicial review proceedings); R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) [2012] 1 WLR 838 at §21 (further disclosure unnecessary, where judicial review ground viable on the documents already disclosed); R (T) v Ministry of Justice [2018] EWHC 2615 (Admin) [2018] ACD 134 at §18 (cross-examination of expert not necessary); {17.4} oral evidence/cross-examination in judicial review); {17.5} (disclosure/ further information in judicial review). 17.3.4 Factual enquiry as the function of the public authority. {13.2} (restraint and factual appreciation); R v West Sussex County Council, ex p Wenman (1993) 5 Admin LR 145, 154A-B (judicial review “is not appropriate for the kind of fact finding exercise on disputed facts that a court at first instance, or a statutory body with statutory responsibilities to investigate facts, is equipped to perform”); R v City of Westminster, ex p Moozary-Oraky (1994) 26 HLR 213, 221 (“Since the issue [here] would always in the first instance be determined by the local authority under its [statutory] duty to inquire … there is good reason for not substituting the courtroom for the town hall in deciding an unresolved factual dispute”); R v East Sussex County Council, ex p Tandy [1998] AC 714 (CA), 724F (“cross-examination is rare in judicial review proceedings, … rightly since a decision can if necessary be remitted to the deciding authority for reconsideration”). 17.3.5 Alternative remedy/forum more suitable for resolving disputed facts. {P36} (alternative remedy); Sher v Chief Constable of Greater Manchester Police [2010] EWHC 1859 (Admin) [2011] 2 All ER 364 at §§72, 80 (judicial review inappropriate where private law claims available for wrongful arrest and unlawful imprisonment, being “fact-specific claims … wholly inappropriate for judicial review”); R v SSHD, ex p Swati [1986] 1 WLR 477, 487H (“statutory appeal procedure … clearly the appropriate method of challenging the immigration officer’s decision. It is a procedure which enables the full facts to be ascertained. The process of judicial review is not appropriate for a purely factual challenge”); R v London Borough of Brent, ex p Sawyers [1993] COD 416 (statutory appeal to the Secretary of State much more suitable than judicial review, for determination what was reasonably practicable for local authority to do in relation to suitability of housing); R v Folkestone Magistrates’ Court, ex p Bradley [1994] COD 138 (appropriate remedy appeal to the Crown Court, which could resolve questions of fact); R v London Borough of Hackney, ex p GC [1995] ELR 144 (Auld J), 154F-G (Secretary of State, on statutory appeal, “far better equipped” for fact-finding exercise); R v Oldbury Justices, ex p Smith (1995) 7 Admin LR 315, 327C-D (“In a case such as the present, which bristles with factual difficulties, the only convenient and proper way to get it before the Divisional Court is by case stated and not by way of application for judicial review”); R v Croydon Justices, ex p Dean [1993] QB 769, 776E (“If it is necessary for the disputed issues of fact in this case to be resolved by oral evidence”, better to “leave it to the Crown Court to decide whether there is abuse of process”); R v Birmingham City Council, ex p A [1997] 2 FLR 841 (issues needing oral evidence, better suited to a statutory complaints investigation); R v Westminster City Council, ex p P (1998) 1 CCLR 486, 492D, G (disputed issue of fact more appropriate for Secretary of State’s default powers than judicial review); R (Davies) v HMRC [2008] EWCA Civ 933 at §7 (“if a tribunal of fact exists which can find the relevant facts it is normally good practice to postpone judicial review until after the facts have been found”); R (Faisaltex Ltd) v Crown Court at Preston [2008] EWHC 2832 (Admin) [2009] 1 WLR 1687 at §91 (judicial review an unsatisfactory tool for fact-finding as to whether search unduly wide, given availability of private law remedy). 230

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17.3.6 Fact-resolution and transfer out from the Administrative Court. {21.5.30} (direction for transfer out of the Administrative Court); {2.2.13} (transfer from High Court to UT); {2.2.16} (transfer to the UT: illustrations); R (LXD) v Chief Constable of Merseyside Police [2019] EWHC 1685 (Admin) at §107 (Dingemans J, explaining that in Art 2 judicial review claim involving factual disputes, transfer to the QBD under CPR 54.20, to continue as if by CPR Part 7 may be appropriate); R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748 at §§31-32 (transfer to the Upper Tribunal of age assessment case involving factual determination of precedent fact); R (AS) v Croydon LBC [2011] EWHC 2091 (Admin) at §25 (age assessments generally transferred to the UT); R (MM) v Secretary of State for Work and Pensions [2012] EWHC 2106 (Admin) at §60 (transfer to the UT because “a fact sensitive case” where “a tribunal consisting of a member or members who may have experience of the workings of the state benefit system would … be an advantage”); R (MH) v SSHD [2009] EWHC 2506 (Admin) at §7 (where “a substantial dispute of fact” arises in judicial review, “either party may apply to the court for an order under CPR Part 8.1(3) for the claim to … be treated … as a Part 7 claim”); R v Chief Constable of Lancashire, ex p Parker [1993] QB 577, 581C-D (“common ground that the issues of principle should be determined by this court and that the factual issues, including the question whether the damages should include aggravated and exemplary damages, should be determined by a single judge as if the proceedings had been begun by [claim form action]”); R v London Commodity Exchange (1986) Ltd, ex p Brealey [1994] COD 145 (order for transfer out, because essentially private law claim and disputed facts); cf Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15 [2006] 1 AC 328 at §30 (constitutional motion may be appropriate for continuance by writ where factual dispute emerging). 17.3.7 Fact-resolution may be necessary/no insurmountable problem.46 R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §51 (SC applying a standard on judicial review, concerning the impact of prorogation on constitutional principles, which involved deciding “a question of fact which presents no greater difficulty than many other questions of fact which are routinely decided by the courts”); Smart v DPP [2019] UKPC 35 at §34 (judicial review court can order interrogatories or cross-examination); R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §126 (Lord Reed: “although judicial review does not usually require the resolution of disputes of fact, or cross-examination, that is not because they lie beyond the scope of the procedure. Judicial review is a sufficiently flexible form of procedure to enable the court to deal with the situation before it as required”); R (Talpada) v SSHD [2018] EWCA Civ 841 at §54 (Underhill LJ: “in judicial review proceedings … a Court or Tribunal should not be shy about hearing oral evidence where, exceptionally, it is genuinely necessary”, referring to Patel [2015] EWCA Civ 645 §§11, 64, and Ahsan [2017] EWCA Civ 2009 at §31); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §10 (“factual issues can arise, for example … when an argument is made that a public authority failed to follow the rules of procedural fairness” and “cases under the Human Rights Act may call for a different approach to be taken to the resolution of factual disputes depending on the nature of the issue”); R (L) v Chief Constable of Surrey [2017] EWHC 129 (Admin) [2017] 1 WLR 2047 at §37 (Jay J, claim raising “factual disputes” but “issues appropriate for resolution in this public law jurisdiction, as well as being capable of being fairly resolved in that forum”); Trim v North Dorset District Council [2010] EWCA Civ 1446 [2011] 1 WLR 1901 at §24 (Carnwath LJ: “The need to resolve [factual] disputes does not often arise, because of the nature of most judicial review proceedings. But, when it does arise, it does not create any particular conceptual or procedural problems. The permission stage gives the court full control of the proceedings. It may give any necessary directions for the attendance of witnesses and cross-examination”); R v Secretary of State for the Department of Environment, ex p London Borough of Islington (1991) [1997] JR 121, 128 (Nolan LJ: “Disputed questions of fact do not normally arise in judicial review cases, but they 46The

equivalent paragraph in a previous edition was relied on in R (K & AC Jackson & Son) v Department for the Environment Food and Rural Affairs [2011] EWHC 956 (Admin) at §57 (McCombe J); R (Archer) v HMRC [2017] EWHC 296 (Admin) [2017] 1 WLR 2066 at §30 (Jay J).

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can of course arise and they may be crucial”); Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 582E (judicial review of prison governors for error of law or abuse of power “may and almost certainly will in some cases involve questions of fact which are inevitably more appropriately dealt with by the court”), 567F-H (need to “ascertain the facts on which the validity of the governor’s adjudication essentially depends”); Doherty v Birmingham City Council [2008] UKHL 57 [2009] AC 367 at §68, §138] (if necessary, judicial review can be “adjusted so as to enable issues of fact to be judicially resolved”) {17.4} (oral evidence/crossexamination in judicial review); {17.5} (disclosure/further information in judicial review). 17.3.8 Findings of fact on judicial review: drawing inferences. R (Olabinjo) v Westminster Magistrates Court [2020] EWHC 1093 (Admin) at §4 (Holroyde LJ and William Davis J: “where a proper inference can be drawn from the available materials, this court can make findings of fact even in proceedings for judicial review”), §44 (court “satisfied” based on “contemporaneous note”); Smart v DPP [2019] UKPC 35 at §34 (“it was for the trial judge to draw such inferences as she thought appropriate on the evidence as presented”); R (BACI Bedfordshire Ltd) v Environment Agency [2019] EWCA Civ 1962 [2020] Env LR 16 at §54 (“The clear inference to be drawn from the relevant documents is that [the defendant] adopted a scientifically sound approach”); R (Goldsmith) v Secretary of State for Justice [2019] EWHC 3247 (Admin) at §114 (absence of reference in decision letter to oral hearing does not mean that course was not actually considered); R (Palmer) v Herefordshire Council [2016] EWCA Civ 1061 [2017] 1 WLR 411 at §7 (Lewison LJ, describing two typical inferences: “Where the decision-maker refers to the statutory duty … there is an inference that he has complied with it, absent some positive indication to the contrary”; “In examining the reasons given by a local planning authority, it is a reasonable inference that, in the absence of contrary evidence, they accepted the reasoning of an officer’s report, at all events where they follow the officer’s recommendation”); R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871 at §86 (“inferences can be drawn from the materials placed before the body, the terms of any resolution and report adopted”); R (Jedwell) v Denbighshire County Council [2015] EWCA Civ 1232 [2016] PTSR 715 at §59 (High Court was wrong to reach conclusions “largely based on inference and extrapolation”, instead of allowing permission to cross-examine planning officer); {12.3.4} (appellate court’s approach: findings of fact as inferences from a document). 17.3.9 Whether resolution of a disputed factual question is necessary. R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 714 (Admin) [2009] AC 756 at §8 (not necessary to resolve factual questions “unless omission inhibits a correct legal conclusion”) (HL is [2008] UKHL 60 [2009] AC 756); R (LXD) v Chief Constable of Merseyside Police [2019] EWHC 1685 (Admin) at §§30-32 (Dingemans J, explaining that in an Art 2 claim involving factual disputes, court would if necessary have given an interim judgment and made arrangements to hear witnesses orally), §107 (court able, in the event, to decide the claim without resolving them); R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) [2010] HRLR 12 at §19 (Scott Baker LJ, referring to cases where “crucial factual disputes” arise on judicial review, for example “relating to jurisdiction of the ECHR and the engagement of its articles”), §29 (“the parties and the court should always scrutinise with care the stance of parties to judicial review applications (and in particular those concerning human rights claims) to ascertain if there is any critical factual issue which requires orders for cross-examination of the makers of witness statements or disclosure as being … ‘necessary in order to resolve the matter fairly and accurately’. Courts should not be reluctant to make such orders in suitable cases, which are especially likely to arise in claims based on the ECHR”), §64 (“the parties have a clear obligation in any judicial review case to consider at all times whether there is a crucial issue in the case in the form of a hard-edged issue … because this will be relevant in determining whether the court should make orders for cross-examination and disclosure”). 17.3.10 Presumptive acceptance of parties’ witness statement evidence. S v Airedale NHS Trust [2002] EWHC 1780 (Admin) at §18 (describing the “convention … that at trial in general the evidence of a witness is accepted unless he is cross-examined and is thus given the 232

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opportunity to rebut the allegations made against him”, unless “there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away” so that “the witness’s testimony is manifestly wrong”; “The general rule applies as much in judicial review proceedings as in other litigation”), applied in R (Safeer) v SSHD [2018] EWCA Civ 2518 at §18; R (Jones) v Liverpool and Knowsley Magistrates’ Court [2016] EWHC 3520 (Admin) [2017] ACD 24 at §§3, 29, 44 (DC accepting written evidence from claimant’s witness, in the context of disputed facts, where cross-examination not sought). 17.3.11 Presumptive acceptance of defendant’s witness statement evidence. R (Soltany) v SSHD [2020] EWHC 2291 (Admin) at §88 (Cavanagh J, describing “the approach that I have adopted in finding the facts. … Where there is clear and incontrovertible evidence in support of contentions made on behalf of the claimants, I have accepted it. Where there is an outright dispute between the parties, I have accepted the defendant’s evidence, unless it is internally contradictory, implausible, or inconsistent with other incontrovertible evidence”); R (Sri Lalithambika Foods Ltd) v SSHD [2019] EWHC 761 (Admin) at §35 (Charles Bourne QC: “Where the facts are in dispute in a judicial review application, in the absence of crossexamination the facts stated by the defendant’s witnesses must be assumed to be correct unless there are documents or other objective material showing that they cannot be correct”), citing R (Safeer) v SSHD [2018] EWCA Civ 2518 at §19 (Davies LJ: “The basic rule is clear, namely that where there is a dispute on the evidence in a judicial review application then in the absence of cross-examination the facts in the defendant’s evidence must be assumed to be correct”); R (Singh) v SSHD [2018] EWCA Civ 2861 at §16 (“where there is a dispute on the evidence in a judicial review application, the facts stated in the defendant’s evidence will be accepted unless there has been an application to cross-examine the relevant witness or the evidence ‘cannot be correct’”); R (FDA) v Minister for the Cabinet Office [2018] EWHC 2746 (Admin) at §11 (“The basic rule in judicial review is that where there is an evidential dispute, absent cross-examination the facts must be assumed to be those which favour the Defendant, unless there is documentary or other objective evidence that is inconsistent with the Defendant’s evidence and cannot sensibly be explained away”); R (MAS Group Holdings Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2019] EWHC 158 (Admin) at §188 (absent cross-examination, facts in witness statements assumed in favour of public authority); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §35 (appropriate to “proceed … on the footing that the decision was genuinely made for the reasons given, and not for some undisclosed or collateral reason … it should be noted that no application was made to cross-examine”), §65, §97 (“It would, no doubt, have been open to the claimants to have challenged the factual basis for the Government’s views before the Administrative Court. They could have asked that [the relevant individual] be cross-examined and subjected those views to searching examination”), §§114, 117; R v Board of Visitors of Hull Prison, ex p St Germain (No 2) [1979] 1 WLR 1401, 1410H (“Since we have had to decide this matter on affidavit evidence without the benefit of cross-examination, we are obliged to take the facts where they are in issue as they are deposed to on behalf of the board”), applied in R (A) v Secretary of State for Justice [2010] EWHC 1250 (Admin) at §2; R (MWH & H Ward Estates Ltd) v Monmouthshire County Council [2002] EWCA Civ 1915 at §29 (wrong to “go behind the evidence” as to whether options were considered). 17.3.12 Making findings of fact from written evidence.47 R (Talpada) v SSHD [2018] EWCA Civ 841 at §2 (Hallett LJ: “If there is a dispute of fact, and it is relevant to the legal issues which arise in a claim for judicial review, the court usually proceeds on written evidence. Since the burden of proof is usually on the person who asserts a fact to be true, if that burden is not discharged, the court will proceed on the basis that the fact has not been proved”); R (Kerswell) v Lewisham LBC [2019] EWHC 754 (Admin) at §§33, 39 (rejecting planning officer’s witness statement saying he took into account an aspect missing from the report); R (Jones) v Liverpool and Knowsley Magistrates’ Court [2016] EWHC 3520 (Admin) [2017] 47The

equivalent paragraph in a previous edition was relied on in R (A) v Chief Constable of Kent [2013] EWCA Civ 1706 at §60 (Beatson LJ).

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ACD 24 at §§28-32 (DC making findings of fact from the written evidence); R (Harrison) v Birmingham Magistrates’ Court [2011] EWCA Civ 332 (CA finding on the documents that claimant did not receive notice of forfeiture hearing); R (N) v A LBC [2010] EWHC 3602 (Admin) at §15 (finding as a fact, on the documents by reason of “the weight of the evidence”, that the decision was made on a date before, not after, the claimant’s representations had been heard); R (MH) v SSHD [2009] EWHC 2506 (Admin) at §10 (where SSHD had not made a timely application to cross-examine the claimant, factual dispute resolved on the written evidence, treating the claimants’ “witness statements with a measure of generosity, since he was not challenged on it by way of cross-examination”, but evaluating it “critically by reference to [the] contemporaneous records, other statements made by the Claimant and inherent probabilities”); R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55 [2005] 2 AC 1 at §97 (concluding that the evidence, albeit no oral evidence, supporting the inference that system had been operated in a directly discriminatory fashion); Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs [2011] EWCA Civ 1540 [2012] 1 WLR 1462 at §§39, 56 (rejecting unsupported assertion in Secretary of State’s witness statement that request to US authorities would be “futile”: see SC [2012] UKSC 48 [2013] 1 AC 614 at §§15, 75); R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 at §24 (rejecting assertion in witness statement); Attorney General v News Group Newspapers Plc [1989] QB 110, 127-128 (observations as to rejecting contents of affidavits); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1165F (“conflict of evidence relating to the interview”, as to which preferring one version “on the probabilities”); R v London Borough of Newham, ex p Gentle (1994) 26 HLR 466, 470 (rejecting defendant’s affidavit evidence); R v Highbury Corner Metropolitan Stipendiary Magistrate, ex p Di Matteo [1991] 1 WLR 1374, 1378F (accepting affidavit evidence of claimant’s solicitors “in preference to the recollection of the magistrate, as recorded in his affidavit”); R v Central Criminal Court, ex p Randle [1991] 1 WLR 1087, 1110A-B (“There are inevitably situations in which facts have necessarily to be found, albeit the evidence is on affidavit”); Attorney-General of Trinidad and Tobago v Phillip [1995] 1 AC 396, 405D-H (PC unravelling picture from affidavit evidence); R v North Derbyshire Health Authority, ex p Fisher (1998) 10 Admin LR 27, 44C-45B, 47A-C (expressing serious doubts about what Court told in the evidence as to the authority’s true position); London Borough of Islington v Camp (1999) [2004] LGR 58, 66g (“In each case the court has to make a judgment on the basis of the factual material before it. There are often gaps in the evidence. That is something with which the court has to cope as best it can”); R v Northavon District Council, ex p Smith [1994] 2 AC 402, 411E-G (“question of fact, to be answered in the light of the evidence which was placed before the trial judge”); R (Professional Contractors Ltd) v Commissioners of Inland Revenue [2001] EWHC Admin 236 [2001] EuLR 514 at §20 (making findings) (CA is [2001] EWCA Civ 1945 [2002] EuLR 329); R (Maqsood) v Special Adjudicator [2002] Imm AR 268 at §§21-27 (making findings on the written evidence, as to whether notice of a hearing had been received by solicitors). 17.3.13 Witness statements of decision-makers relating to bias. Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at §19 (as to real danger of bias, and whether decisionmaker aware of an alleged disqualifying matter: “While a reviewing court may receive a written statement from any judge, lay justice or juror specifying what he or she knew at any relevant time, the court is not necessarily bound to accept such statement at its face value. Much will depend on the nature of the fact of which ignorance is asserted, the source of the statement, the effect of any corroborative or contradictory statement, the inherent probabilities and all the circumstances of the case in question”; “Nor will the reviewing court pay attention to any statement by the judge concerning the impact of any knowledge on his mind or his decision: the insidious nature of bias makes such a statement of little value, and it is for the reviewing court and not the judge whose impartiality is challenged to assess the risk that some illegitimate extraneous consideration may have influenced the decision”); R (Georgiou) v London Borough of Enfield [2004] EWHC 779 (Admin) [2004] LGR 497 at §36 (Richards J: “Having regard to the objective nature of the question of apparent bias, I do not think that any significant weight is to be attached to the members’ own witness statements 234

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in which they state that they did approach the planning decision with open minds”, referring to Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 at §104); R (A1 Veg Ltd) v Hounslow LBC [2003] EWHC 3112 (Admin) [2004] LGR 536 at §79; cf. Singh v SSHD [2016] EWCA Civ 492 [2016] 4 WLR 183 at §53(2) (“If an allegation of bias or misconduct is raised which is adjudged sufficient to merit the grant of permission to appeal then it should be normal practice for the Upper Tribunal thereafter to obtain the written comments of the judge concerned: both in fairness to the judge and to provide the Upper Tribunal with a fuller picture”). 17.3.14 Resolving disputed facts in judicial review: precedent fact. R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 at §33 (judicial review can be adapted to allow determination of disputed question of fact “if the need arises”, “as the cases on jurisdictional fact illustrate”); R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748 at §4 (“the question whether a person is or is not a child … is a fact precedent to the exercise of the local authority’s powers … [which] it is for the court to decide by judicial review. This means that the court hearing the judicial review claim will often have to determine the fact of a claimant’s age by hearing and adjudicating upon oral evidence”); R (Maiden Outdoor Advertising Ltd) v Lambeth LBC [2003] EWHC 1224 (Admin) at §§36-37 (Court entitled to decide question of precedent fact for itself, including by directing for continuation of the proceedings as if begun by ordinary claim form action); R (Ullah) v SSHD [2003] EWCA Civ 1366 at §28 (discussing the precedent fact issue of “illegal entrant”, and the court’s scrutiny of written evidence with cross-examination where appropriate), §34 (here, written evidence not of sufficient weight to decide the issue of fact against the claimant, to the necessary level of proof); R v Arts Council of England, ex p Women’s Playhouse Trust [1998] COD 175 (transcript) (referring to “cases in which it is the court’s duty to resolve questions of primary fact” including “where some jurisdictional fact has to be established”); R v City of Westminster, ex p Moozary-Oraky (1994) 26 HLR 213 (although precedent fact which the Court could resolve itself, with cross-examination, preferable here to quash the decision and remit it for consideration by the council); {49.1} (precedent fact); {49.2} (objective question of fact); {17.2.12} (fresh evidence and precedent fact/objective fact); {17.4.8} (cross-examination in judicial review: precedent fact/objective fact). 17.3.15 Resolving disputed facts in judicial review: procedural events. {17.4.13} (oral evidence/cross-examination in judicial review: procedural fairness/facts regarding process); R (Mackay) v Parole Board [2019] EWHC 1178 (Admin) at §§44-45 (parole board’s assertion as to claimant’s conduct at hearing not supported by contemporaneous notes or witness statements); R (Coventry Gliding Club Ltd) v Harborough District Council [2019] EWHC 3059 (Admin) at §11 (whether discharge of statutory requirement of notice placed near land “a question of objective fact to be determined by the court”); R (Matthews) v City of York Council [2018] EWHC 2102 (Admin) at §19 (finding of fact that email was received); R (Jones) v Liverpool and Knowsley Magistrates’ Court [2016] EWHC 3520 (Admin) [2017] ACD 24 at §§28-32 (DC making findings of fact as to circumstances in which claimant did not attend trial); R (K and AC Jackson & Son) v Department for the Environment Food and Rural Affairs [2011] EWHC 956 (Admin) (Court resolving factual dispute as to what happened to a blood-testing sample, to decide whether action was compatible with policy); R (Bottomley) v General Commissioners of Income Tax [2009] EWHC 1708 (Admin) [2009] STC 2532 (finding as a fact that alleged biased comment was not made); R v Bank of England, ex p Mellstrom [1995] CLC 232, 238E-240B (finding as a fact that detrimental material, not disclosed to claimant, was not relied on by decision-maker); R v Harrow Crown Court, ex p Dave [1994] 1 WLR 98, 101H-102D (resolving whether prosecution disclosed its witness’s prior convictions to the defence); R v Mid-Glamorgan County Council, ex p B [1995] ELR 168, 179C (“necessary for me to come to a conclusion on [the] conflict of evidence before determining the issue of bias and unfair conduct”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1165F (resolving “conflict of evidence relating to the interview”); R v Reigate Justices, ex p Curl [1991] COD 66 (factual dispute as to what had occurred in magistrates’ proceedings; position presumed to be as asserted by defendant); R v Chief Constable of the West Midlands Police, ex p Carroll (1995) 7 Admin LR 45, 50A, 53G-H (DC decided disputed question of whether or not the claimant had been shown a report). 235

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17.3.16 Resolving disputed facts in judicial review: human rights issues. R (Tracey) v Cambridge University Hospitals NHS Foundation Trust [2012] EWHC 3670 (Admin) [2013] ACD 33 (judicial review of Art 2 and Art 8 claim regarding non-resuscitation notices and policy; Nicola Davies J, making findings of fact) at §4 (explaining that Ouseley J had “ordered that the matter be listed for a hearing to determine the disputed issues of fact surrounding the circumstances in which the two … notices were placed in the medical records”) (CA is [2014] EWCA Civ 822 [2015] QB 543: see §9); R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §92 (applying Art 8 proportionality, where defendant had refused ILR based on claimant’s dishonesty, judicial review court/tribunal “will have to decide for itself whether the discrepancy was the result of dishonest conduct”), §104 (“That allegation has to be adjudicated … on its merits”), §105 (need to “give the claimant an opportunity to adduce evidence” and “normally … an opportunity to give oral evidence himself”); R (LXD) v Chief Constable of Merseyside Police [2019] EWHC 1685 (Admin) at §§30-32 (Dingemans J, explaining that in an Art 2 claim involving factual disputes, court would if necessary have given an interim judgment and made arrangements to hear witnesses orally), §107 (court able in the event to decide the claim without resolving them); R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380 at §46 (significance of s.6 HRA and consideration of facts), §47 (“even in the course of a judicial review, the residual power of the court to determine facts, and to that end to receive evidence including oral evidence, needs to be recognised”); R (E) v Ashworth Hospital Authority [2001] EWHC Admin 1089 (conflict of expert opinion, and Court deciding that defendant’s approach justified by reference to HRA:ECHR Art 8); {17.4.11} (cross-examination in judicial review: human rights issues);{17.5.19} (disclosure and HRA/proportionality); {17.2.17} (fresh evidence and proportionality/justification). 17.3.17 Resolving disputed facts in judicial review: legitimate expectation. CH v Sutton & Merton Primary Care Trust [2004] EWHC 2984 (Admin) (2005) 8 CCLR 5 at §20 (need to resolve factual issues to decide whether overriding public interest for justified breach of legitimate expectation); {17.4.9} (cross-examination in judicial review: legitimate expectation). 17.3.18 Resolving disputed facts: bad faith. {52.1} (bad faith); R v Derbyshire County Council, ex p Times Supplements Ltd (1991) 3 Admin LR 241 (judicial review granted for bad faith), 247G-248C (although it was “open to us … to reject the contents of those affidavits in whole or in part”, citing Attorney General v News Group Newspapers Plc [1989] QB 110, 127-128, counsel “sought and obtained [permission] to cross-examine … the councillors who appeared before us”), 252E (“I did not believe them. The longer they were cross-examined the more manifest it became that they were implausibly endeavouring to buttress the insupportable … their evidence … displayed an unworthy lack of candour”); cf R v Bassetlaw District Council, ex p Oxby The Times 18 December 1997 (allegation of fraud against individual councillors appropriate for writ action rather than judicial review); R v Tower Hamlets LBC, ex p Luck [1999] COD 294 (bad faith allegation to be pursued in private law action). 17.3.19 Resolving disputed facts: improper purpose. R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin) [2018] PTSR 142 at §174 (Green J making findings of fact, after oral evidence and cross-examination, in relation to whether improper purpose). 17.3.20 Resolving disputed facts: extradition abuse. {65.1.2} (extradition abuse of power, vitiating domestic proceedings); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 52B-53A (court having “jurisdiction to inquire into such matters”); R v Horseferry Road Magistrates’ Court, ex p Bennett (No 2) [1994] 1 All ER 289, 291b (disclosure ordered of documents which “go to the very heart of a factual dispute between the parties, a dispute which if resolved in the [claimant]’s favour could well bring an end to the criminal proceedings against him”), 292c-d (court needing to resolve the “direct conflict” in the evidence filed); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] COD 321 (see transcript) (Henry LJ, ordering cross-examination by video link: “This is very different from the run of the mill of [judicial review] cases where cross-examination and [disclosure] are both unusual because normally unnecessary. Here they are necessary for the Court properly to discharge the 236

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task that the House of Lords has remitted to them”); R v Horseferry Road Magistrates’ Court, ex p Bennett (No 2) The Times 1 April 1994 (DC resolving the dispute, on the basis that: “Against the well-intentioned oral evidence there is one decisive contemporary document”). (The Scottish courts subsequently made a contrary finding as to the disputed facts: see Bennett v H.M. Advocate The Times 2 December 1994.) 17.3.21 Fact-finding in judicial review: other. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §51 (SC applying a standard on judicial review, concerning the impact of prorogation on constitutional principles, which involved deciding: “a question of fact”). 17.3.22 Fresh evidence in judicial review. {17.2}

17.4 Oral evidence/cross-examination in judicial review.48 Courts will not normally need to order oral evidence and cross-examination in judicial review. However, such orders can be made, and should be where justice requires it, as where it is necessary for the fair determination of the case. 17.4.1 Oral evidence/cross-examination in judicial review: rules. CPR 8.6(2) (“The court may require or permit a party to give oral evidence at the hearing”), 8.6(3) (“The court may give directions requiring the attendance for cross-examination of a witness who has given written evidence”); {17.3} (judicial review and factual disputes); Administrative Court: Judicial Review Guide (2020 edition) at §10.2.2). 17.4.2 Oral evidence is very exceptional in judicial review. {17.3.2} 17.4.3 Importance of oral evidence/cross-examination in judicial review. R (Talpada) v SSHD [2018] EWCA Civ 841 at §54 (Underhill LJ: “in judicial review proceedings … a Court or Tribunal should not be shy about hearing oral evidence where, exceptionally, it is genuinely necessary”, referring to Patel [2015] EWCA Civ 645 §§11, 64, and Ahsan [2017] EWCA Civ 2009 at §31); R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §126 (Lord Reed: “although judicial review does not usually require the resolution of disputes of fact, or cross-examination, that is not because they lie beyond the scope of the procedure. Judicial review is a sufficiently flexible form of procedure to enable the court to deal with the situation before it as required”); R (G) v London Borough of Ealing [2002] EWHC 250 (Admin) at §20 (Munby J: “the court has the power, in an appropriate case, to direct oral evidence and cross-examination in judicial review proceedings”), §14 (“there will be some cases … where justice simply cannot be done unless there is cross-examination”); Trim v North Dorset District Council [2010] EWCA Civ 1446 [2011] 1 WLR 1901 at §24 (Carnwath LJ: “The court … may give any necessary directions for the attendance of witnesses and cross-examination”); {17.3} (judicial review and factual disputes}; R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 1025E-G (importance of 1977 procedural reforms as to disclosure, further information and cross-examination); O’Reilly v Mackman [1983] 2 AC 237, 280B (previous “procedural disadvantages” removed); {2.1.14} (the 1977 procedural reforms). 17.4.4 Oral evidence/cross-examination in judicial review: where necessary for fair determination.49 R (Jedwell) v Denbighshire County Council [2015] EWCA Civ 1232 [2016] PTSR 715 (appeal allowed where judge wrong to refuse permission to cross-examine planning officer) at §52 (Lewison LJ: “in an appropriate case, the court may require a witness to attend for cross-examination”), §54 (“cross-examination should be permitted ‘if cross-examination is necessary if the claim is to be determined, and is seen to be determined’ fairly and justly”),

48The equivalent paragraph in a previous edition was relied on in Cullen v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 39 [2003] 1 WLR 1763 at §5 (Lord Bingham and Lord Steyn); Julita F Raza v Chief Executive in Council [2006] HKCU 1199 at §22. 49The equivalent of this and subsequent paragraphs in a previous edition were relied on in Solayman v Minister for Justice and Equality [2019] IEHC 785 at §10 (Richard Humphreys J).

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§59 (“this was one of those admittedly rare cases in which cross-examination was necessary in order for justice both to be done and to be seen to be done”); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2115 (Admin) at §14 (Stanley Burnton J: “cross examination is exceptional in judicial review proceedings. This is largely because the primary facts are often not in dispute, or at least those asserted by the defendant public authority are undisputed. In addition, the defendant public authority may normally (but not invariably) be relied upon to disclose its relevant documents, thus fulfilling its duty of candour in relation to its documents. However, the Court retains a discretion to order or to permit cross examination, and it should do so if cross examination is necessary if the claim is to be determined, and is seen to be determined, fairly and justly”), §17 (cross-examination necessary here for the claim to be fairly and justly determined). R (Ghadami) v Harlow District Council [2004] EWHC 1883 (Admin) [2005] LGR 24 at §26 (cross-examination not “necessary for the just and proper disposal of the case”); Jones v Secretary of State for Wales [1995] 2 PLR 26, 30B (cross-examination “when the justice of the case requires”); R (G) v London Borough of Ealing [2002] EWHC 250 (Admin) at §14 (“cases … where justice simply cannot be done unless there is cross-examination”). 17.4.5 Subpoenas in judicial review. R v London Borough of Islington, ex p Erkul 26 March 1996 unreported (subpoena to attend for cross-examination); R v Secretary of State for Transport, ex p Port of Felixstowe Ltd [1997] COD 356 (subpoenas ordered at permission stage, where evidence likely to be vital, not available without subpoenas, nor from any other source). 17.4.6 Oral evidence/cross-examination and Article 6. R (G) v London Borough of Ealing [2002] EWHC 250 (Admin) at §20 (Munby J: “There will be judicial review cases … in which the court will simply not be able to meet its obligations under Article 6 of the Convention unless it is able to order cross-examination”); {2.1.12} (whether HRA:ECHR Art 6 applicable to judicial review proceedings). 17.4.7 Cross-examination: judge at substantive hearing retains control. Abraha v SSHD [2015] EWHC 1980 (Admin) [2015] ACD 140 (an immigration detention case) at §6 (Singh J: “At the hearing … it became clear that this is one of those unusual judicial review cases where it would be necessary to hear live evidence from some of the witnesses with the opportunity to cross-examine them. Accordingly, I directed that three witnesses who had filed evidence on behalf of the defendant should attend court”); Cocks v Thanet District Council [1983] 2 AC 286, 294H (describing “the court’s discretionary control of … cross-examination”); R v Radio Authority, ex p Wildman [1999] COD 255 (cross-examination essentially a matter on which the judge hearing the substantive application should have the final word); R (Ghadami) v Harlow District Council [2004] EWHC 1883 (Admin) [2005] LGR 24 at §26 (crossexamination deferred to the judge hearing the substantive hearing). 17.4.8 Cross-examination in judicial review: precedent fact/objective fact. R (Abbas) v SSHD [2017] EWHC 78 (Admin) [2017] 4 WLR 34 (court hearing oral evidence, to decide precedent fact as to whether revoked indefinite leave to remain had been obtained by deception) at §8 (William Davis J: “evidence was called before me and I am satisfied that I was properly able to address the issues in the case”); {49.2.3} (British citizenship raising an objective question of fact); R (Nmai) v SSHD [2020] EWHC 1139 (Admin) at §19 (witnesses giving oral evidence and being cross-examined); R (Nooh) v SSHD [2018] EWHC 1572 (Admin) at §33 (oral evidence and cross-examination by video link); R (Beckett) v SSHD [2008] EWHC 2002 (Admin) at §3 (Court hearing oral evidence on judicial review because “issues of precedent fact can require that course to be followed”); R (Lim) v SSHD [2006] EWHC 3004 (Admin) at §47 (cross-examination appropriate for precedent fact). 17.4.9 Cross-examination in judicial review: legitimate expectation. R (Corkteck Ltd) v HMRC [2009] EWHC 785 (Admin) [2009] STC 1681 at §26 (Sales J: “a substantive legitimate expectation claim depends … on the true underlying facts as found by the court”), §13 (claimant cross-examined), §23 (his account of critical conversation rejected, viewed against contemporaneous note). 238

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17.4.10 Cross-examination in judicial review: bad faith/improper motive. R v Derbyshire County Council, ex p Times Supplements Ltd (1991) 3 Admin LR 241 (decision held to be in bad faith and an abuse of power), 247G-248C (although it was “open to us … to reject the contents of [the defendant’s] affidavits in whole or in part (see Attorney General v News Group Newspapers Plc [1989] QB 110 at pages 127 and 128)”, counsel “sought and obtained [permission] to cross-examine … the councillors who appeared before us”), 252E (“I did not believe them. The longer they were cross-examined the more manifest it became that they were implausibly endeavouring to buttress the insupportable … their evidence … displayed an unworthy lack of candour”); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2115 (Admin) (cross-examination on leaked documents in an improper motive challenge). 17.4.11 Cross-examination in judicial review: human rights issues. R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §92 (applying Art 8 proportionality, where defendant had refused indefinite leave to remain based on claimant’s dishonesty, judicial review court/tribunal “will have to decide for itself whether the discrepancy was the result of dishonest conduct”), §104 (“That allegation has to be adjudicated … on its merits”), §105 (need to “give the claimant an opportunity to adduce evidence” and “normally … an opportunity to give oral evidence himself”); R (LXD) v Chief Constable of Merseyside Police [2019] EWHC 1685 (Admin) at §§30-32 (Dingemans J, explaining that in an Art 2 claim involving factual disputes, court would if necessary have given an interim judgment and made arrangements to hear witnesses orally); R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) [2010] HRLR 12 at §18 (HRA claim, where “these ‘hard-edged’ questions of fact represented an important exception to the rule precluding the court substituting its own view in judicial review cases”), §19 (“In our view it was necessary to allow cross-examination of makers of witness statements on those ‘hard-edged’ questions of fact. We envisage that such cross-examination might occur with increasing regularity in cases where there are crucial factual disputes between the parties relating to jurisdiction of the ECHR and the engagement of its articles”); R (JB) v Haddock [2006] EWCA Civ 961 [2006] HRLR 1237 at §64 (claimant entitled to cross-examination where issue of HRA-compatibility of forced medical treatment); R (Wilkinson) v Responsible Medical Officer Broadmoor Hospital [2001] EWCA Civ 1545 [2002] 1 WLR 419 (cross-examination in judicial review claim raising question whether mental health treatment compatible with HRA); S v Airedale NHS Trust [2002] EWHC 1780 (Admin) The Times 5 September 2002 at §13 (cross-examination granted, in human rights mental health context, but limited to expert witnesses) (HL is R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 [2006] 2 AC 148); C v Bury Metropolitan Borough Council [2002] EWHC 1438 (Fam) [2002] 2 FLR 868 at §57 (court hearing oral evidence in human rights challenge to revised care plan); R (Wilkinson) v Responsible Medical Officer Broadmoor Hospital [2001] EWCA Civ 1545 [2002] 1 WLR 419 (cross-examination in judicial review claim raising question whether mental health treatment); R (N) v Dr M [2002] EWCA Civ 1789 [2003] 1 WLR 562 (oral evidence and cross-examination allowed, in a case concerning the legality of forced medical treatment), §36 (more generally: “cross-examination should only be ordered if this is necessary to enable the court to determine the factual disputes for itself”), §39 (“it should not often be necessary to adduce oral evidence with crossexamination where there are disputed issues of fact and opinion in cases where the need for forcible medical treatment of a patient is being challenged on human rights grounds”); CF v SSHD [2004] EWHC 111 (Fam) [2004] 1 FCR 577 at §§217-218 (need for caution as to expert evidence and cross-examination in HRA challenges); R (B) v S [2006] EWCA Civ 28 [2006] 1 WLR 810 at §64 (no conflict between Wilkinson and N (Dr M)); R (H) v Secretary of State for Health [2005] UKHL 60 [2006] 1 AC 441 at §31 (judicial review court may be “obliged to conduct a sufficient review of the merits to satisfy itself that the requirements of article 5(1)(e) were indeed made out. But it is not well equipped to do so. … [I]t is not used to hearing oral evidence and cross examination. It will therefore take some persuading that this is necessary”); R (Mullen) v SSHD [2002] EWHC 230 (Admin) [2002] 1 WLR 1857 (DC referring to Wilkinson in context of judicial review extending to questions of fact where necessary to ensure Art 6 compliance, in the face of a decision-maker not being independent and impartial). 239

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17.4.12 Cross-examination in judicial review: procedural fairness/facts regarding process. Attorney-General of Trinidad and Tobago v Ayers-Caesar [2019] UKPC 2 at §10 (cross-examination appropriate in judicial review to determine dispute as to what was said at a meeting); R v London Borough of Camden, ex p Paddock [1995] COD 130 (crossexamination “made it possible to discern what had in all probability happened in relation to a critical aspect of the procedure”); R v Mid-Glamorgan County Council, ex p B [1995] ELR 168, 173G (cross-examination as to conduct of appeal committee); Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at §19 (not appropriate to cross-examine or seek disclosure from a judge, in order to decide whether bias); {17.3.15} (resolving disputed facts in judicial review: procedural events). 17.4.13 Oral evidence/cross-examination in judicial review: other illustrations. R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin) [2018] PTSR 142 at §19 (cross-examination of chief executive of council in judicial review of decision to continue with investigation and publish reports); R (K and AC Jackson & Son) v Department for the Environment Food and Rural Affairs [2011] EWHC 956 (Admin) at §6 (cross-examination allowed, to decide question of fact as to whether bovine testing samples were mixed on site); R v Waltham Forest LBC, ex p Baxter [1988] QB 419, 422D (councillors cross-examined on their affidavits), 426E, 427C; R (H) v Commissioners of Inland Revenue [2002] EWHC 2164 (Admin) [2002] STC 1354 at §44 (cross-examination permitted in relation to legality of Revenue seizure of computer hard disk); R (Binyan Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin) at §76 (crossexamination in claim for documents).

17.5 Disclosure/further information in judicial review.50 Given the parties’ important duty of candour, Courts will not normally order disclosure or further information in judicial review. However, such orders can and should be made where justice requires it, as where it is necessary for the fair disposal of the case. 17.5.1 Disclosure in judicial review: rules. CPR PD54A §12.1 (“Disclosure is not required unless the court orders otherwise”); CPR 31.12(1)(2) (“(1) The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search”); {17.3} (judicial review and factual disputes). 17.5.2 Further information in judicial review: rules. CPR 18.1 (“(1) The court may at any time order a party to – (a) clarify any matter which is in dispute in the proceedings; or (b) give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case. (2) Paragraph (1) is subject to any rule of law to the contrary. (3) Where the court makes an order under paragraph (1), the party against whom it is made must – (a) file his response; and (b) serve it on the other parties, within the time specified by the court. (Part 22 requires a response to be verified by a statement of truth)”). 17.5.3 Codified/common law rights to information. Freedom of Information Act 2000; Data Protection Act 1998; Data Protection Act 1998; Willow v Information Commissioner [2017] EWCA Civ 1876 (no entitlement to FOIA disclosure of unredacted training manual for physical restraint of young persons in custody); R (Stephenson) v Secretary of State for Justice [2010] EWHC 3134 (Admin) (prisoner entitled to copy of his prison dossier under the DPA 1998 s.7 for a fee); R (Binyan Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin) (claimant entitled to disclosure under

50The

equivalent paragraph in a previous edition was relied on in Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 [2003] 1 WLR 1763 at §5; Julita F Raza v Chief Executive in Council [2006] HKCU 1199 at §22.

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Norwich Pharmacal [1974] AC 133 principle, based on facilitation of wrongdoing); {7.1.18} (common law duties: Norwich Pharmacal duty)). 17.5.4 Duties of candour. {10.4} (defendant/interested party’s duty of candour); {19.1.8} (pre-action request for information); {10.3} (claimant’s duty of candour). 17.5.5 Disclosure generally unnecessary given duty of candour. R v SSHD, ex p Fayed [1998] 1 WLR 763, 775C (Lord Woolf MR: “On an application for judicial review there is usually no [disclosure] … because it is the obligation of the [defendant] public body in its evidence to make frank disclosure to the court of the decision-making process”), applied in R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) [2010] HRLR 12 at §§22-23; R v Arts Council of England, ex p Women’s Playhouse Trust [1998] COD 175 (transcript) (Laws J, explaining that disclosure and cross-examination not automatic, but that “it is generally the duty of a public body made [defendant] in judicial review proceedings to make full and fair disclosure as necessary to assist the court”); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at §50 (Laws LJ: “there is no duty of general disclosure in judicial review proceedings. However there is – of course – 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. The real question here is whether in the evidence put forward on his behalf the Secretary of State has given a true and comprehensive account of the way the relevant decisions in the case were arrived at”). 17.5.6 Producing primary documents/best evidence. R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §24 (“where a public authority relies on a document as ‘significant’ to its decision, it is ordinarily good practice to exhibit that document”); 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 (National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154 at §47 (CA explaining that where Government declining to produce ministerial briefing, wrong to seek to give a secondary account instead), §49 (best evidence rule applying); cf Wilson v Commissioner of Police of the Metropolis (IPT/11/167/H 16 May 2019) at §§18-20 (IPT identifying categories of documents appropriate for provision rather than being summarised and quoted from in witness statement: see §2); {17.1.8} (procedural rigour: the need to exhibit primary/best evidence). 17.5.7 Documents referred to in grounds/statements. R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) at §22 (“CPR 31.14 … does not apply in cases of judicial review”); CPR 31.14 (party’s entitlement in normal civil claims to inspect document mentioned in statement of case or witness statement); Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 (not automatic that disclosure of documents referred to appropriate), §33 (documents referred to in witness statements should be exhibited absent a good reason); R v Inland Revenue Commissioners, ex p Taylor [1989] 1 All ER 906 (not sufficient that reports referred to in defendant’s witness statement (affidavit); not necessary for fair disposal). 17.5.8 Disclosure in judicial review is important. R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 (unlawful approach becoming clear from documents disclosed following court order), §27 (important letter disclosed following order); {17.3} (judicial review and factual disputes}; R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 1025E-G (importance of 1977 procedural reforms as to disclosure, further information and cross-examination); O’Reilly v Mackman [1983] 2 AC 237, 280B (previous “procedural disadvantages” removed); R v Secretary of 241

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State for Education, ex p S [1994] ELR 252 (Sedley J), 262E-G (having not seen critical document: “More than once in the course of the argument I have felt like Lord Bowen’s blind man looking for a black hat in a dark room”; cf CA at [1995] ELR 71); {10.1.8} (cooperation: defendant facilitating judicial review). 17.5.9 Disclosure in judicial review: a flexible, case-specific approach. Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §32 (Lord Carswell, recognising “a more flexible and less prescriptive principle, which judges the need for disclosure in accordance with the requirements of the particular case, taking into account the facts and circumstances”), §56 (Lord Brown); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 638F (referring to “a wide discretion as to what … orders [are] appropriate to the particular case”); Cocks v Thanet District Council [1983] 2 AC 286, 294H (“the court’s discretionary control of both [disclosure] and cross-examination”). 17.5.10 Disclosure in judicial review: necessary for fair and just determination. Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §3 (Lord Bingham: “The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly”), §52 (Lord Brown); R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) at §33 (Flaux LJ and Saini J, asking whether “the disclosure sought is necessary for the fair and just determination of the issues”); R (John-Baptiste) v DPP [2019] EWHC 1130 (Admin) at §7 (whether “further disclosure was necessary to resolve the matter fairly and justly”); R (Charlton) v Secretary of State for Education and Skills [2005] EWHC 1378 (Admin) [2005] 2 FCR 603 at §80 (further disclosure necessary for fair disposal of the issues); R (Da Silva) v DPP [2006] EWHC 3204 (Admin) at §62 (disclosure not necessary for determination of lawfulness of decision); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 396C-397H (whether disclosure necessary either for disposing fairly of the matter or for saving costs); R v Secretary of State for Health, ex p London Borough of Hackney 29 July 1994 unreported (whether “factual issue of sufficient substance to lead the court to conclude that it may, or will, be unable to resolve the issue fairly, fairly that is to all parties, without [disclosure] of documents bearing on the issue one way or the other”); R (Husain) v Asylum Support Adjudicator [2001] EWHC Admin 852 at §16 (disclosure not “necessary for the determination of the issues”); R v Arts Council of England, ex p Women’s Playhouse Trust [1998] COD 175 (transcript) (disclosure “ordered only to the extent that the justice of the individual case requires”); O’Reilly v Mackman [1983] 2 AC 237, 282C (Lord Diplock: disclosure “whenever, and to the extent that, the justice of the case requires”), 283A (“whenever the justice of the particular case so requires”); R v Secretary of State for Education & Science, ex p G The Times 7 July 1989 (defendant having conceded that decision should be quashed and remitted, Court having no jurisdiction to order disclosure of documents for use as to redetermination). 17.5.11 Disclosure: relevance. Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §58 (asking whether disclosure could realistically affect the outcome); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 654E-F (Lord Scarman: “Upon general principles, [disclosure] should … be limited strictly to documents relevant to the issue”); R v Inland Revenue Commissioners, ex p Rothschild Holdings [1986] STC 410 (court needing to make factual finding as to departmental practice); Re Quark Fishing Ltd [2001] EWHC Admin 920 at §19 (document “not relevant to any real issue in the proceedings”), §27 (disclosure ordered of letter referred to in decision document and potentially relevant); R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 71 (Admin) (disclosure of relevant letters ordered). 17.5.12 Disclosure: no fishing expeditions. R (John-Baptiste) v DPP [2019] EWHC 1130 (Admin) at §7 (“attempt to obtain disclosure … to ‘unpick’ the decision” was “a fishing expedition”); Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §56 (Lord Brown: “the courts should continue to guard against what appear to 242

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be merely ‘fishing expeditions’ for adventitious further grounds of challenge”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 635H (no disclosure “in the hope of eliciting some impropriety”), 664C-D (“no reason to allow … a fishing expedition in the hope of obtaining on [disclosure] something which might counter that which appears clearly from the affidavits filed on behalf of the appellants”); R v Secretary of State for Health, ex p London Borough of Hackney [1994] COD 432 & 29 July 1994 unreported (impermissible to order disclosure “to see whether something might turn up”); cf R (Ministry of Defence) v Wiltshire & Swindon Coroner [2005] EWHC 889 (Admin) [2006] 1 WLR 134 at §§13-14 (although point not yet pleaded, appropriate to order disclosure of inquest tapes for Counsel to consider whether to pursue the point having heard them). 17.5.13 Disclosure: the test is not ‘inaccuracy, inconsistency or incompleteness’. Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §4 (where documents referred to and not exhibited, not necessary “to suggest some inaccuracy or incompleteness”), §56 (agreeing “that the time has come to do away with the rule that there must be a demonstrable contradiction or inconsistency or incompleteness in the [defendant’s witness statements] before disclosure will be ordered”). 17.5.14 Judicial review Court resolving a disputed fact. {17.3} (judicial review and factual disputes). 17.5.15 Disclosure in judicial review by reference to HRA:ECHR Article 6. R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin) (DC deciding whether Art 6 applicable to judicial review proceedings, to determine whether disclosure required by Art 6 in a national security context); R (K) v Secretary of State for Defence [2016] EWCA Civ 1149 [2017] 1 WLR 1671 (Art 6 standards of disclosure applicable in judicial review claim); {2.1.12} (whether HRA:ECHR Art 6 applicable to judicial review proceedings). 17.5.16 Specific disclosure ordered in judicial review: illustrations. R (Police Federation for England and Wales) v SSHD [2019] EWHC 1308 (Admin) at §21 (disclosure appropriate because “the materials … were not … clear … and the matter needed to be clarified”); R (Jet2.com Ltd) v Civil Aviation Authority [2019] EWHC 336 (Admin) §§19(2), 24 (fairness requiring disclosure of chain of emails) (upheld at [2020] EWCA Civ 35); R (ZS) v SSHD [2019] EWHC 75 (Admin) at §38 (disclosure ordered of documents relating to decisionmaking); R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin) [2014] ACD 26 at §§1, 68 (disclosure order made when granting permission), §74 (application to vary disclosure order dismissed); R (McVey) v Secretary of State for Health [2009] EWHC 3084 (Admin) (ordering disclosure of communications between Secretary of State and ex gratia fund trustees); R (Ministry of Defence) v Wiltshire & Swindon Coroner [2005] EWHC 889 (Admin) [2006] 1 WLR 134 at §16 (disclosure ordered in relation to tapes of inquest under challenge); Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 (disclosure to judge for evaluation of relevance and confidentiality). 17.5.17 Standard disclosure ordered in judicial review: illustrations. R (Daniel Johns Manchester Ltd) v Manchester City Council [2018] EWHC 464 (Admin) at §6 (casemanagement directions required standard disclosure by both parties of documents relevant to specified issues); R (Deutsch) v Hackney LBC [2003] EWHC 2692 at §3 (grant of permission for judicial review of controlled parking designation order accompanied by order for standard disclosure within 14 days). 17.5.18 Further information in judicial review: illustrations. R (OA) v London Borough of Bexley [2020] EWHC 1107 (Admin) at §78 (claimant having made CPR 18 Request for Information, including as to defendant’s witness statement, to which defendant had responded); Smart v DPP [2019] UKPC 35 at §34 (judicial review court can order ‘interrogatories’: further information); R v Bow County Court, ex p Pelling [1999] 1 WLR 1807, 1826E-F (further information not appropriate to seek to obtain judge’s reasons for impugned decision, court able to give remedy if breach of any duty to give reasons); R v Legal Aid Board, ex p London 243

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Docklands Development Corporation [1994] COD 247 (further information refused because of legal professional privilege). 17.5.19 Disclosure and HRA/proportionality. {17.3.16} (resolving disputed facts in judicial review: human rights issues); Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §38 (proportionality forming part of context for deciding whether disclosure necessary for fair disposal of the issues), §54 (proportionality meaning “a closer factual analysis of the justification … is required than used to be undertaken on judicial review challenges”). 17.5.20 Pre-permission application for disclosure/pre-action disclosure. British Union for the Abolition of Vivisection v SSHD [2014] EWHC 43 (Admin) [2014] ACD 69 at §32 (Court having jurisdiction to grant pre-action disclosure in judicial review cases, but likely to be rare); R (Sky Blue Sports & Leisure Ltd) v Coventry City Council [2013] EWHC 3366 (Admin) [2014] ACD 48 (application for specific disclosure, made prior to oral renewed permission hearing), §24 (Silber J, asking whether “disclosure is necessary in order to obtain permission to pursue a judicial review application”), §30 (not shown to be necessary), §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 (“Insofar as the Claimants have not obtained on the present application further material which I will assume will be relevant to showing that they should succeed on the permission application, the judge deciding the renewed application will, as I have explained, take that into account when determining whether to grant permission”); R (Hopper Entertainment Ltd) v Office of Communications [2011] EWHC 3693 (Admin) (pre-permission application for disclosure a fishing expedition with no solid evidential basis).

17.6 Expert evidence in judicial review.51 Expert evidence complying with CPR Part 35 can be adduced in judicial review proceedings, but only where it is reasonably required to resolve the proceedings. A party seeking to adduce such evidence is expected to act with procedural rigour. 17.6.1 Expert evidence: the rules. CPR 35 and CPR 35PD; Administrative Court: Judicial Review Guide (2020 edition) at §20.2.5 (expert’s overriding duty to the Court). 17.6.2 Expert evidence in judicial review: whether reasonably required. CPR 35.1 (expert evidence restricted to “that which is reasonably required to resolve the proceedings”); Administrative Court: Judicial Review Guide (2020 edition) at §20.2.2, 20.2.4 (“The Court will consider whether expert evidence is required in order reasonably to determine the claim and, if so, the most appropriate and cost-effective means of adducing it for the fair resolution of the claim”); R (Banks Renewables Ltd) v Secretary of State for Business, Energy & Industrial Strategy [2020] EWHC 436 (Admin) at §75 (Lewis J, asking whether “on a careful analysis of the decision under challenge and the issues raised in the case, the material … is … reasonably required to resolve the issues … fairly and properly”; permission refused here, “the claimant will fairly and properly be able to advance its claims … the court will be able [to] perform its functions in domestic and [EU] law and determine the issues of law fairly and properly”); R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) at §49 (expert reports “irrelevant and inadmissible”); R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182 [2018] QB 149 (claim based on EU law and proportionality) at §252 (“It is wrong to apply to judicial review, even the rarefied and intensive form of judicial review with which we are here concerned, the kind of procedure that would be appropriate for the resolution of expert disputes in the context of commercial litigation. … If … expert evidence is filed in the judicial review proceedings, such evidence must comply with CPR Pt 35 and there may well be scope for identifying and narrowing any disagreements between experts and for assisting the court to digest the

51The

equivalent paragraph in a previous edition was relied on in Re Bryson Recycling Ltd [2014] NIQB 9 at §112 (Treacy J); ZN v Secretary for Transport and Housing [2015] HKCFI 2252 at §10 (Hon Zervos J).

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evidence and to understand how it bites on the assessment to be made. But … the court will not normally need to be drawn into the resolution of technical disputes between experts and that the detailed procedural steps, including cross-examination, that might be required for the resolution of such disputes will not normally be needed”). 17.6.3 Expert evidence in judicial review: not generally needed. R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §36 (Leggatt LJ and Carr J: “It follows from the very nature of a claim for judicial review that expert evidence is seldom reasonably required in order to resolve it. That is because it is not the function of the court in deciding the claim to assess the merits of the decision”); Administrative Court: Judicial Review Guide (2020 edition) at §20.2.1 (“The nature of a judicial review claim means that expert evidence is rarely reasonably required in order to resolve a claim for judicial review. The Court is not determining the merits of the decision under review but is concerned with the lawfulness of the exercise of the power in question. It will seldom be necessary to consider evidence which goes beyond the material before the decision-maker at the time the decision was taken”). 17.6.4 Procedural rigour: seeking to rely on expert evidence in judicial review. CPR 35.4 (need for court permission); Administrative Court: Judicial Review Guide (2020 edition) at §20.2.3 (need for court’s permission), §20.2.4 (“Applications for permission to rely on expert evidence, and for consequential directions, should be made at the earliest opportunity”); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §44 (Leggatt LJ and Carr J: “If a party to judicial review proceedings wishes to rely on expert evidence in support or defence of the claim, it is essential that an application for permission to do so and for appropriate consequential directions should be made at the earliest possible opportunity”; “In the ordinary course, any … application [for permission to rely on expert evidence] by the claimant should be made when its grounds for bringing the claim are filed so that it can be considered by the judge who makes the decision whether to give permission to proceed with the claim”); cf CF v SSHD [2004] EWHC 111 (Fam) [2004] 1 FCR 577 at §218 (need for restraint and case-management, including clear identification of “what precise point the evidence being adduced really goes to”); R (Watkins-Singh) v Aberdare Girls High School Governors [2008] EWHC 1865 (Admin) [2008] 3 FCR 203 (rejecting defendant’s ‘expert’ evidence for non-compliance with CPR); R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182 [2018] QB 149 at §252 (“Where expert reports form part of the material taken into account by the primary decision-maker in making the impugned decision … those reports can be placed before the court (subject of course to considerations of relevance) without their having to comply with CPR Pt 35. The court can take them into account in the same way as it takes into account any other material before the decision-maker”). 17.6.5 Expert evidence in judicial review: to ensure proper judicial understanding. R (Lynch) v General Dental Council [2003] EWHC 2987 (Admin) [2004] 1 All ER 1159 at §24 (Collins J: “the Court must be enabled to carry out its function. To do this it must understand the material which is put before it”; “in a truly technical field, where the significance of a particular process is in issue expert evidence can be admitted to explain the process and its significance”), §25 (“its purpose is in reality to explain to the court matters which it needs to understand in order to reach a just conclusion”). 17.6.6 Expert evidence in judicial review: explaining a technical error. R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §39 (expert evidence permissible to aid court’s understanding “where … it is alleged that the decision under challenge was reached by a process of reasoning which involved a serious technical error”), §41 (provided that the expert evidence makes the technical error “incontrovertible”). 17.6.7 Expert evidence in judicial review: issues of HRA-compatibility. R (Soltany) v SSHD [2020] EWHC 2291 (Admin) at §349 (expert evidence on religious observance, in considering Art 9 challenge to immigration detention conditions); R (Granger-Taylor) v High Speed Two (HS2) Ltd [2020] EWHC 1142 (Admin) [2020] ACD 80 at §37 (HRA-compatibility 245

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of tunnels proposed for HS2, by reference to expert evidence); Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 at §83 (expert evidence in human rights compatibility challenge to legislation); R (T) v Ministry of Justice [2018] EWHC 2615 (Admin) [2018] ACD 134 (expert evidence on human rights challenge to suicide legislation, but cross-examination of expert not necessary); R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182 [2018] QB 149 at §246 (relevance of expert evidence), §252 (wrong to approach as if resolving expert dispute in commercial litigation); R (Seahawk Marine Foods Ltd) v Southampton Port Health Authority [2002] EWCA Civ 54 at §§19, 34 (expert evidence relevant to question of proportionality); CF v SSHD [2004] EWHC 111 (Fam) [2004] 1 FCR 577 at §217 (expert evidence admissible in HRA proportionality cases)); R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) at §84 (expert evidence could be relied on in relation to question of justification under HRA:ECHR Art 14). 17.6.8 Expert evidence in judicial review permitted: other illustrations. R (Hassan) v SSHD [2019] EWHC 1288 (Admin) at §21 (court’s assessment of foreign law needing to be based on evaluation of expert evidence, referring to Mucelli [2012] EWHC 95 (Admin) at §50); cf KV (Sri Lanka) v SSHD [2018] EWCA Civ 2483 at §§31-35 (expert evidence not invariably necessary in order to prove content of foreign law); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §42 (in the present case, expert evidence in principle was also admissible on the issues “whether the consultation procedure was unfair, in particular because information of substantial importance to the decision was not disclosed”, in showing “the potential impact of the proposal put out for consultation”; and “to illustrate the points which might have been made and … show their materiality”; also as to whether “unlawful interference with the right to access to justice”); R v Haringey LBC, ex p Norton (1998) 1 CCLR 168, 180E-G (Roger Henderson QC: “the Court may in certain rare circumstances be assisted by knowing ex post facto how an expert in the field would have assessed the needs of a particular [claimant]” giving the example of “a case where deficient enquiry led to ignorance of material facts or opinion and the evidence being proffered goes to the issue of what would have been discovered had due enquiry been made”); 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). 17.6.9 Whether cross-examination of expert appropriate. R (T) v Ministry of Justice [2018] EWHC 2615 (Admin) [2018] ACD 134 at §18 (cross-examination of expert not necessary); S v Airedale NHS Trust [2002] EWHC 1780 (Admin) The Times 5 September 2002 at §13 (cross-examination of expert witnesses granted, in human rights mental health context) (HL is R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 [2006] 2 AC 148); {17.4} (oral evidence/cross-examination in judicial review).

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P18 Costs. Established principles guide the Court’s discretion in relation to costs in judicial review: including that, generally, the loser must pay the winner’s costs. 18.1 Costs: general matters 18.2 Costs and third parties 18.3 Costs and the permission stage 18.4 Public interest costs, capping and the environment 18.5 Costs and discontinuance/settlement

18.1 Costs: general matters. Deciding who pays a judicial review party’s legal costs of the proceedings is a practical question of self-evident importance. It can also have a significant knock-on effect for future cases. Costs orders in judicial review proceedings are in the Court’s ‘discretion’, exercised judicially having regard to (a) applicable principles found in rules and case law and (b) the particular facts and circumstances. 18.1.1 Costs: key rules. Senior Courts Act 1981 s.51(1)-(3) (“(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in – (a) the civil division of the Court of Appeal; (b) the High Court; … shall be in the discretion of the court. (2) Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings including, in particular, prescribing scales of costs to be paid to legal or other representatives. or for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs. (3) The court shall have full power to determine by whom and to what extent the costs are to be paid”); CPR 44.3 (Court’s discretion and circumstances to be taken into account when exercising it); CPR 44.4 (basis of assessment); CPR 44.8 (time for complying with costs orders); CPR Costs Practice Direction (CPR 44); Administrative Court: Judicial Review Guide (2020 edition) at §23.10 (costs order against a party in receipt of legal aid). 18.1.2 Scope of costs of the judicial review proceedings. Senior Courts Act 1981 s.51(1) (referring to “the costs of and incidental to … proceedings”); R (Hunt) v DPP [2020] EWHC 1292 (Admin) [2020] 4 WLR 81 at §§64-65 (costs of the judicial review proceedings extending, in the exceptional circumstances, to the claimant’s costs of intervening in the linked criminal appeal in the CACD, to argue the same point as arose in the judicial review); R (Drain) v Birmingham Crown Court [2018] EWHC 1605 (Admin) at §5 (defendant’s costs of storage of items the subject of forfeiture order, unsuccessfully challenged by judicial review, as costs “incidental to” the judicial review proceedings); R (Kay) v Leeds Magistrates’ Court [2018] EWHC 2842 (Admin) [2018] 6 Costs LR 1317 at §§13-14 (judicial review court having jurisdiction to make orders for costs of the judicial review proceedings and the underlying magistrates’ proceedings to which they related); cf Darroch v Football Association Premier League [2016] EWCA Civ 1220 [2017] 4 WLR 6 (not extending to costs of the underlying criminal proceedings). 18.1.3 Costs: a principled, fact-sensitive approach. R (Faqiri) v Upper Tribunal [2019] EWCA Civ 151 [2019] 1 WLR 4497 at §17 (“despite the breadth of [the] discretion, an award of costs can only be made on a ‘principled basis’”); R (M) v Croydon LBC [2012] EWCA Civ 595 [2012] 1 WLR 2607 at §1 (questions of costs “highly fact-sensitive and very much a matter for the discretion of the first instance tribunal”), §65 (“each case turns on its own facts”). 18.1.4 The general rule: loser pays the costs. Administrative Court: Judicial Review Guide (2020 edition) at §23.1.2; CPR 44.2(2)(a) (“The general rule is that the unsuccessful party will

THE NATURE OF JUDICIAL REVIEW

be ordered to pay the costs of the successful party”); R (Patel) v SSHD [2020] EWCA Civ 74 at §19 (“Essentially, in public law claims as much as any other, whilst costs are primarily a matter for the discretion of the court, the general rule is that a successful party can look to an unsuccessful party for his costs”); R (Faqiri) v Upper Tribunal [2019] EWCA Civ 151 [2019] 1 WLR 4497 at §17 (general rule applies to judicial review, citing ZN [2018] 3 Costs LR 357 at §67 as to the rationale); R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166 [2008] 1 WLR 878 at §29 (“costs should ordinarily follow the event and … it is for the claimant who has lost to show that some different approach should be adopted on the facts of a particular case”); {18.1.22}-{18.1.23} (costs and discretionary refusal of remedy). 18.1.5 Costs and part-success. Administrative Court: Judicial Review Guide (2020 edition) at §23.1.6; CPR 44.2(6)-(7) (“(6) The orders which the court may make under this rule include an order that a party must pay – (a) a proportion of another party’s costs; (b) a stated amount in respect of another party’s costs; (c) costs from or until a certain date only; (d) costs incurred before proceedings have begun; (e) costs relating to particular steps taken in the proceedings; (f) costs relating only to a distinct part of the proceedings; and (g) interest on costs from or until a certain date, including a date before judgment. (7) Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead”); CPR 44.2(4)-(5) (“(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; … (5) The conduct of the parties includes – … (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim”). 18.1.6 Costs and part-success: illustrations.52 R (Johnson) v Secretary of State for Work and Pensions [2019] EWHC 3631 (Admin) at §26 (Singh LJ and Lewis J: “if the successful claimant has lost out on a number of issues it may be inappropriate to make separate orders for costs in respect of issues upon which he has failed, unless the points were unreasonably taken”), §27 (no reduction despite failed ground, because “this was not unreasonably pursued” and “much if not all of the evidence relating to this ground would … have had to be placed before the court in any event”); R (Steer) v Shepway District Council [2018] EWHC 238 (Admin) [2018] ACD 39 at §65 (claimant recovering costs at 65% of costs limit where succeeded on one of three grounds); R (Marshall) v East Dorset District Council [2018] EWHC 226 (Admin) [2018] PTSR 1508 at §68 (claimant recovering 75% of costs where succeeded on primary ground, but failed to two further grounds); R (Sanneh) v SSHD [2019] EWCA Civ 1319 (where detention in part unlawful, but claim mostly unsuccessful, appropriate order was each side pay their own costs); R (Kay) v Leeds Magistrates’ Court [2018] EWHC 2842 (Admin) [2018] 6 Costs LR 1317 at §§16-17 (full costs where claimant “clearly the successful party”, looking “justly and overall”); R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929, 945 (defendant ordered to pay 60% of claimant’s costs at first instance and 40% on appeal); R (Lewin) v Financial Reporting Council Ltd [2018] EWHC 554 (Admin) at §11 (claimant ordered to pay two-thirds of first and second defendants’ costs, but no ‘double deduction’ appropriate ordering defendants to pay costs of an issue); R (Viridor Waste Management) v HMRC [2016] EWHC 2502 (Admin) [2016] 4 WLR 165 (defendant entitled to costs order, reduced by 15% from date when it first raised a distinct issue involving a wider enquiry, on which it had lost); 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 (issue-based costs order); R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ

52The

§37.

equivalent paragraph in a previous edition was relied on in Intercontinental Exchange Inc v CMA [2017] CAT 8 at

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1036 [2004] QB 395 at §89 (declining to deprive claimant of costs on unsuccessful issues: “fundamental human rights and the liberty of the subject are involved. … There is a public interest in these issues beyond those of the individual parties. It would be wrong to discourage any party from raising any proper and reasonable argument even if it ultimately failed”) (HL is [2005] UKHL 58 [2006] 2 AC 148). 18.1.7 Costs and conduct. Administrative Court: Judicial Review Guide (2020 edition) at §§23.1.3-23.1.4; CPR 44.2(4)-(5) (“(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – (a) the conduct of all the parties … (5) The conduct of the parties includes – … (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim”); R (Taylor) v Honiton Town Council [2017] EWHC 101 (Admin) [2017] 1 Costs LR 31 at §11 (“the interests of justice require a departure from the general rule on conduct grounds”), §§19-20 (defendant agreed to decision being quashed and to pay the costs), §21 (claimant sought to achieve more and was unsuccessful), §28 (defendant to pay the claimant’s costs up to the date of defendant’s draft order, claimant to pay defendant’s costs thereafter). 18.1.8 Procedural rigour: costs as a sanction for non-compliance. Administrative Court: Judicial Review Guide (2020 edition) at §21.2.1 (“The Court may sanction non-compliance by ordering the party in default to pay the other side’s costs, or by disallowing the costs by the party in default even if that party is successful in the claim”), §23.1.5 (“Where a party has failed to comply with orders of the Court or other procedural rules (such as those outlined in this Guide) the Court may reduce the amount of costs to which the successful party would normally be entitled. Further, in such a scenario, a liable party may be required to pay more than would normally be considered to be reasonable had the breach of the provision not occurred”). 18.1.9 Procedural rigour: costs implications of non-compliance with PAP. CPR 44.2(4)-(5) (“(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – (a) the conduct of all the parties … (5) The conduct of the parties includes – (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol”); Judicial Review Pre-Action Protocol §7 (“Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it in good time before proceedings are issued and will take into account compliance or noncompliance when … making orders for costs”), §13 (“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”); Singh v Public Service Commission [2019] UKPC 18 (claimant’s costs of withdrawn claim appropriate where matter resolved but defendant had failed to respond to pre-action letter, even by asking for short extension to reply); R (Archer) v HMRC [2019] EWCA Civ 1021 [2019] 1 WLR 6355 at §103 (relevant to refusal of costs, after defendant conceded, that “no serious attempt was made … to comply with the pre-action protocol for judicial review”); R (Aegis Group Plc) v Inland Revenue Commissioners [2005] EWHC 1468 (Ch) (defendant deprived of 15% of costs to reflect unexplained and unacceptably late response to letter before claim); R (Riniker) v Employment Tribunals & Regional Chairmen [2009] EWCA Civ 1450 at §29 (where permission for judicial review refused, costs of AOS inappropriate where served late and not preceded by compliance with the pre-action protocol). 18.1.10 Procedural rigour: impact of default on costs order. R (Medical Justice) v SSHD [2019] EWHC 1710 (Admin) at §§19, 21 (costs in favour of claimant because of extreme lateness of Secretary of State’s application to vary order for interim relief); R (Montpeliers & Trevors Association) v City of Westminster [2005] EWHC 16 (Admin) [2006] LGR 304 at §59 (court would have deprived defendant of some of its costs, had it succeeded, given its inactivity in defiance of the rules). 249

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18.1.11 Procedural flexibility: costs. R (Johnson) v Secretary of State for Work and Pensions [2019] EWHC 3631 (Admin) at §21 (Singh LJ and Lewis J: “The fact that the claimants have succeeded on a basis in law which is not identical to many of the grounds which they have pleaded does not lead us in the circumstances of this case to think it appropriate to make any reduction in the costs which they should attain”), §22 (“justice requires the claimants should receive at least the vast bulk of their costs because in substance they had to come to court to vindicate their rights and they have succeeded”). 18.1.12 Costs and failure to lodge AOS. CPR 54.9(2) (“Where that person takes part in the hearing of the judicial review, the court may take his failure to file an acknowledgment of service into account when deciding what order to make about costs”). 18.1.13 Costs and failure to explore alternative dispute resolution (ADR). {10.2} (ADR/ mediation); R (Nurse Prescribers Ltd) v Secretary of State for Health [2004] EWHC 403 (Admin) at §116 (no order for costs, despite failed challenge, because claimant had established a disappointed legitimate expectation and the Secretary of State had declined an ADR offer); Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 [2004] 1 WLR 3002 at §13 (“In deciding whether to deprive a successful party of some or all of his costs on the grounds that he has refused to agree to ADR … [t]he fundamental principle is that such departure is not justified unless it is shown (the burden being on the unsuccessful party) that the successful party acted unreasonably in refusing to agree to ADR”); Dunnett v Railtrack plc [2002] EWCA Civ 303 [2002] 1 WLR 2434 (Railtrack winning but no order for costs because Railtrack having refused to explore ADR); R (Johnson) v Reading Borough Council [2004] EWHC 765 (Admin) (defendant council awarded its costs of failed judicial review, notwithstanding that claimants requested ADR in letter before claim); R (A) v East Sussex County Council [2005] EWHC 585 (Admin) (2005) 8 CCLR 228 at §43 (fanciful to suggest mediation would have been successful), §44 (position might be different, had defendant been proposing mediation without preconditions). 18.1.14 Costs order against defendant court/tribunal: overview. Administrative Court: Judicial Review Guide (2020 edition) at §23.12.1 (“Where the defendant in judicial review proceedings is a Court, Tribunal or Coroner, the Administrative Court will generally not make costs orders against the defendant where the defendant has not acted obstructively or improperly and only makes representations neutrally on the procedure or law. In such cases, it will often be appropriate for the Court to make a costs order against the interested party … which took the underlying administrative decision that generated the proceedings before the Court or Tribunal whose decision is challenged. For example, in judicial review proceedings against the Upper Tribunal in immigration cases, the Court may make a costs order against the [SSHD] who will generally be named as an interested party”), §23.12.2 (“Where a Court, Tribunal or Coroner does contest the claim, it becomes liable for costs, subject to the principles discussed in this section of the Guide”). 18.1.15 Costs order against defendant court/tribunal: the Davies principles. R (Faqiri) v Upper Tribunal [2019] EWCA Civ 151 [2019] 1 WLR 4497 at §§22-24, endorsing the “governing principles” set out in R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207 [2004] 1 WLR 2739 at §47 (Brooke LJ: “(1) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings; (2) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event; (3) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application; (4) There are, however, a number of important considerations which might tend to make the courts exercise their discretion in 250

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a different way today in cases in category (3) above, so that a successful [claimant] …, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs”); D, P & K v Lord Chancellor [2020] EWHC 736 (Admin) at §§30-31 (costs ordered against Lord Chancellor, who “stepped into the ring and ceased to act neutrally”, in defending challenge to FTT President’s Protocol); R (Gourlay) v Parole Board [2017] EWCA Civ 1003 [2017] 1 WLR 4107 at §66 (Davies principles applicable to parole board); R (Lockerby) v Medway County Court [2018] EWHC 2496 (Admin) [2018] ACD 121 at §16 (costs ordered against county court given its flagrant failure to comply with good practice and court orders). 18.1.16 Costs and courts/tribunals: Cart claim/UT. R (Faqiri) v Upper Tribunal [2019] EWCA Civ 151 [2019] 1 WLR 4497 at §33 (Davies principles applicable to Cart claims against the UT); JH (Palestinian Territories) v Upper Tribunal [2020] EWCA Civ 919 at §42 (on successful Cart claim, costs not automatically following), §45 (High Court not having jurisdiction to direct that costs of the judicial review be treated as ‘costs in the appeal before the UT’), §32 (however: “this jurisdictional issue can be addressed by the transfer of the JR proceedings to the UT in relation to the application for costs. … Jurisdictionally, this is a fail-safe course and will import the CPR 44 costs regime in respect of the JR proceedings. The UT judge may then consider the costs of the CPR54.7A proceedings separately from those in relation to the substantive appeal”). 18.1.17 Costs and courts/tribunals: coroners. R (Adath Yisroel Burial Society) v HM Senior Coroner for Inner North London [2018] EWHC 1286 (Admin) [2018] 4 Costs LR 749 at §§33-34 (costs against coroner who failed to reconsider impugned policy and ceased to be neutral by actively participating in defending it, applying Davies principles); R v Inner London North Coroner, ex p Touche [2001] EWCA Civ 383 [2001] QB 1206 (costs appropriate where coroner appeared and lost); In re Clegg [1997] COD 166 (costs against non-appearing coroner). 18.1.18 Costs and courts/tribunals: magistrates. R (Varma) v Redbridge Magistrates’ Court [2009] EWHC 836 (Admin) at §§88, 90 (magistrates and CPS ordered to pay half each of claimants’ costs, the magistrates having unreasonably declined to sign a consent order); R v Metropolitan Stipendiary Magistrate, ex p Ali The Independent 12 May 1997 (continued refusal to state a case, as here, notwithstanding judge’s comments in granting permission); R v Huntingdon Magistrates’ Court, ex p Percy [1994] COD 323 (magistrates’ unreasonable continued refusal to state a case, even after permission to move for judicial review of that decision granted by the Court); R v Aldershot Justices, ex p Rushmoor Borough Council [1996] COD 21 (costs against justices for refusing to state a case notwithstanding the grant of permission for judicial review) and the sequel R v Aldershot Justices, ex p Rushmoor Borough Council (No 2) [1996] COD 280 (Court declining to set aside the costs order); R v Lincoln Justices, ex p Count (1996) 8 Admin LR 233 (perverse decision in flagrant disregard of elementary principles); R v Stafford Justices, ex p Johnson [1995] COD 352 (serious failure to conduct proper inquiry); R v Reading Family Justices Panel, ex p DSS 28 November 1995 unreported and R v Stoke-on-Trent Justices, ex p Booth The Independent 9 February 1996 (unreasonable failure to sign consent orders); R v Newcastle Upon Tyne Justices, ex p Devine [1998] COD 420 (costs against magistrates who had made elementary error and not taken the opportunity to accept it); R v Doncaster Justices, ex p Jack The Times 26 May 1999 (rare case where costs order against non-appearing magistrates appropriate); R v Feltham Justices, ex p Haid [1998] COD 440 (costs against magistrates refused). 18.1.19 Costs against ombudsman. R (Towry Law Financial Services plc) v Financial Services Ombudsman Service Ltd [2002] EWHC 1603 (Admin) at §20 (need for “flagrant disregard of principle” to award costs against non-participating inferior tribunal such as the Financial Services Ombudsman); Moore’s (Wallisdown) Ltd v Pensions Ombudsman [2002] 1 WLR 1649 (costs ordered in full against pensions ombudsman, having appeared to defend decision on statutory appeal). 251

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18.1.20 Costs and regulatory authorities: comparison with non-CPR proceedings. Competition and Markets Authority v Flynn Pharma Ltd [2020] EWCA Civ 617 at §§79, 105 (in proceedings where “no express general rule or default position … the starting point or default position is that no order for costs should be made against a regulator who has brought or defended proceedings in the [Competition Appeal Tribunal] acting purely in its regulatory capacity”), §§94-95 (judicial review different as “litigation conducted under the CPR” including CPR 44.2); R (Perinpanathan) v Westminster Magistrates Court [2010] EWCA Civ 40 [2010] 1 WLR 1508 (in cases to which CPR not applying, no presumption in favour of costs against regulatory authority’s whose administrative decision successfully but which was made and maintained honestly, reasonably, properly and on grounds that reasonably appearing to be sound, in the exercise of its public duty). 18.1.21 Statutory costs shield. Eastenders Cash & Carry Plc v HMRC (No 2) [2012] EWCA Civ 689 [2012] 1 WLR 2912 at §28 (statutory bar on ordering costs against HMRC in judicial review successfully impugning detention of goods, because judicial review constituting “civil proceedings” and reasonable grounds existed) (SC is [2014] UKSC 34 [2015] AC 1101). 18.1.22 Discretionary refusal of remedy (unlawfulness shown): claimant’s costs (Hunt). R (Hunt) v North Somerset Council [2015] UKSC 51 [2015] 1 WLR 3375 at §18 (where remedy refused as a matter of discretion because detrimental to good administration to unravel budget, claimant awarded two-thirds of costs), §16 (Lord Toulson: “If a party who has been given [permission] to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown why he should not recover his reasonable costs”); applied in Raqeed v Barts Health NHS Trust [2019] EWHC 3320 (Admin) [2020] ACD 20 at §46 (“establishing the public law ground contended for is a more reliable indicator of success … than is the nature and extent of any discretionary relief subsequently granted for that default”). 18.1.23 Costs and discretionary refusal of remedy: older cases. R v Lambeth LBC, ex p Touhey (2000) 32 HLR 707, 728 (suggesting appropriate to order costs against defendant where continuing breach of housing duty but no remedy because council now making proper efforts); R v North West Thames Regional Health Authority, ex p Daniels (Rhys William) [1994] COD 44 (see transcript) (costs awarded to claimant where breach of statutory duty to consult community health council, but no remedy granted because would serve no useful purpose); In the matter of an inquest into the death of Catherine Lucy Clegg [1997] COD 166 (costs where grounds made out but not in the interests of justice to order a new inquest); R (Guiney) v Greenwich LBC [2008] EWHC 2012 (Admin) (claimant awarded 75% of costs where obtaining declaration only, and not partial quashing); R v Sheffield City Council, ex p H [1999] ELR 242 (Owen J), 248E (where quashing order (certiorari) refused because would serve no useful purpose, but declarations granted, claimants awarded one-third of costs); R v Trafford Borough Council, ex p Colonel Foods Ltd [1990] COD 351 (costs ordered against claimant where grounds for judicial review satisfied, but remedy refused as a matter of discretion given existence of alternative remedy by way of appeal); R v Swale Borough Council & Medway Ports Authority, ex p Royal Society for the Protection of Birds (1990) 2 Admin LR 790, 808H-816E (breach of legitimate expectation but remedy refused for delay, given third party reliance; no order for costs as between claimant and defendant, but claimant having to pay interested party’s costs); Berkeley v Secretary of State for the Environment (No 2) The Times 7 April 1998 (transcript) (where Secretary of State was in breach of his legal obligations, albeit “in the end it has not affected the outcome of the proceedings”: “It is appropriate for the court, which has its own interest in preserving the high standards of civil administration which we expect in this country, to mark its disapproval of that breach by depriving the Secretary of State of a proportion of his costs, although only in the court below”) (on appeal, the HL granted the remedy: [2001] 2 AC 603); R (L) v Independent Appeal Panel of St Edward’s College [2001] EWHC 108 (Admin) [2001] ELR 542 (no order for costs where remedy refused as a matter of discretion because not sensible to reconvene schools admissions panel during present school year).

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18.1.24 Costs: relevance that party is publicly funded. Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.30(1) (legal aid rights of a person “do not affect – (a) the rights or liabilities of other parties to the proceedings, or (b) the principles on which the discretion of the court or tribunal is normally exercised”); R (Faqiri) v Upper Tribunal [2019] EWCA Civ 151 [2019] 1 WLR 4497 at §38 (discussing relevance of legal aid); R (Parveen) v Redbridge LBC [2020] EWCA Civ 194 [2020] 4 WLR 53 (importance to solicitors undertaking publicly funded work of recovering inter partes costs not affecting principles applicable where outcome achieved rendering substantive hearing unnecessary); ZN (Afghanistan) v SSHD [2018] EWCA Civ 1059 [2018] 3 Costs LO 357 at §§87-88, 93, 106 (Singh LJ, treating risk of unsustainability to legal aid practices if inter partes costs not recoverable as a factor which can properly be taken into account in the discretion as to costs, because of importance of access to justice), §75 (nevertheless, need for a “principled basis” for costs order), cf §103 (Leggatt LJ, taking a narrower view of relevance of legal aid), §106 (Sir Brian Leveson P); R (RL) v Croydon LBC [2018] EWCA Civ 726 [2019] 1 WLR 224 at §78 (Underhill LJ, recognising “the importance to solicitors undertaking publicly funded work of recovering costs on an inter partes basis not only when they succeed in litigation but when the litigation is resolved on a basis that represents success. … But that does not justify an award of costs for which I cannot find a principled basis”); R (Gourlay) v Parole Board [2017] EWCA Civ 1003 [2017] 1 WLR 4107 at §61 (“in considering costs orders in public law claims, the court is bound to ignore the fact that the party seeking the costs order is publicly-funded”); In re appeals by Governing Body of JFS [2009] UKSC 1 [2009] 1 WLR 2353 at §§24-25 (“the consequences for solicitors who do publicly funded work are a factor which must be taken into account”); R (Bahta) v SSHD [2011] EWCA Civ 895 at §49 (position of legal aid firms relevant to costs principles where relief secured without a hearing), §61 (“a culture in which an order that there be no order for costs in a case involving a public body as a defendant, because a costs order would only transfer funds from one public body to another, is … no longer acceptable”). 18.1.25 Costs set-off. R (Burkett) v Hammersmith and Fulham LBC [2004] EWCA Civ 1342 (where CLS-funded claimant obtaining costs order in JR, appropriate to direct a set-off in respect of earlier costs order made against the same claimant); R (Supportways Community Services Ltd) v Hampshire County Council (No 2) [2006] EWCA Civ 1170 (2006) 9 CCLR 498 (inquiry for damages, conditional on first paying costs ordered); CPR 44.12 (costs set-off). 18.1.26 Criminal cases: costs out of central funds. Administrative Court: Judicial Review Guide (2020 edition) at §23.11 (orders that costs be paid from central funds); R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin) [2020] QB 478 at §100 (in “a claim for judicial review in a criminal cause or matter … the criminal costs scheme should apply unless there are exceptional reasons to take a different course”); R v Manchester Stipendiary Magistrate, ex p Hill [1983] 1 AC 328, 346E-G. 18.1.27 Claimant incorporating for the litigation/costs-protection. R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWCA Civ 649 at §8 (claimant “a company limited by guarantee incorporated for the purpose of bringing this challenge”); Spitalfields Open Space Ltd v Governing Body of Christ Church Primary School [2019] EACC 1 [2019] Fam 343 at §§45-48 (Arches Court discussing case law recognising standing of public interest groups, including those recently incorporated for costs protection, together with appropriate use of security for costs orders); R (We Love Hackney Ltd) v Hackney LBC [2019] EWHC 1007 (Admin) at §18 (incorporation for effective promotion of objectives and to advance the application for judicial review), §64 (security for costs ordered); R v Leicestershire County Council, ex p Blackfordby & Boothorpe Action Group Ltd [2001] Env LR 2 at §37 (advantages of incorporation including “the avoidance of substantial personal liability of members for the costs of unsuccessful legal proceedings”, but the “costs position can be dealt with adequately by requiring the provision of security for costs in a realistically large sum. … [That is] the right approach in principle”); R (Residents Against Waste Sites Ltd) v Lancs County Council [2007] EWHC 2558 (Admin) at §19 (position dealt with by security for costs); R v Ministry of Agriculture Fisheries and 253

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Food, ex p British Pig Industry Support Group [2000] EuLR 724 at §108 (security for costs appropriate solution where incorporated claimant; requiring co-claimant as a condition of permission an appropriate solution where unincorporated claimant); R (PPG11 Ltd) v Dorset County Council [2003] EWHC 1311 (Admin) [2004] Env LR 84 at §3 (claimant “a limited company formed as an action group from those opposed to the scheme”); R (Hereford Waste Watchers Ltd) v Hereford Council [2005] EWHC 191 (Admin) [2005] Env LR 586 at §2 (claimant company “formed specifically to challenge the development in this case”); {21.5.24} (order for security for costs); Village Residents Association Ltd v An Bord Pleanala 23 March 2000 (Irish High Court ordering security for costs against company incorporated to bring a planning judicial review claim). 18.1.28 Costs dealt with on the papers. R (Kay) v Leeds Magistrates’ Court [2018] EWHC 2842 (Admin) [2018] 6 Costs LR 1317 at §3 (costs dealt with by agreement on the papers); R (RS (Sri Lanka)) v SSHD [2011] EWCA Civ 114 (where parties agreed costs to be dealt with by the Court on the basis of written submissions, no entitlement under CPR 52.16(6) to request reconsideration at an oral hearing). 18.1.29 Costs and CJEU reference. Western Saharan Campaign UK v HMRC [2019] EWHC 684 (Admin) [2019] Costs LR 245 (claimant recovering costs in relation to reference to CJEU where successful, albeit defendant did not participate in the reference). 18.1.30 Detailed assessment or summary assessment. CPR 44.6 (procedure for assessing costs). Form N260 is the form for Statement of Costs (Summary Assessment). Administrative Court: Judicial Review Guide (2020 edition) at §23.3. 18.1.31 Depriving successful party of costs order. R v Liverpool City Council, ex p Filla [1996] COD 24 (claimant non-disclosure at the permission stage); R v Borough of Milton Keynes, ex p Macklen 30 April 1996 unreported (failure to write letter before claim); R (Arslan) v SSHD [2006] EWHC 1877 (Admin) (Secretary of State successful but having to pay costs of issuing and interim relief, through unreasonable insistence on speedy removal); {18.1.9} (procedural rigour: costs implications of non-compliance with Pre-Action Protocol). 18.1.32 Costs on an indemnity basis. Administrative Court: Judicial Review Guide (2020 edition) at §§21.2.3, 23.2.5; CPR 44.3; R (Lockerby) v Medway County Court [2018] EWHC 2496 (Admin) [2018] ACD 121 at §17 (costs on an indemnity basis against county court, to mark the court’s disapproval of the complete failure to engage with the proceedings); R (Kay) v Leeds Magistrates’ Court [2018] EWHC 2842 (Admin) [2018] 6 Costs LR 1317 at §§23, 25 (costs on an indemnity basis granted against interested party); R (Kalah) v SSHD [2017] EWHC 2373 (Admin) [2017] ACD 128 (granting an adjournment but ordering costs on an indemnity basis against defendant); R (Kalu) v SSHD [2018] EWHC 1802 (Admin) (costs on an indemnity basis against the SSHD for conduct “unreasonable to a high degree”, throughout); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1282 (Admin) (flouting orders of the Court); R (National Council for Civil Liberties) v SSHD (Procedural Matters) [2018] EWHC 976 (Admin) at §17 (unreasonable conduct by defendant as to late skeleton and late application for extension of time); R (Green) v Commissioner of Police of the Metropolis [2018] EWHC 3657 (Admin) (statements changing over time and court orders not complied with); R v Governing Body of Irlam & Cadishead Community High School, ex p Salford City Council [1994] ELR 81, 88C-D (indemnity basis costs against claimant); R v Ministry of Agriculture Fisheries and Food, ex p SP Anastasiou [1995] COD 339 (indemnity basis costs where unnecessary third party application for a reference). 18.1.33 Non-prohibitive costs in environmental judicial review. {18.4.16} (Aarhus costs cap in environmental cases: general); {18.4.17} (costs and Aarhus Convention claims); R (Edwards) v Environment Agency (No 2) [2010] UKSC 57 [2011] 1 WLR 79 at §§2-3 (requirement that access to court “not prohibitively expensive” under Aarhus Convention and certain environmental EU Directives); R (Ewing) v Office of the Deputy Prime Minister [2005] 254

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EWCA Civ 1583 [2006] 1 WLR 1260 at §41 (general need to avoid costs principles “applied in a way which seriously impedes the right of citizens to access to justice, particularly when seeking to protect their environment”). 18.1.34 Payment on account of costs. CPR 44.2(8) (“Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so”); R (Sri Lalithambika Foods Ltd) v SSHD [2019] EWHC 761 (Admin) at §§157, 166 (claimant ordered to pay £25,000 on account). 18.1.35 Pro bono costs order. Administrative Court: Judicial Review Guide (2020 edition) at §23.14; Legal Services Act 2007 s.194 (court’s power to order a payment to the Access to Justice Foundation in lieu of the costs order which would have been payable had a party represented pro bono had paid representation); CPR 46.7; In re S (A Child) [2015] UKSC 20 [2015] 1 WLR 1631 at §34; Grand v Gill [2011] EWCA Civ 554 [2011] 1 WLR 2253 at §29 (£2,500 ordered to be paid to the Foundation).

18.2 Costs and third parties. An interested party – being a third party ‘directly affected’ and so entitled to be served with the claim – is a party to the proceedings and may in certain circumstances recover costs in light of their success, or be liable to pay costs in light of their failure. The costs position of a third party who is an ‘intervener’, heard by permission of the Court, is approached in accordance with statutory provisions. There is power to make a costs order for or against other third parties, and power to order ‘wasted costs’ against legal representatives. 18.2.1 Interested party: person ‘directly affected’. {22.2} 18.2.2 Costs of interested party opposing failed claim: the Bolton principles.53 Bolton Metropolitan District Council v Secretary of State for the Environment (Practice Note) [1995] 1 WLR 1176 (developer’s participation in failed planning appeal), 1178F-1179A (“(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment … (2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard … or unless he has an interest which requires separate representation … (3) A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords … (4) An award of a third set of costs will rarely be justified, even if there are in theory three or more separate interests”); R (Campaign to Protect Rural England – Kent Branch) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 [2020] 1 WLR 352 at §23 (Bolton principles described as “up to a point … overtaken by events” in relation to “costs of preparing and filing an AOS are concerned”), §24 (Bolton principles “still have an important part to play” because of importance of proportionality); {18.3.7} (permission refused: costs in favour of interested party). 18.2.3 Costs of interested party opposing failed claim: the normal rule. Administrative Court: Judicial Review Guide (2020 edition) at §23.6.1 (“The Court does not generally order an unsuccessful claimant to pay two sets of costs of the substantive claim (typically the costs incurred by the defendant and an interested party), although the Court may order two sets of costs to be paid, in particular where the defendant and the interested party have different interests which require separate representation. If the claimant is acting in the public interest rather than out of personal gain then it is less likely that the court will order the second set of costs”); R (Lewin) v Financial Reporting Council Ltd [2018] EWHC 554 (Admin) at §12 (“the normal rule is that the Court does not order two sets of costs”); R (Smeaton) v Secretary

53The

equivalent of these paragraphs in a previous edition was relied on in Re PSNI [2010] NIQB 91 at §7 (Gillen J); R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin) [2018] 4 WLR 106 at §187 (Singh LJ, Foskett J, Judge Lucraft QC).

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of State for Health [2002] EWHC 886 (Admin) [2002] 2 FLR 146 at §431 (Munby J: “the normal rule … is that two sets of respondents’ costs are not awarded against an unsuccessful claimant for judicial review”), §437 (here, alleged criminality arising, which was that of the interested party); Wychavon District Council v Secretary of State for the Environment [1994] 3 PLR 42 (normally appropriate to make only one order on statutory review, where issues raised by the parties identical); R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 342f-343b (“it is not the normal practice in this court to give two sets of costs”); R v Registrar of Companies, ex p Central Bank of India [1986] QB 1114, 1162F-H (“undoubtedly the general rule … that, if several parties appear in the same interest on an application for judicial review, they will only be allowed one set of costs between them”); R v Industrial Disputes Tribunal, ex p American Express Co Inc [1954] 1 WLR 1118 (“in future, in matters of this sort, we shall not grant more than one set of costs”; “the court will consider very carefully whether or not they will give two sets of costs”); R v Intervention Board for Agricultural Produce, ex p Fish Producers’ Organisation Ltd [1993] 1 CMLR 707, 710 (speaking of protecting claimant “from having to pay costs to all of a number … who have intervened and chosen not to leave it to one [defendant] to carry the argument”). 18.2.4 Costs of interested party opposing failed claim: nature of the interest/issue. R (Lewin) v Financial Reporting Council Ltd [2018] EWHC 554 (Admin) at §17 (interested parties had “separate interests” but “no conflict of interest” and “no separate arguments … referable only to [them]”); R (Bedford) v London Borough of Islington [2002] EWHC 2044 (Admin) [2003] Env LR 463 at §296 (developer not awarded its costs, commenting that “[it] does have a separate interest, but it was not at the time a conflicting interest. [T]he entitlement to separate representation, and an interest separately to protect, does not of itself warrant the grant of a second set of costs. It is … almost inevitable that the interested party … will be able to make a significant contribution to the argument and that the interested party will be able to make a significant contribution to the evidence”); R v Secretary of State for National Heritage, ex p J Paul Getty Trust [1997] EuLR 407, 419B (“this was a case where there was a separate interest for the Fund to represent and it was appropriate for them to be separately represented”); R v Secretary of State for Agriculture Fisheries and Food, ex p ISK Biosciences Ltd 8 October 1997 unreported (second set of costs granted because discrete issue argued by interested party, even though not necessary to decide that issue). 18.2.5 Costs of interested party opposing failed claim: illustrations. R (Trustees of the Friends of the Lake District) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 281 (third party’s costs refused because, although differences in emphasis, essentially covered the same ground as the defendant); R (Friends of the Earth and Greenpeace) v Secretary of State for Environment Food and Rural Affairs [2001] EWCA Civ 1950 (second set of costs in the Court of Appeal “very unusual” and “no question of two sets of costs here”, where unsuccessful claimants were “public interest groups”); R (Alliance Spring Co Ltd) v First Secretary of State [2005] EWHC 18 (Admin) [2005] 3 PLR 76 (second set of costs, but limited to preparation of evidence to answer a particular factual allegation); R (Great North Eastern Railway Ltd) v Office of Rail Regulation [2006] EWHC 1942 (Admin) (claimant ordered to pay costs of defendant and two interested parties); R (Kensington & Chelsea Royal LBC) v Secretary of State for Communities & Local Government [2012] EWHC 1785 (Admin) (ordering costs in favour of developer); R (Repic Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] EWHC 2015 (Admin) [2010] PTSR 550 at 571G (claimant ordered to pay defendant and first interested party’s costs); R (Austin) v Secretary of State for Communities & Local Government [2008] EWHC 3200 (Admin) at S93 (second set of costs granted because of issues on which city council was entitled to be heard); R (Smeaton) v Secretary of State for Health [2002] EWHC 886 (Admin) [2002] 2 FLR 146 at §438 (second set of costs ordered because the “simple reality is that this case without the active participation of [the interested party] would have been a ‘Hamlet without the Prince’”); R (SSHD) v Mental Health Review Tribunal [2002] EWCA Civ 1868 (2003) 6 CCLR 319 at §§32-33 (wrong in principle to deny the interested party his costs where he had the “very special interest” that his liberty was at stake); R v Director General of Electricity Supply, ex p First Hydro Company 2 March 2000 unreported (second set of costs, where important case 256

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and claimant must have appreciated what it was taking on in launching these proceedings); R v Tandridge District Council, ex p Al Fayed [2000] 1 PLR 58 (transcript) (interested party obtaining half of its costs in Court of Appeal); R (Association of Pharmaceutical Importers) v Secretary of State for Health [2001] EWCA Civ 1986 [2002] EuLR 197 (second set of costs awarded); R v Cotswold District Council, ex p Barrington (1998) 75 P & CR 515 (two sets of costs granted at the permission stage); R v Ministry of Agriculture Fisheries and Food, ex p Monsanto Plc [1999] QB 1161, 1174B (having failed in application for interim remedy, claimant ordered to pay defendant’s costs and 75% of interested party’s costs); R v SSHD, ex p Arthur H Cox Ltd [1999] EuLR 677 (transcript) (interested party awarded half its costs because, although additional arguments unsuccessful, claimant had made a serious allegation which, notwithstanding a clear warning, had only be withdrawn at the last moment); R v Medicines Control Agency, ex p Rhone-Poulenc Rorer Ltd [1999] EuLR 181 (transcript) (one interested party awarded half its costs, another awarded one-third); {18.3.7} (permission refused: costs in favour of interested party). 18.2.6 Costs of interested party: supporting successful claim. R (London & South Eastern Railway Ltd) v British Transport Police Authority [2009] EWHC 1255 (Admin) at §23 (interested party who supported the successful claim, and raised issues to protect its own interests, awarded 75% of its costs); R v Secretary of State for Health, ex p Eastside Cheese Company (1999) 11 Admin LR 254 (Moses J) (defendant ordered to pay costs of interested party (of instructing counsel, but not solicitors), where could have brought own proceedings, which could have been consolidated or heard together, and would have succeeded) (order not disturbed by CA [1999] EuLR 968). 18.2.7 Costs against interested party: successful challenge to court or tribunal. R (Faqiri) v Upper Tribunal [2019] EWCA Civ 151 [2019] 1 WLR 4497 at §51 (jurisdiction to order costs against third party, and appropriate where challenged decision is of a court or tribunal arising out of an appeal against a decision by the Secretary of State who then appears as interested party to resist judicial review); R (Gourlay) v Parole Board [2017] EWCA Civ 1003 [2017] 1 WLR 4107 at §27 (Hickinbottom LJ: “Often, the court or tribunal determination challenged will have been made following a lis between competing parties, usually an individual affected by the initial administrative decision on the one hand and the arm of the executive that made the decision on the other. When a dissatisfied party seeks to challenge the determination of the court or tribunal by way of judicial review, the other party to that lis will be an interested party in that claim; and will have an opportunity to make submissions in support of the decision, in a similar way to the respondent to an appeal. Where that other party plays an active part in the judicial review, it is likely that it will have a costs order made against it as an interested party, if the challenge is successful. Consequently, the question of costs against the court or tribunal itself arises only infrequently; because, usually, the court or tribunal plays no part in the case and there is another party which is a more appropriate target for a costs order”); R (Gudanaviciene) v Immigration and Asylum First Tier Tribunal [2017] EWCA Civ 352 [2017] 1 WLR 4095 at §34 (explaining that, where the Secretary of State was the other party to the underlying proceedings, “if the Secretary of State had unsuccessfully opposed the judicial review application … no doubt the Secretary of State could have been ordered to pay the costs”); R (Kay) v Leeds Magistrates’ Court [2018] EWHC 2842 (Admin) [2018] 6 Costs LR 1317 at §§20-21 (costs against interested party defending magistrates’ decision); R (DPP) v Manchester and Salford Magistrates’ Court [2017] EWHC 3719 (Admin) [2019] 1 WLR 2617 at §64 (half costs ordered against interested party unsuccessfully defending non-participating magistrates’ decision); R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin) [2015] PTSR 1045 at §62 (costs against local authority unsuccessfully defending magistrates’ decision, applying “the normal rule”); R (Aldous) v Dartford Magistrates’ Court [2011] EWHC 1919 (Admin) (costs provisionally awarded against local authority, who had pursued the unlawful magistrates’ committal and had filed an acknowledgment of service as an interested party, resisting judicial review); R (Varma) v Redbridge Magistrates’ Court [2009] EWHC 836 (Admin) at §§89-90 (CPS ordered to pay half of claimant’s costs, where they should not have pursued the case to summary trial, nor contested the judicial review); R (Mills) v Birmingham Magistrates Court [2005] EWHC 2732 (Admin) (costs against CPS, who sought 257

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and defended the impugned magistrates’ order); R v Manchester Stipendiary Magistrate, ex p Granada Television Ltd [1999] QB 1202 (DC), 1213A-B (costs against interested party unsuccessful in defending magistrate’s decision); R (Holme) v Liverpool Magistrates Court [2004] EWHC 3131 (Admin) (court declining costs against CPS who had attended to assist the court, the defendant magistrates not appearing); R (Pilot Foods Ltd) v Horseferry Road Magistrates’ Court [2003] EWHC 1447 (Admin) at §29 (costs against local authority whose regulatory breach led to impugned liability orders and who could have agreed a consent order allowing the claim); R (Kent) v Teesside Magistrates Court [2020] EWHC 304 (Admin) at §15 (where Court determined that claim an Aarhus Convention claim, claimant’s costs of those proceedings ordered against interested party who had argued to the contrary). 18.2.8 Costs against interested party unsuccessfully resisting the claim: other. R (Commissioner of Police for the Metropolis) v Police Medical Appeal Board [2020] EWHC 345 (Admin) at §78 (ordering interested party to pay 75% of claimant’s costs); R (London & South Eastern Railway Ltd) v British Transport Police Authority [2009] EWHC 1255 (Admin) at §§24-28 (interested party who resisted the claim, and raised arguments of its own, ordered to pay 10% of the costs awarded to the claimant and successful interested party); R (Holmes) v General Medical Council [2001] EWHC Admin 321 (interested party having to pay costs or claimant and defendant, where they each agreed that judicial review should be granted, and the interested party alone had unsuccessfully sought to uphold the decision); R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036 [2004] QB 395 at §90 (Secretary of State as interested party ordered to pay claimant’s costs regarding issues which Secretary of State introduced) (HL is [2005] UKHL 58 [2006] 2 AC 148); R v Family Health Services Appeal Authority, ex p E Moss Ltd 29 April 1998 unreported (claimant’s costs paid, as to 75% by defendant and as to 25% by interested party); R (Towry Law Financial Services plc) v Financial Services Ombudsman Service Ltd [2002] EWHC 1603 (Admin) at §23 (declining costs against interested party who did not concede claim against ombudsman immediately, given the absence of a warning from the claimant at the outset as to costs and because settlement should not be discouraged); R (Sussex Police Authority) v Cooling [2004] EWHC 1920 (Admin) (post-permission costs against interested party who unsuccessfully defended impugned decision of certifying medical officer); R (O’Callaghan) v Charity Commission [2007] EWHC 2491 (Admin) (50% of claimant’s costs from interested party who had made much of the running in unsuccessfully defending). 18.2.9 Costs against interested party supporting unsuccessful claim. R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437 [2012] QB 394 (interested party and claimant each appealing against refusal of judicial review; Secretary of State’s costs to be paid by appellants: 75% by claimant and 25% by interested party). 18.2.10 Interveners: other persons heard with permission. {22.2.4} 18.2.11 Costs and interveners (2015 Act s.87): introduction. Administrative Court: Judicial Review Guide (2020 edition) at §23.7; Criminal Justice and Courts Act 2015 s.87(1), (10)-(11). (“Interveners and costs. (1) This section applies where – (a) a person is granted permission to file evidence or make representations in judicial review proceedings, and (b) at that time, the person is not a relevant party to the proceedings. (2) That person is referred to in this section as an ‘intervener’. (10) [meaning of ‘a relevant party’] (11) If a person who is an intervener in judicial review proceedings becomes a relevant party to the proceedings, the person is to be treated for the purposes of subsections (3) and (5) as having been a relevant party, rather than an intervener, at all times when involved in the proceedings”); {22.2.4} (interveners: other person heard with permission). 18.2.12 No costs in favour of intervener, absent exceptional circumstances. Administrative Court: Judicial Review Guide (2020 edition) at §23.7.2; Criminal Justice and Courts Act 2015 s.87(3)-(4) (“(3) A relevant party to the proceedings may not be ordered by the High Court or the Court of Appeal to pay the intervener’s costs in connection with the proceedings. (4) Subsection (3) does not prevent the court making an order if it considers that there are exceptional circumstances that make it appropriate to do so”). 258

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18.2.13 Circumstances requiring costs order against intervener. Administrative Court: Judicial Review Guide (2020 edition) at §23.7.3; Criminal Justice and Courts Act 2015 s.87(5)-(7), (9) (“(5) On an application to the High Court or the Court of Appeal by a relevant party to the proceedings, if the court is satisfied that a condition described in subsection (6) is met in a stage of the proceedings that the court deals with, the court must order the intervener to pay any costs specified in the application that the court considers have been incurred by the relevant party as a result of the intervener’s involvement in that stage of the proceedings. (6) Those conditions are that – (a) the intervener has acted, in substance, as the sole or principal applicant, defendant, appellant or respondent; (b) the intervener’s evidence and representations, taken as a whole, have not been of significant assistance to the court; (c) a significant part of the intervener’s evidence and representations relates to matters that it is not necessary for the court to consider in order to resolve the issues that are the subject of the stage in the proceedings; (d) the intervener has behaved unreasonably. (7) Subsection (5) does not require the court to make an order if it considers that there are exceptional circumstances that make it inappropriate to do so … (9) In this section, ‘judicial review proceedings’ means – (a) proceedings on an application for leave to apply for judicial review, (b) proceedings on an application for judicial review, (c) any proceedings on an application for leave to appeal from a decision in proceedings described in paragraph (a) or (b), and (d) proceedings on an appeal from such a decision, and the proceedings described in paragraphs (a) to (d) are ‘stages’ of judicial review proceedings”). A previous example is R (E) v Governing Body of JFS [2009] UKSC 15 [2010] 2 AC 728 at §§216-217 (costs order against third party intervener inappropriate in relation to the Administrative Court, given the express basis (no costs liability) on which permission to intervene granted; but 20% of costs in CA upheld as appropriate given that “the nature of the … intervention was transformed when the case reached the Court of Appeal”). 18.2.14 Costs and interveners: ‘exceptional circumstances’. Criminal Justice and Courts Act 2015 s.87(8) (“(8) In determining whether there are exceptional circumstances that are relevant for the purposes of subsection (4) or (7), the court must have regard to criteria specified in rules of court”). 18.2.15 Intervener: prospective order as to costs. CPR PD54A §13.4 (“If the applicant [under CPR 54.17] is seeking a prospective order as to costs, the letter should say what kind of order and on what grounds”). 18.2.16 Costs orders in favour of or against other third parties. Senior Courts Act 1981 s.51(3) (“The court shall have full power to determine by whom and to what extent the costs are to be paid”); CPR 46.2 (“(1) Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must – (a) be added as a party to the proceedings for the purposes of costs only; and (b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further. (2) This rule does not apply – (a) where the court is considering whether to – (i) make an order against the Lord Chancellor in proceedings in which the Lord Chancellor has provided legal aid to a party to the proceedings; (ii) make a wasted costs order (as defined in rule 46.8); and (b) in proceedings to which rule 46.1 applies (pre-commencement disclosure and orders for disclosure against a person who is not a party).”); Goodwood Recoveries Ltd v Breen [2005] EWCA Civ 414 [2006] 1 WLR 2723 (considering exercise of this power); R (Davies) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC 2762 (Admin) (directing that individual be joined as a party so that costs of failed judicial review could be sought against him); R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 [2006] 1 WLR 1260 (pre-permission costs granted against claimant vexatious litigant, whether or not technically a “party”); R v Darlington Borough Council, ex p Association of Darlington Taxi Owners (No 2) [1995] COD 128 (costs ordered against individual members of unincorporated association, although non-parties, they having maintained and financed the failed proceedings); R v Secretary of State for Foreign and Commonwealth Affairs, ex p British Council of Turkish Cypriot Associations [1998] COD 336 (inappropriate to consider 259

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costs orders against individual members of claimant unincorporated association until clear that society as a whole not going to meet costs order); R v Lambeth LBC, ex p Wilson (1998) 30 HLR 64 (no jurisdiction to make wasted costs orders under s.51(6) against individual council officer; jurisdiction under s.51(3) but generally needing fraud); R v SSHD, ex p Eniah Mudzengi [1993] Imm AR 320 (costs order against claimant’s unqualified representative, for failure to notify defendant and Court that application being abandoned). 18.2.17 Wasted costs orders against legal representatives. Administrative Court: Judicial Review Guide (2020 edition) at §§21.2.2, 23.13; Senior Courts Act 1981 s.51(6), (7) (“(6) … the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court. (7) In subsection (6), ‘wasted costs’ means any costs incurred by a party – (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay. (7A) Where the court exercises a power under subsection (6) in relation to costs incurred by a party, it must inform such of the following as it considers appropriate – (a) an approved regulator; (b) the Director of Legal Aid Casework”); CPR 46.8, CPR PD46 §5; {18.3.11} (wasted costs at the permission stage); R v Horsham District Council, ex p Wenman [1995] 1 WLR 680 (warning of possible wasted costs orders against those who are not adequately informed as to judicial review principles); R v SSHD, ex p Abbassi The Times 6 April 1992 (wasted costs where frivolous judicial review claim, in the face of an alternative remedy); R v SSHD, ex p Shahina Begum [1995] COD 176 (wasted costs order made for unreasonable and negligent failure to make full and frank disclosure); R v London Borough of Westminster, ex p Geehan & Butler [1995] COD 204 (although no arguable ground for judicial review, not negligent to bring proceedings, given urgency of case and destitution faced by homeless claimant); R v London Borough of Hackney, ex p Rowe [1996] COD 155 (conduct over-zealous; but not improper, unreasonable or negligent); Lubrizol Ltd v Tyndallwoods Solicitors 8 April 1998 unreported (claim misconceived but not negligent or unreasonable); R v SSHD, ex p Tim Fat Wong [1995] COD 331 (claimant’s solicitor acted unreasonably in neither getting on with the case or going off the record, but no wasted costs order because the latter would have caused an injustice); R v Lambeth LBC, ex p Wilson (1998) 30 HLR 64 (no jurisdiction to make wasted costs orders under Senior Courts Act 1981 s.51(6) against individual officer); 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); R (Yildrim) v Immigration Appeal Tribunal [2002] EWHC 1939 (Admin) (wasted costs inappropriate because Court not satisfied as to causation, ie. that CLS funding would have been refused if claimant’s solicitors had acted properly); R (Hide) v Staffordshire County Council [2007] EWHC 2441 (Admin) (declining wasted costs where impact would be solicitor’s bankruptcy); R (C) v Salford City Council [2010] EWHC 2325 (Admin) (declining wasted costs order where erroneous reliance on statute had not been pointed out by defendant in pre-claim correspondence).

18.3 Costs and the permission stage. Generally speaking: (1) where permission is granted, costs are reserved or costs in the case; (2) where permission is refused, a defendant can recover (a) reasonable costs of (and claimed in) an acknowledgment of service, but not (b) costs of attending an oral permission hearing. 18.3.1 Power to order costs at the permission stage. Senior Courts Act 1981 s.51(1)-(2) {18.1.1}; {P21} (the permission stage); R (Wilson) v Prime Minister [2019] EWCA Civ 304 [2019] 1 WLR 4174 at §67 (s.51 applicable to judicial review permission stage); R v Camden LBC, ex p Martin [1997] 1 WLR 359, 365A (permission stage costs covered by SCA 1981 s.51); Singh v Public Service Commission [2019] UKPC 18 at §32 (“jurisdiction to make an order for costs of the withdrawn [permission] application, notwithstanding that no judicial review proceedings were thereafter commenced”). 260

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18.3.2 Permission granted: costs in the case unless stated otherwise. Practice Statement (Judicial Review: Costs) [2004] 2 All ER 994 (unless otherwise stated, “grant of permission … deemed to contain an order that costs be costs in the case”); Administrative Court: Judicial Review Guide (2020 edition) at §23.4.1. 18.3.3 Costs where permission refused: costs of the AOS (Mount Cook). R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §76(1) (“certainly in a case to which the Pre-Action Protocol applies and where a defendant or other interested party has complied with it … a successful defendant or other party at the permission stage who has filed an acknowledgment of service pursuant to CPR 54.8 should generally recover the costs of doing so from the claimant, whether or not he attends any permission hearing”); R (Richardson) v Judicial Executive Board [2018] EWHC 1825 (Admin) (costs of the AOS/SGR reasonable, proportionate and sufficient, even though court gave directions for oral hearing and for skeleton argument from defendant); R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 [2006] 1 WLR 1260 (endorsing Mount Cook) at §42 (“the court must be particularly careful to ensure that the costs falling on the judicial review claimant are not disproportionately inflated by the involvement of the other parties at the permission stage”), §43 (summary grounds should not be detailed, especially if preaction protocol followed first); R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166 [2008] 1 WLR 878 at §16 (rule of practice that “an unsuccessful applicant for permission must expect to pay the defendant’s costs of putting in an acknowledgment of service”), §21 (included if ultimate defendant’s costs order silent), §33 (but limited to the costs of discharging the proper, narrow function of the AOS); R (Riniker) v Employment Tribunals & Regional Chairmen [2009] EWCA Civ 1450 at §29 (costs of AOS inappropriate where served late and not preceded by compliance with the pre-action protocol); R (Roudham & Larling Parish Council) v Breckland Council [2008] EWCA Civ 714 at §29 (need to give fair weight to the work necessary for even short-form summary grounds). 18.3.4 Costs of the AOS: the usual procedure. Administrative Court: Judicial Review Guide (2020 edition) at §§23.4.2-23.4.4; R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 [2006] 1 WLR 1260 at §47 ((i) AOS should include any Mount Cook costs application; (ii) paper refusal of permission should include indication of whether/what proposed to order; (iii) 14 days for claimant to respond; (iv) 7 further days for defendant/ third party to reply; (v) decision then made on paper), endorsed in R (Loucif) v SSHD [2011] EWHC 3640 (Admin). 18.3.5 Costs where permission refused: costs of oral permission hearing. Administrative Court: Judicial Review Guide (2020 edition) at §23.4.5; CPR PD54A §8.5 (“Neither the defendant nor any other interested party need attend a hearing on the question of permission unless the court directs otherwise”), §8.6 (“Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant”); R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §76(2)-(7) (“a defendant who attends and successfully resists the grant of permission at a renewal hearing should not generally recover from the claimant his costs of and occasioned by doing so”; need for “exceptional circumstances” which “may consist … of …: (a) the hopelessness of the claim; (b) the persistence in it by the claimant after having been alerted to facts and/or of the law demonstrating its hopelessness; (c) the extent to which the court considers that the claimant, in the pursuit of his application, has sought to abuse the process of judicial review for collateral ends – a relevant consideration as to costs at the permission stage, as well as when considering discretionary refusal of relief at the stage of substantive hearing, if there is one; and (d) whether, as a result of the deployment of full argument and documentary evidence by both sides at the hearing of a contested application, the unsuccessful claimant has had, in effect, the advantage of an early substantive hearing of the claim”; relevant to consider “the extent to which the unsuccessful claimant has substantial resources which it has used to pursue the unfounded claim and which are available to meet an order for costs”); R (Wilson) v Prime Minister [2019] EWCA Civ 304 [2019] 1 WLR 4174 at §§73-74 (judge entitled to order costs in favour of defendant in respect of lengthy permission hearing in a weak 261

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and controversial case where the defendant had assisted the court); R (Abbott Laboratories Ltd) v NHS Herts Valleys Clinical Commissioning Group [2019] EWHC 1999 (Admin) at §17 (court awarding costs, including the renewal hearing, in favour of the defendant and interested party); R (Al-Ali) v Brent LBC [2018] EWHC 3634 (Admin) at §§18-19 (“exceptional circumstances” justifying ordering claimant to pay defendant’s costs of oral permission hearing, where “this claim was always doomed to fail” and “the defendant has had to go to a great deal of expense to establish that [the claimant] has consistently told untruths”); R (Payne) v Caerphilly County Borough Council [2004] EWCA Civ 433 (overturning costs order of permission hearing, there being no exceptional circumstances under the Mount Cook principle); R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166 [2008] 1 WLR 878 at §16 (rule of practice whereby “a defendant which chooses to attend and oppose an oral application for permission cannot ordinarily expect to recover its costs of doing so even if permission is refused, but may exceptionally be allowed them – for example where it has been able to alert the court to an abuse of its process”), §21 (oral hearing costs excluded from eventual defendant’s costs order if silent); R (Islamic Human Rights Commission) v Civil Aviation Authority [2006] EWHC 2465 (Admin) (£10,000 awarded to each defendant in respect of permission hearing); R (Gransian Ltd) v SSHD [2008] EWHC 3431 (Admin) at §82 (circumstances, as to conduct and underlying merits, warranting costs order of attending oral hearing); R (Riniker) v Employment Tribunals & Regional Chairmen [2009] EWCA Civ 1450 at §29 (circumstances not justifying costs of attendance at oral hearing). 18.3.6 Costs and rolled-up hearing. R (Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC 1546 (Admin) [2020] ACD 84 (costs of defending the proceedings including the oral hearing awarded against claimant where permission for judicial review refused at rolled-up hearing); {21.4} (directing a rolled-up hearing). 18.3.7 Permission refused: costs in favour of interested party. Administrative Court: Judicial Review Guide (2020 edition) at §23.6.2 (“The Court may … and often does, order an unsuccessful claimant to pay two sets of costs of preparing acknowledgements of service at the permission stage”); R (Campaign to Protect Rural England – Kent Branch) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 [2020] 1 WLR 352 (in the context of planning cases) at §22 (“any party served with the claim form is prima facie entitled to its reasonable and proportionate costs of their preparation if, having considered that documentation, the judge refuses permission to allow the claim to go further”), §24 (test is whether “reasonable and proportionate”), §25 (“it will not necessarily follow that the costs of each defendant or interested party will be proportionate and thus recoverable”; “where a judge has two sets of summary grounds … he or she will consider the utility of each”), §37 (“the applicable principles”: “(a) When permission to seek [judicial] review is refused, a claimant may be liable to more than one defendant and/or interested party for their costs of preparing and filing their AoS and summary grounds. (b) It is not necessary for the additional defendant(s) and/or interested party to show ‘exceptional’ or ‘special’ circumstances in order, in principle, to recover those costs. (c) However, to be recoverable, those costs must be reasonable and proportionate. So, for example, if there is an obvious lead defendant and the court was not assisted by the AoS or summary grounds of an additional defendant(s) and/or interested party, then the costs of that additional defendant and/or interested party may not be proportionate and so will not be recoverable. That is an assessment which is case-specific and not susceptible to more general rules”); R (Bertoncini) v Hammersmith and Fulham LBC 2 June 2020 unreported at §26 (claimant ordered to pay interested party’s costs, because: “The voice of the interested party … [was] an important one”). 18.3.8 Claimant’s costs where claim resolved prior to permission. Singh v Public Service Commission [2019] UKPC 18 (appropriate to order costs of withdrawn claim for permission, the matter having been resolved, where defendant failed to respond to pre-action letter even by asking for an extension of time); R v Royal Borough of Kensington & Chelsea, ex p Ghebregiogis (1995) 27 HLR 602 (appropriate in exceptional cases to order costs against defendant where failing to concede well-founded case until after judicial review lodged;

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here, admirably clear letter before claim); {18.5.3}-{18.5.10} (costs where claim has settled/ become academic). 18.3.9 Pre-permission/permission stage costs: whether included in final costs order. CPR 44.2(6)(d) (“(6) The orders which the court may make under this rule include an order that a party must pay – … (d) costs incurred before proceedings have begun”); R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166 [2008] 1 WLR 878 at §5 (court at substantive hearing awarding defendant’s costs can exclude costs of unsuccessfully having opposed permission), §§21, 31 (judge should deal expressly with whether permission-stage costs included; if order silent, includes reasonable costs prior to grant of permission, costs of the AOS but not any oral hearing); Practice Statement (Judicial Review: Costs) [2004] 2 All ER 994 (unless otherwise stated, “grant of permission … deemed to contain an order that costs be costs in the case”); R v Director General of Electricity Supply, ex p Scottish Power Plc 3 February 1997 unreported (CA expressly awarding successful claimant the costs of the permission application); R v Metropolitan Stipendiary Magistrate, ex p Ali The Independent 12 May 1997 (costs against magistrate limited to post-permission costs); R v Wandsworth LBC, ex p M [1998] ELR 424, 429B (claimant awarded costs of proceedings, but no order as to costs of permission hearing); R (M) v Croydon LBC [2012] EWCA Civ 595 [2012] 1 WLR 2607 at §72 (successful claimant awarded 50% of pre-permission costs and 100% of post-permission costs). 18.3.10 Costs and interim relief. R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin) at §30 (costs order against claimant appropriate where interim relief refused at hearing). 18.3.11 Wasted costs at the permission stage. {18.2.17} (wasted costs orders against legal representatives); R (Gransian Ltd) v SSHD [2008] EWHC 3431 (Admin) (permission refused and wasted costs order made against claimant’s solicitors for unreasonable conduct); R v Immigration Appeal Tribunal, ex p Gulbamer Gulsen [1997] COD 430 (common law jurisdiction to order wasted costs regarding permission stage); R v SSHD, ex p Mahmood [1999] COD 119 (wasted costs granted in relation to additional permission hearing caused by non-attendance); 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).

18.4 Public interest costs, costs capping and the environment. The public interest is well-recognised as influencing costs in judicial review. Courts can decide in appropriate cases, having regard to the interests of justice and the public interest, that claimants: (1) should have early certainty that they will be responsible for no or capped costs; or (2) should not face costs orders where their claims have failed. A special costs and costs protection regime applies in environmental (Aarhus Convention) cases. 18.4.1 Judicial review costs and the public interest. R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 [2005] 1 WLR 2600 at §70 (“there is a public interest in the elucidation of public law by the higher courts in addition to the interests of the individual parties. One should not therefore necessarily expect identical principles to govern the incidence of costs in public law cases, much less the ‘arterial hardening’ of guidance into rule”); R (Ministry of Defence) v Wiltshire & Swindon Coroner [2005] EWHC 889 (Admin) [2006] 1 WLR 134 at §34 (Collins J: “The principle must be that in the court’s general discretion in relation to costs, and, more importantly, in ensuring that there is proper access to justice and if the needs of justice require, appropriate orders can be made”). 18.4.2 No order as to costs: public interest cases at common law. R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166 [2008] 1 WLR 878 at §21 (“In contrast to a judicial review claim brought wholly or mainly for commercial or proprietary reasons, a claim brought partly or wholly in the public interest, albeit unsuccessful, may properly result 263

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in a restricted or no order for costs”); R (Smeaton) v Secretary of State for Health [2002] EWHC 886 (Admin) [2002] 2 FLR 146 at §410 (“cases where public interest or analogous considerations will make it inappropriate in all the circumstances to [order] costs”), §421 (here, “not a matter of genuine public concern at all”); New Zealand Maori Council v Attorney-General of New Zealand [1994] 1 AC 466 (PC), 485G-H (no order as to costs on the appeal since important to examine point raised by the claimant “not … out of any motive of personal gain [but] … in the interest of … an important part of the heritage of New Zealand”); R (Friends of the Earth and Greenpeace) v Secretary of State for Environment Food and Rural Affairs [2001] EWCA Civ 1950 at §5 (no order for costs in CA, in part because “the public interest in this particular area, the area of public health and well-being, is obviously very great and very exceptional”); R v Secretary of State for the Environment, ex p Challenger [2001] Env LR 209 (no costs order where human rights case of potential importance and claimants of limited means); R v Secretary of State for the Environment, ex p Shelter [1997] COD 49 (no order against claimant charity where pending cases raising the same issue, being of genuine public concern, claimant’s involvement assisted the Court and likely alternative would have been legally-aided claimant from whom defendant unlikely to recover costs); R (Greenpeace Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWCA Civ 1656 [2006] Env LR 627 at §§38-40 (judge entitled to decide no order for costs, where important issues and public interest); cf R (Mencap) v Parliamentary & Health Service Ombudsman [2011] EWHC 3351 (Admin) at §46 (ordering costs against claimant charity: “The public interest requirement of its challenge was fully accounted for by the capping order that was made of £25,000”). 18.4.3 Common law origin of costs capping orders: protective costs orders (PCOs). See especially R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 [2005] 1 WLR 2600 and R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749 [2009] 1 WLR 1436. 18.4.4 Costs protection: defendant agreeing to bear its own costs. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 179B (“Fortunately in this case there is no issue between the parties as to costs. If the department succeeds, it does not ask for costs against Mrs Gillick here or below”); R (Refugee Legal Centre) v SSHD [2004] EWHC 684 (Admin) [2004] Imm AR 142 at §8 (“The claimant … requested and in due course received an assurance that the [Secretary of State] would not seek costs if he succeeded in resisting the claim for judicial review”) (CA is at [2004] EWCA Civ 1481 [2005] 1 WLR 2219). 18.4.5 Costs protection: costs liability as a condition of permission to appeal (PTA). R (Brown) v SSHD [2015] UKSC 8 [2015] 1 WLR 1060 at 1062H (SC granting PTA to SSHD “subject to her paying the costs of the appeal in any event”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1164C (“the Appeal Committee, as a condition of giving [permission] to appeal, directed that the appellant bear the [defendant]’s costs of the appeal in any event”); R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 714 (Admin) [2009] AC 756 (PTA to HL on basis that claimant would recover costs in any event) (HL is [2008] UKHL 60 [2009] AC 756); R (Medical Justice) v SSHD [2011] EWCA Civ 269 [2011] 1 WLR 2852 at §6 (PTA to the CA on condition that costs order not disturbed and Secretary of State to pay claimant’s costs in the CA in any event). 18.4.6 Costs protection: ‘no costs’ as condition of permission to participate. R v Secretary of State for the Environment, ex p O’Byrne The Times 12 November 1999 (local authority joined as second defendant, on terms that, even if unsuccessful, claimant would not have to bear its costs). 18.4.7 Defendant agreeing to pay claimant’s costs in any event. See Barnard v Gorman [1941] AC 378, 388. 18.4.8 Judicial review costs capping orders (JRCCOs): overview. Administrative Court: Judicial Review Guide (2020 edition) at §24.1 (“A judicial review costs capping order 264

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(‘JRCCO’) may take a number of forms. Usually, the order will specify a limit on the amount that a claimant can be ordered to pay in respect of the other side’s costs if the claimant loses. … Where a JRCCO is granted the order must be coupled with an order placing a limit on the amount that a claimant who is successful can recover from a defendant even if the claimant ultimately wins the case (sometimes called a reciprocal costs capping order)”), §24.2.1 (“A JRCCO may only be granted after permission to apply for judicial review has been granted”), §24.2.3 (“The court may only make a JRCCO if it is satisfied that: [1] The proceedings are public interest proceedings. Public interest proceedings are defined to mean that the issue which is the subject of the proceedings is of general public importance. Further, the public interest requires the issue to be resolved and the proceedings are likely to provide an appropriate means of resolving it. When considering this issue, the court must have regard to the number of people likely to be directly affected if relief is granted, how significant the effect on those people is likely to be, and whether the proceedings involve consideration of a point of law of general public importance. [2] In the absence of the order, the claimant would withdraw the application for judicial review or cease to participate in the proceedings and it would be reasonable to do so”), §24.2.4 (“The court must have regard, when considering whether to make a JRCCO, to the following: [1] Whether, in the absence of the order, the claimant would withdraw the application for judicial review or cease to participate in the proceedings and it would be reasonable to do so. [2] The financial resources of the parties to the proceedings, including the financial resources of any person who provides, or may provide, financial support to the parties. [3] The extent to which the claimant is likely to benefit if relief is granted. [4] The extent to which any person who has provided, or may provide, the applicant with financial support is likely to benefit if relief is granted. [5] Whether legal representatives for the applicant for the order are acting free of charge. [6] Whether the claimant is an appropriate person to represent the interests of other persons or the public interest generally”). 18.4.9 JRCCOs: procedural overview. Administrative Court: Judicial Review Guide (2020 edition) at §24.3. 18.4.10 JRCCOs: 2015 Act ss.88-89. Criminal Justice and Courts Act 2015 ss.88-89, summarised at {18.4.8}. 18.4.11 JRCCOs: CPR 46.16-46.19. CPR 46.16 (“judicial review costs capping order”), CPR 46.17 (“(1) An application for a judicial review costs capping order must – (a) be made on notice and, subject to paragraphs (2) and (3), in accordance with Part 23; and (b) be supported by evidence setting out – (i) why a judicial review costs capping order should be made, having regard, in particular, to the matters at sub-sections (6) to (8) of section 88 of the 2015 Act and sub-section (1) of section 89 of that Act; (ii) a summary of the applicant’s financial resources; (iii) the costs (and disbursements) which the applicant considers the parties are likely to incur in the future conduct of the proceedings; and (iv) if the applicant is a body corporate, whether it is able to demonstrate that it is likely to have financial resources available to meet liabilities arising in connection with the proceedings. (2) Subject to paragraph (3), the applicant must serve a copy of the application notice and copies of the supporting documents on every other party. (3) On application by the applicant, the court may dispense with the need for the applicant to serve the evidence setting out a summary of the applicant’s financial resources on one or more of the parties. (4) The court may direct the applicant to provide additional information or evidence to support its application”); CPR 46.18 (“If the applicant is a body corporate, and the evidence supporting its application in accordance with rule 46.17(1)(b)(iv) sets out that it is unable to demonstrate that it is likely to have financial resources available to meet liabilities arising in connection with the proceedings, the court must consider giving directions for the provision of information about the applicant’s members and their ability to provide financial support for the purposes of the proceedings”); CPR 46.19 (“(1) An application to vary a judicial review costs capping order must be made on notice and, subject to paragraphs (2) and (3), in accordance with Part 23. (2) Subject to paragraph (3), the applicant must serve a copy of the application notice and copies of any supporting documents on every other party. (3) If the application is supported by evidence setting out a summary of the applicant’s 265

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financial resources, the court may, on application by the applicant, dispense with the need for the applicant to serve such evidence on one or more of the parties”). 18.4.12 Rationale of costs capping orders/protective costs orders. R (Elan-Cane) v SSHD [2020] EWCA Civ 363 [2020] 3 WLR 386 at §148 (Henderson LJ; “the underlying public policy which underpins the costs capping regime … [is] promoting access to justice in judicial review proceedings which satisfy the test of being ‘public interest proceedings’”); Swift v Carpenter [2020] EWCA Civ 165 at §18 (“The general purpose of a PCO is to allow a claimant of limited means access to the court in order to advance their case without the fear of an order for substantial costs being made against them, a fear which would inhibit them from continuing with the case”), §§34-42, 52 (discussing the case law on whether a “material private interest” precluding PCO). 18.4.13 JRCCOs: general illustrations. R (Hawking) v Secretary of State for Health and Social Care [2018] EWHC 989 (Admin) [2018] ACD 41 (on renewed application, court satisfied that (i) statutory test of public interest met (ii) personal financial information not appropriate (iii) claimant acting reasonably would withdraw (iv) costs-capping order appropriate); R (We Love Hackney Ltd) v Hackney LBC [2019] EWHC 1007 (Admin) (CCO refused) at §48 (not “public interest proceedings”, so “necessary condition for a CCO is not met”), §52 (“it would not be reasonable for the claimant to withdraw”, given its wealthy backers); R (Ewing) v Isleworth Crown Court [2019] EWHC 288 (Admin) [2019] 2 Cr App R 9 at §8 (CCO granted); Dulgheriu v Ealing LBC [2018] EWHC 1302 (Admin) [2018] ACD 73 at §57 (Holman J: “It cannot be right that a claim of this kind is brought in the names of two individuals of low means if, in truth and in the background, it is being brought or driven, or to some degree supported by, some charitable body with substantial means, and exposure to costs is then avoided by the device of a protective costs order based on the means of the named claimants”); R (Beety) v Nursing and Midwifery Council [2017] EWHC 3579 (Admin) (CCO made); Shindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469 [2017] QB 226 at 251D (costs cap of £15,000); R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin) [2014] ACD 26 at §55 (application to set aside PCO refused); R (Litvinenko) v SSHD [2013] EWHC 3135 (Admin) [2014] ACD 25 (PCO refused). 18.4.14 Procedural rigour: ordering costs lie outside the JRCCO costs cap. R (National Council for Civil Liberties) v SSHD (Procedural Matters) [2018] EWHC 976 (Admin) at §§17, 33 (costs orders relating to defendant’s default ordered to apply outside the claimant’s cost cap). 18.4.15 Setting aside JRCCO. R (Harvey) v Leighton Linslade Town Council [2019] EWHC 760 (Admin) (setting aside costs capping order for financial non-disclosure). 18.4.16 Aarhus costs cap in environmental cases: general. Administrative Court: Judicial Review Guide (2020 edition) at §24.4; Criminal Justice and Courts Act 2015 s.90 (capping of costs: environmental cases); CPR 45.41-45.45, especially CPR 45.43 (“(1) Subject to rules 45.42 and 45.45, a claimant or defendant in an Aarhus Convention claim may not be ordered to pay costs exceeding the amounts in paragraph (2) or (3) or as varied in accordance with rule 45.44. (2) For a claimant the amount is – (a) £5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person; (b) £10,000 in all other cases. (3) For a defendant the amount is £35,000. (4) In an Aarhus Convention claim with multiple claimants or multiple defendants, the amounts in paragraphs (2) and (3) (subject to any direction of the court under rule 45.44) apply in relation to each such claimant or defendant individually and may not be exceeded, irrespective of the number of receiving parties”); CPR 45.41(2) (“In this Section – (a) ‘Aarhus Convention claim’ means a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1), 9(2) or 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters … 1998 (‘the Aarhus Convention’); (b) references to a member or members of the 266

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public are to be construed in accordance with the Aarhus Convention”); {18.1.33} (nonprohibitive costs in environmental judicial review). 18.4.17 Costs and Aarhus Convention claims (ACCs): illustrations. R (Edwards) v Environment Agency [2013] UKSC 78 [2014] 1 WLR 55 (discussing costs under the Aarhus Convention), §19 (summarising the new CPR provisions); R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2015] EWCA Civ 203 [2015] PTSR 1025 at §16 (local authority claimant covered by Aarhus cost cap provisions); R (McMorn) v Natural England [2015] EWHC 3297 (Admin) [2016] PTSR 750 at §240 (“decision … made in respect of powers in national law relating to the environment”), §246 (“significant public benefit in decisions on national environmental law being lawful, and therefore in their lawfulness being tested readily by individuals”, including where the claimant’s “livelihood or property may also be at stake”); R (RSPB) v Secretary of State for Justice [2017] EWHC 2309 (Admin) [2018] Env LR 13 (importance of applying promptly for variation of Aarhus costs cap); R (Bertoncini) v Hammersmith and Fulham LBC 2 June 2020 unreported (interested party having standing to apply for variation of Aarhus default costs cap); R (Kent) v Teesside Magistrates Court [2020] EWHC 304 (Admin) at §15 (where Court determined that claim an ACC, claimant’s costs ordered against interested party who had argued to the contrary); R (Campaign to Protect Rural England – Kent Branch) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 [2020] 1 WLR 352 at §51 (approach to Aarhus cost cap at failed permission stage where claimant facing multiple costs applications).

18.5 Costs and discontinuance/settlement. A claimant who chooses to discontinue judicial review can expect to pay the costs. A claimant who complied with the pre-action protocol and effectively secures the substantial relief sought, after commencing the claim and without a hearing, can generally expect to recover the costs. Partial success can lead to a different order. And where the case has been overtaken by events which are truly independent, the default position is no order as to costs. 18.5.1 Costs on claimant discontinuance. CPR 38.6 (“Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant”); R (Khan) v Governor of HMP The Mount [2020] EWHC 1367 (Admin) (notice of discontinuance pursuant to CPR 38.3), §126 (no reason here to depart from normal rule under CPR 38.6(1) that discontinuing claimant should pay the costs); R v Liverpool City Council, ex p Newman (1992) [1998] JR 178, 179 (Simon Brown LJ: “I have no doubt that if judicial review proceedings are discontinued there is … a general rule that that will be at the [claimant]’s cost, in other words the [defendants] will recover their costs, provided … that such discontinuance can be shown to be consequent upon the [claimant]’s recognition of the likely failure of his challenge”); R (Aegis Group Plc) v Inland Revenue Commissioners [2005] EWHC 1468 (Ch) (claimant ordered to pay costs under CPR 38.6 where judicial review discontinued on transfer of issue to parallel Chancery Division proceedings); Estate of M Kingsley (dec’d) v Secretary of State for Transport [1994] COD 358 (interested party to statutory review awarded its costs, following discontinuance by agreement between claimant and defendant). 18.5.2 Costs and claim withdrawn, with costs to be determined by the court. R (Parveen) v Redbridge LBC [2020] EWCA Civ 194 [2020] 4 WLR 53 at §45 (“where a claim is withdrawn leaving costs to be determined by the court, there is no rule, even as a starting point or default position, that the claimant should pay the defendant’s costs”). 18.5.3 Costs where claim has settled (or become academic): the practice. Administrative Court: Judicial Review Guide (2020 edition) at §§23.5.1-23.5.3 and Annex 5 (ACO Costs Guidance April 2016) §§5-8 (how the parties should assist the court before sending submissions on costs), §5 (“The onus lies on the parties to reach agreement on costs wherever possible, and in advance of asking the Court to resolve the issues, in order to support the overriding objective and ensure that efficient use is made of judicial time”), §6 (“The parties should not 267

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make submissions to the Court on costs following a compromise of the proceedings without first seeking to agree the allocation of costs through reasoned negotiation, mindful of the overriding objective to the CPR, the amount of costs actually at stake and the principles set out in M v Croydon, paragraphs 59-63. This should give them a clear understanding of the basis upon which they have failed to reach agreement, so as to focus their submissions to the court on the points in dispute”), §9 (terms of consent orders), §§10-14 (timetable), §15 content of submissions), §§16-18 (documents). 18.5.4 Costs where claim has settled: the M (Croydon) categories. R (M) v Croydon LBC [2012] EWCA Civ 595 [2012] 1 WLR 2607 at §§60-63, summarised in ZN (Afghanistan) v SSHD [2018] EWCA Civ 1059 at §§50-52, and again in Khan v SSHD [2018] EWCA Civ 1684 [2019] Imm AR 54 at §46 (“[There were] three separate categories of claim. The first category consists of cases where a claimant has been wholly successful, whether following a contested hearing or pursuant to a settlement. In those cases the Court could not see why a claimant should not normally be entitled to all of his costs. Secondly, in cases where a claimant has only succeeded in part, whether following a contested hearing or pursuant to a settlement, … there would often be much to be said for concluding that there should be no order for costs. Thirdly, in cases where there has been some compromise, and the compromise does not actually reflect the claimant’s claims, there is an even stronger case for there to be no order for costs. This is mitigated … by the proviso that there will be some cases in which it may be sensible to consider the underlying claims and consider whether it was ‘tolerably clear’ who would have won if the matter had not settled”); Administrative Court: Judicial Review Guide (2020 edition) at §23.5.4. 18.5.5 Costs where claim has settled: an overview. R (Patel) v SSHD [2020] EWCA Civ 74 at §§19-22 (Hickinbottom LJ: “Essentially, in public law claims as much as any other, whilst costs are primarily a matter for the discretion of the court, the general rule is that a successful party can look to an unsuccessful party for his costs. … Where there has been no determination on the merits, then [there are] three general categories of claim. First, where a claimant had been wholly successful (i.e. has in substance achieved what he set out to achieve), a claimant should generally be entitled to all his costs. Second, where he has succeeded only in part, no order for costs might be appropriate. Third, where there is a compromise that does not actually reflect the claimant’s claims, there is an even stronger case for there to be no order for costs, particularly if it is not “tolerably clear” who would have won if the matter had not settled”), §21 (“It is well-established that the question of who is the ‘successful party’ … requires a fact-specific evaluation by reference to the litigation as a whole … and it has to be considered in the context of the real world”), §22 (“Further relevant observations [are] … i) Where there has been some compromise but that compromise does not actually reflect the claims … ‘there is an even stronger case for there to be no order for costs’ … ii) Where there are a number of strands of claim involved, for a costs order in his favour, a claimant has to show that his claim has been vindicated such that he should be regarded as a successful party … iii) … a clarification of the law during the course of proceedings to the effect that a previous generallyheld view of the law (upon which the one party acted) was wrong does not of itself mean that that party should not pay his opponent’s costs. It is just one factor that the court should take into account when exercising its discretion as to costs. Another factor may of course be that, on the law as properly interpreted, the opponent would have succeeded with his claim in whole or in part”). 18.5.6 Costs where claim has settled: success and causal link. R (Parveen) v Redbridge LBC [2020] EWCA Civ 194 [2020] 4 WLR 53 at §31 (“The fact that the claimant has obtained the relief which he or she was seeking in the proceedings does not necessarily mean that the existence of the proceedings has caused or contributed to that result … causation is a relevant and sometimes decisive factor in the exercise of the court’s discretion concerning costs”), §37 (“success may consist not only of obtaining the relief which the claimant was seeking, but also of obtaining it earlier than would otherwise have been the case”), §41 (“if there is a dispute about whether or to what extent the existence of legal proceedings caused or contributed to the claimant obtaining [the outcome] when she did, the court … would not be concerned so 268

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much with whether the claimant would have won if the proceedings had continued, but rather with the distinct question of what factors had influenced the conduct of the [defendant]”); R (Patel) v SSHD [2020] EWCA Civ 74 at §21 (“the question of who is the ‘successful party’ … requires a fact-specific evaluation by reference to the litigation as a whole”), §22 (discussing positions “Where there has been some compromise but that compromise does not actually reflect the claims”, “Where there are a number of strands of claim involved” and “the situation in which the law ‘changes’ or is clarified during the course of proceedings”), §44 (“it is necessary to take a real-world view of the practical outcome the claimant wished to achieve, particularly as set out in the grounds of challenge and supporting documents”). 18.5.7 Costs where claim has settled: successful claimant. {18.5.4} (the M (Croydon) categories); R (Medway Soft Drinks Ltd) v HMRC [2019] EWCA Civ 1041 at §36 (costs orders in favour of claimants appropriate), §18 (claimants to be regarded as wholly successful), §20 (sufficiently clear link between claim and agreed relief); R (RL) v Croydon LBC [2018] EWCA Civ 726 [2019] 1 WLR 224 at §49 (Moylan LJ: “The court should first consider whether the claimant ‘can say he has been vindicated’ and is ‘the successful party’ … or ‘should be regarded as having succeeded’. … Where there is ‘not a clear winner’ the court may, nevertheless, be able ‘to form a tolerably clear view without much effort’ as to who has won or ‘would have won if the matter had not settled’”); R (M) v Croydon LBC [2012] EWCA Civ 595 [2012] 1 WLR 2607 at §52 (situation where “the defendants accept that the claimant is entitled to all, or substantially all, the relief he claims”), §59 (where claimant “obtains all the relief which he seeks”), §61 (claimant should “recover all his costs, unless there is good reason to the contrary”); R (Tesfay) v SSHD [2016] EWCA Civ 415 [2016] 1 WLR 4853 at §63 (withdrawal of impugned decisions amounted to acceptance that they were materially flawed); R (Bahta) v SSHD [2011] EWCA Civ 895 at §59 (where judicial review commenced after “adequate response” to “an adequately formulated letter before claim”, and where “the claimant then obtains the relief sought, or substantially similar relief, the claimant can expect to be awarded costs against the defendant”), §65 (“When relief is granted, the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and … the burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol”); R (Archer) v HMRC [2019] EWCA Civ 1021 [2019] 1 WLR 6355 (no order for costs despite defendant conceding, where claimant commenced judicial review without awaiting outcome of alternative statutory remedy of making representations). 18.5.8 Costs where claim has settled: partly successful claimant. {18.5.4} (the M (Croydon) categories); R (M) v Croydon LBC [2012] EWCA Civ 595 [2012] 1 WLR 2607 at §60 (situation where the claimant “has only succeeded in part”), §62 (court may be “able to form a view as to the appropriate costs order based on such issues” as “how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim”; there being situations where “there is often much to be said for concluding that there is no order for costs”, by reference to whether “there is not a clear winner” or whether “it may help to consider who would have won if the matter had proceeded to trial”). 18.5.9 Costs where claim has settled: independent act/compromise. {18.5.4} (the M (Croydon) categories); R (M) v Croydon LBC [2012] EWCA Civ 595 [2012] 1 WLR 2607 at §60 (situation “where there has been some compromise which does not actually reflect the claimant’s claims”), §63 (there, “the court is often unable to gauge whether there is a successful party in any respect, and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order as to costs. However, in some cases, it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled”); R (Bahta) v SSHD [2011] EWCA Civ 895 §63 (“There may be cases in which relief may be granted for reasons entirely unconnected with the claim made”); R (Leighton Orient Football Club Ltd) v Newham LBC [2011] EWHC 3047 (Admin) (no order for costs where third party abandonment of project). 269

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18.5.10 Costs where claim has settled: avoiding in-depth consideration. R v Liverpool City Council, ex p Newman (1992) [1998] JR 178, 179 (“It would seldom be the case that on discontinuance this court would think it necessary or appropriate to investigate in depth the substantive merits of what had by then become an academic challenge. That ordinarily would be a gross misuse of this court’s time and further burden its already full list”); R v Independent Television Commission, ex p Church of Scientology [1996] COD 443 (court slow to embark on exercise, particularly in a case of considerable complexity); R (A) v East Sussex County Council [2005] EWHC 585 (Admin) (2005) 8 CCLR 228 at §39 (inappropriate to “delve into the detail”); R v Calderdale Metropolitan Borough Council, ex p Houghton (2000) 3 CCLR 228 (on looking at the papers briefly, Court able to say that application for judicial review was likely to have succeeded); cf R v Greenwich LBC, ex p Lovelace [1991] 1 WLR 506, 517G, 524G (“litigation may sometimes be properly continued for the sole purpose of resolving an issue as to costs when all other matters in dispute have been resolved”). 18.5.11 Costs, early disposal and procedural rigour: defendant breached pre-action protocol. Cf Singh v Public Service Commission [2019] UKPC 18 (costs in favour of claimant appropriate where matter resolved and permission application withdrawn, but defendant had failed to respond to pre-action letter). 18.5.12 Costs, early disposal and procedural rigour: claimant’s late withdrawal. R v Warley Justices, ex p Callis [1994] COD 240 (interested party entitled to costs of preparing to defend judicial review, where claim undermined by post-permission authority but only withdrawn two days before hearing of the judicial review date).

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P19 The claim stage. Judicial review claims are to be made and acknowledged, having been preceded by pre-action correspondence, in the prescribed manner. 19.1 Pre-claim steps 19.2 Making the claim 19.3 Acknowledging the claim

19.1 Pre-claim steps. Before any judicial review claim comes to be filed with the Court, the parties are generally expected to have engaged in prompt and cooperative correspondence. The basic purpose of this is to try and avoid unnecessary litigation, by explaining themselves and reconsidering their positions. The requirement of promptness is not suspended, though what is said and done (including in a ‘shield letter’) can help explain the consequential delay and may support an extension of time if needed later. 19.1.1 Judicial Review Pre-Action Protocol (JR:PAP). Administrative Court: Judicial Review Guide (2020 edition) at §5.2 (the judicial review pre-action protocol); JR:PAP §2 (“This Protocol sets out a code of good practice and contains the steps which parties should generally follow before making a claim for judicial review”), §3 (“The aims of the protocol are to enable parties to prospective claims to – (a) understand and properly identify the issues in dispute in the proposed claim and share information and relevant documents; (b) make informed decisions as to whether and how to proceed; (c) try to settle the dispute without proceedings or reduce the issues in dispute; (d) avoid unnecessary expense and keep down the costs of resolving the dispute; and (e) support the efficient management of proceedings where litigation cannot be avoided”), §7 (“All claimants will need to satisfy themselves whether they should follow the protocol, depending upon the circumstances of the case. Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it in good time before proceedings are issued and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs”). 19.1.2 Importance of pre-action advice. JR:PAP §5 (“Claimants are strongly advised to seek appropriate legal advice as soon as possible when considering proceedings”), §17 (“Claimants are strongly advised to seek appropriate legal advice when considering proceedings which involve an Interested Party and, in particular, before sending the letter before claim to an Interested Party or making a claim”). 19.1.3 ADR/mediation. {10.2}. 19.1.4 Pre-action practice in urgent cases. JR:PAP §6 (“This protocol will not be appropriate in very urgent cases. In this sort of case, a claim should be made immediately. Examples are where directions have been set for the claimant’s removal from the UK or where there is an urgent need for an interim order to compel a public body to act where it has unlawfully refused to do so, such as where a local housing authority fails to secure interim accommodation for a homeless claimant. A letter before claim, and a claim itself, will not stop the implementation of a disputed decision, though a proposed defendant may agree to take no action until its response letter has been provided. In other cases, the claimant may need to apply to the court for an urgent interim order. Even in very urgent cases, it is good practice to alert the defendant by telephone and to send by email (or fax) to the defendant the draft Claim Form which the claimant intends to issue. A claimant is also normally required to notify a defendant when an interim order is being sought”). 19.1.5 Letter Before Claim (LBC). JR:PAP §§14-19 (“14. In good time before making a claim, the claimant should send a letter to the defendant. The purpose of this letter is to

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identify the issues in dispute and establish whether they can be narrowed or litigation can be avoided. 15. Claimants should normally use the suggested standard format for the letter outlined at Annex A. For Immigration, Nationality and Asylum cases, the Home Office has a standardised form which can be used. It can be found online at [address] 16. The letter should contain the date and details of the decision, act or omission being challenged, a clear summary of the facts and the legal basis for the claim. It should also contain the details of any information that the claimant is seeking and an explanation of why this is considered relevant. If the claim is considered to be an Aarhus Convention claim (see Rules 45.41 to 45.44 and Practice Direction 45), the letter should state this clearly and explain the reasons, since specific rules as to costs apply to such claims. If the claim is considered appropriate for allocation to the Planning Court and/or for classification as ‘significant’ within that court, the letter should state this clearly and explain the reasons. 17. The letter should normally contain the details of any person known to the claimant who is an Interested Party. An Interested Party is any person directly affected by the claim. They should be sent a copy of the letter before claim for information. Claimants are strongly advised to seek appropriate legal advice when considering proceedings which involve an Interested Party and, in particular, before sending the letter before claim to an Interested Party or making a claim. 18. A claim should not normally be made until the proposed reply date given in the letter before the claim has passed, unless the circumstances of the case require more immediate action to be taken. The claimant should send the letter before claim in good time so as to enable a response which can then be taken into account before the time limit for issuing the claim expires, unless there are good reasons why this is not possible. 19. Any claimant intending to ask for a protective costs order (an order that the claimant will not be liable for the costs of the defendant or any other party or to limit such liability) should explain the reasons for making the request, including an explanation of the limit of the financial resources available to the claimant in making the claim”), Annex A (model letter before claim; address for sending LBC; specific reference details). 19.1.6 Importance of pre-action correspondence. Singh v Public Service Commission [2019] UKPC 18 at §26 (“compliance with the pre-action protocols plays a significant part in achieving the important objective of avoiding unnecessary legal proceedings, by requiring the parties to identify in advance key aspects of their respective cases, so as to maximise the prospects of a resolution of any underlying dispute before proceedings are commenced”); R v Horsham District Council, ex p Wenman [1995] 1 WLR 680, 709E-F (need to give intended defendant an opportunity to put the matter right), applied in R (Tshikangu) v Newham LBC [2001] EWHC Admin 92 at §24 (“If anything, this statement should be given even greater weight … after the introduction of the CPR”); {18.1.9} (procedural rigour: costs implications of non-compliance with Pre-Action Protocol); R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 [2006] 1 WLR 1260 at §§43, 54 (if JR:PAP followed properly, defendant’s summary grounds can be briefer and Mount Cook costs lower); cf Serco Ltd v Secretary of State for Defence [2019] EWHC 549 (TCC) at §7 (statutory requirement contained in procurement regulations that particulars of alleged breach must appear in preaction correspondence). 19.1.7 Pre-action correspondence: relationship with promptness. JR:PAP §1 (“This Protocol … does not affect the time limit specified by Rule 54.5(1) of the Civil Procedure Rules (CPR), which requires that any claim form in an application for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose. Nor does it affect the shorter time limits specified by Rules 54.5(5) and (6), which set out that a claim form for certain planning judicial reviews must be filed within 6 weeks and the claim form for certain procurement judicial reviews must be filed within 30 days”), §14 (“In good time before making a claim, the claimant should send a letter to the defendant”), §18 (“The claimant should send the letter before claim in good time so as to enable a response which can then be taken into account before the time limit for issuing the claim expires, unless there are good reasons why this is not possible”); {26.3.4} (extension of time: parties’ prior agreement ‘not to take a time point’ (‘shield letter’)). 272

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19.1.8 Pre-action request for information. JR:PAP §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”). 19.1.9 Letter of Response (LOR). JR:PAP §§20-24 (“20. Defendants should normally respond within 14 days using the standard format at Annex B. Failure to do so will be taken into account by the court and sanctions may be imposed unless there are good reasons. Where the claimant is a litigant in person, the defendant should enclose a copy of this Protocol with its letter. 21. Where it is not possible to reply within the proposed time limit, the defendant should send an interim reply and propose a reasonable extension, giving a date by which the defendant expects to respond substantively. Where an extension is sought, reasons should be given and, where required, additional information requested. This will not affect the time limit for making a claim for judicial review nor will it bind the claimant where he or she considers this to be unreasonable. However, where the court considers that a subsequent claim is made prematurely it may impose sanctions. 22. If the claim is being conceded in full, the reply should say so in clear and unambiguous terms. 23. If the claim is being conceded in part or not being conceded at all, the reply should say so in clear and unambiguous terms, and – (a) where appropriate, contain a new decision, clearly identifying what aspects of the claim are being conceded and what are not, or, give a clear timescale within which the new decision will be issued; (b) provide a fuller explanation for the decision, if considered appropriate to do so; (c) address any points of dispute, or explain why they cannot be addressed;(d) enclose any relevant documentation requested by the claimant, or explain why the documents are not being enclosed; (e) where documents cannot be provided within the time scales required, then give a clear timescale for provision. The claimant should avoid making any formal application for the provision of documentation/information during this period unless there are good grounds to show that the timescale proposed is unreasonable; (f) where appropriate, confirm whether or not they will oppose any application for an interim remedy; and (g) if the claimant has stated an intention to ask for a protective costs order, the defendant’s response to this should be explained. If the letter before claim has stated that the claim is an Aarhus Convention claim but the defendant does not accept this, the reply should state this clearly and explain the reasons. If the letter before claim has stated that the claim is suitable for the Planning Court and/or categorisation as ‘significant’ within that court but the defendant does not accept this, the reply should state this clearly and explain the reasons. 24. The response should be sent to all Interested Parties identified by the claimant and contain details of any other persons who the defendant considers are Interested Parties”); Annex B (model LOR); Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 (discussing delay issues in judicial review) at §41 (“the pre-action letter of response allows a respondent or interested party to draw attention to the possibility of any prejudice or detriment. Compliance with pre-action protocols and the Civil Procedure Rules should ensure that in most cases issues of prejudice or detriment to good administration are identified at the outset”). 19.1.10 Pre-claim notification of third parties. Administrative Court: Judicial Review Guide (2020 edition) at §2.2.3.3 (“Interested parties must be included in pre-action correspondence”); JR:PAP §17 (“The [LBC] should normally contain the details of any person known to the claimant who is an Interested Party. An Interested Party is any person directly affected by the claim. They should be sent a copy of the letter before claim for information. Claimants are strongly advised to seek appropriate legal advice when considering proceedings which involve an Interested Party and, in particular, before sending the letter before claim to an Interested Party or making a claim”), §24 (“The [LOR] should be sent to all Interested Parties identified by the claimant and contain details of any other persons who the defendant considers are 273

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Interested Parties”); R (Candlish) v Hastings Borough Council [2005] EWHC 1539 (Admin) [2006] Env LR 278 at §§25, 27 (pre-JR:PAP recognition that claimant’s solicitors should copy third party in on pre-claim correspondence); R v London Docklands Development Corporation, ex p Frost (1997) 73 P & CR 199, 211 (considering situation “where there has been delay and where third party rights may be at risk”); R v Cotswold District Council, ex p Barrington (1998) 75 P & CR 515 (need to inform planning authority and landowner of possibility of judicial review proceedings as soon as first seriously contemplated); R v Essex County Council, ex p Tarmac Roadstone Holdings Ltd [1998] 1 PLR 79, 88D-H (remedy not refused even though delay and failure of notification that proceedings being brought; claimant deciding in good faith that writing letter before claim would have prejudiced ongoing negotiations); R v Leeds City Council, ex p N [1999] ELR 324, 334C (need in education cases to “give early warning as to what is going on”). 19.1.11 Costs: defendant’s pre-action opportunity to avoid costs exposure. R (M) v Croydon LBC [2012] EWCA Civ 595 [2012] 1 WLR 2607 at §55 (Lord Neuberger MR, in the context of explaining why claimant who brings a claim for judicial review and secures the substantive relief sought can expect to recover his costs: “defendants sometimes concede claims in the Administrative Court simply because it is not worth the candle fighting the case, or because the claim is justified on a relatively technical ground”; but “the defendants should make up their mind to concede the claim for such reasons before proceedings are issued. That is one of the main purposes of the [Pre-Action] Protocol, and, if defendants delay considering whether they should concede a claim, that should not be a reason for depriving the claimant of his costs”), §61 (“the defendants should … have settled before the proceedings were issued: that is one of the main points of the pre-action protocols”). 19.1.12 Pre-action correspondence: an opportunity to raise points for substantive consideration. R (C) v Chief Constable of Greater Manchester [2011] EWCA Civ 175 [2011] 2 FLR 383 (enhanced criminal record disclosure to prospective employer) at §12 (Toulson LJ, concluding “that fairness required that [the prospective employee] should be given an opportunity to make representations”), §13 (“When considering how such disputes are handled, it is also right to bear in mind the pre-action protocol for judicial review applications. … [O]ne would expect the pre-action letter to set out the representations which the person would have wished to make, and, unless the Chief Constable considers that they do not merit any consideration at all … at that stage to give consideration to them. All this is part of the modern process for dealing with public law complaints in a way which is just and does not involve unnecessary expense. In other words, I would hope that courts are not going to be burdened with judicial review applications based on a failure of an opportunity to make representations, without the complainant first setting out the concerns and relevant considerations in correspondence and the Chief Constable considering the correspondence”); {36.4.6} (defect cured by reconsideration/further act). 19.1.13 Public funding (legal aid). JR:PAP Annex C (“Notes on public funding for legal costs in judicial review. Public funding for legal costs in judicial review is available from legal professionals and advice agencies which have contracts with the Legal Aid Agency. Funding may be provided for – (a) Legal Help to provide initial advice and assistance with any legal problem; or (b) Legal Representation to allow you to be represented in court if you are taking or defending court proceedings. This is available in two forms – (i) Investigative Help is limited to funding to investigate the strength of the proposed claim. It includes the issue and conduct of proceedings only so far as is necessary to obtain disclosure of relevant information or to protect the client’s position in relation to any urgent hearing or time limit for the issue of proceedings. This includes the work necessary to write a letter before claim to the body potentially under challenge, setting out the grounds of challenge, and giving that body a reasonable opportunity, typically 14 days, in which to respond. (ii) Full Representation is provided to represent you in legal proceedings and includes litigation services, advocacy services, and all such help as is usually given by a person providing representation in proceedings, including steps preliminary or incidental to proceedings, and/or arriving at or giving effect to a compromise to avoid or bring to an end any proceedings. Except in 274

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emergency cases, a proper letter before claim must be sent and the other side must be given an opportunity to respond before Full Representation is granted. Further information on the type(s) of help available and the criteria for receiving that help may be found in the Legal Aid Agency’s pages on the Ministry of Justice website at [address]. A list of contracted firms and Advice Agencies may be found at [address]”.

19.2 Making the claim. Starting a judicial review claim involves filing with the Administrative Court Office (ACO) the claim form (Form N461), with a statement of judicial review grounds (JRG), incorporating (or accompanied by) a statement of relevant facts. In an urgent case, Form N463 is used (with a draft order if interim relief is sought). Claim documents should be included within a rule-compliant bundle of documents. A fee is payable (unless remitted). The bundle also needs to contain: (1) a list of essential reading; (2) any written evidence in support; (3) relevant documents; and (4) key legislative material. The materials must comply with the claimant’s duty of candour. There must then be (certified) service on the defendant(s) and on anyone identified as a directly affected interested party. 19.2.1 Remission of fees. Administrative Court: Judicial Review Guide (2020 edition) at §1.5.2. 19.2.2 Litigants in person. Administrative Court: Judicial Review Guide (2020 edition) at §1.5.4 (“A litigant in person will be expected to comply with the requirements to use the right form and to pay fees, just like a represented litigant”), §3 (litigants in person), §3.6 (McKenzie Friends, referring to Practice Direction (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881). 19.2.3 Calculating time limits. Administrative Court: Judicial Review Guide (2020 edition) at §1.6. 19.2.4 Commencing the claim. Administrative Court: Judicial Review Guide (2020 edition) at §6.2 (filing the claim form), §6.6 (where to file the claim: appropriate venue); South Derbyshire District Council v Secretary of State for Housing [2020] EWHC 872 (Admin) [2020] PTSR 1120 at §22 (planning judicial review claim “made” for the purposes of Town and Country Planning Act 1990 s.288 when claim form filed with the Court); R (Kemp) v Denbighshire Local Health Board [2006] EWHC 181 (Admin) [2007] 1 WLR 639 at §91 (claim for judicial review “instituted”, for purposes of Senior Courts Act 1981 s.35A, when lodged): {26.2.2} (stopping the clock); {22.4.4} (venue: regionalisation). 19.2.5 The claimant. Administrative Court: Judicial Review Guide (2020 edition) at §2.2.1 (claimant), §2.3 (multiple claimants). 19.2.6 Claimant’s duty of candour. {10.3} 19.2.7 Time for commencing the claim: the general rules. {P26} (delay); Senior Courts Act 1981 s.31(6)-(7) (“(6)Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant – (a) [permission] for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made”); CPR 54.5(1)-(3) (“The claim form must be filed – (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose. (2) The time limits in this rule may not be extended by agreement between the parties. (3) This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review”). 19.2.8 Time for filing and serving the claim in planning cases: six weeks. CPR 54.5(4)-(5) (“(4) Paragraph (1) does not apply in the cases specified in paragraph[] (5) … (5) Where 275

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the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose”); R (Coventry Gliding Club Ltd) v Harborough District Council [2019] EWHC 3059 (Admin) at §24 (decision “under the planning acts”), §27 (extension of time of making claim granted under CPR 3.1(2)(a)); South Derbyshire District Council v Secretary of State for Housing [2020] EWHC 872 (Admin) [2020] PTSR 1120 at §§9, 25-26 (where six weeks prescribed as absolute by planning statute, no jurisdiction to entertain where claim made outside six weeks), §28 (claim made within six weeks), §§31-32 (extension of time for service of claim granted where reasonable steps and no prejudice). 19.2.9 Claim form (Form N461): prescribed contents. CPR 8.2 (“the claim form must state – (a) that this Part applies; (b) (i) the question which the claimant wants the court to decide; or (ii) the remedy which the claimant is seeking and the legal basis for the claim to that remedy; (c) if the claim is being made under an enactment, what that enactment is; (d) if the claimant is claiming in a representative capacity, what that capacity is; and (e) if the defendant is sued in a representative capacity, what that capacity is”); CPR 8.5(7) (“The claimant may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth”); CPR 54.6(1) (“(1) In addition to the matters set out in rule 8.2 … the claimant must also state – (a) the name and address of any person he considers to be an interested party; (b) that he is requesting permission to proceed with a claim for judicial review; and (c) any remedy (including any interim remedy) he is claiming; and (d) where appropriate, the grounds on which it is contended that the claim is an Aarhus Convention claim”); CPR PD54A §§5.1-5.3, 5.6 (“Interested parties. 5.1 Where the claim for judicial review relates to proceedings in a court or tribunal, any other parties to those proceedings must be named in the claim form as interested parties under rule 54.6(1)(a) (and therefore served with the claim form under rule 54.7(b)). 5.2 For example, in a claim by a defendant in a criminal case in the Magistrates or Crown Court for judicial review of a decision in that case, the prosecution must always be named as an interested party. Human rights. 5.3 Where the claimant is seeking to raise any issue under the Human Rights Act 1998, or seeks a remedy available under that Act, the claim form must include the information required by paragraph 15 of Practice Direction 16 … 5.6 The claim form must include or be accompanied by – (1) a detailed statement of the claimant’s grounds for bringing the claim for judicial review; (2) a statement of the facts relied on; (3) any application to extend the time limit for filing the claim form; (4) any application for directions”); Administrative Court: Judicial Review Guide (2020 edition) at §15.4.2 (interim relief can be requested in the claim form), §15.7 (interim relief when claim filed). 19.2.10 HRA claim: prescribed contents. CPR 16PD §15.1 (“A party who seeks to rely on any provision of or right arising under the Human Rights Act 1998 or seeks a remedy available under that Act – (1) must state that fact in his statement of case; and (2) must in his statement of case – (a) give precise details of the Convention right which it is alleged has been infringed and details of the alleged infringement; (b) specify the relief sought; (c) state if the relief sought includes – (i) a declaration of incompatibility in accordance with section 4 of that Act, or (ii) damages in respect of a judicial act to which section 9(3) of that Act applies; (d) where the relief sought includes a declaration of incompatibility in accordance with section 4 of that Act, give precise details of the legislative provision alleged to be incompatible and details of the alleged incompatibility; (e) where the claim is founded on a finding of unlawfulness by another court or tribunal, give details of the finding; and (f) where the claim is founded on a judicial act which is alleged to have infringed a Convention right of the party as provided by section 9 of the Human Rights Act 1998, the judicial act complained of and the court or tribunal which is alleged to have made it”). 19.2.11 Procedural rigour: HRA damages claims. Administrative Court: Judicial Review Guide (2020 edition) at §6.3.1.2 (“Where the claim includes a claim for damages under the Human Rights Act 1998, the claim for damages must be properly pleaded and particularised”,

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referring to R (Fayad) v SSHD [2018] EWCA Civ 54), §11.9.2.3; {25.1.7} (procedural rigour: properly pleading money claims). 19.2.12 Cart claim: modified procedure. {2.3} (Cart claims); {2.3.2} (Cart claim: modified procedure). 19.2.13 Claim form: statement of truth. CPR 8.2 (“Part 22 provides for the claim form to be verified by a statement of truth”); CPR 22.1(1)(a) (“The following documents must be verified by a statement of truth – (a) a statement of case”); CPR 8.5(7) (“The claimant may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth”); R (Jetly) v SSHD [2019] EWHC 204 (Admin) at §5 (absent a statement of truth verifying factual content, judicial review claim form can be struck out under CPR 22.2(1)). 19.2.14 Claim bundle: prescribed contents. CPR 54.6(2) (“(2) The claim form must be accompanied by the documents required by Practice Direction 54A”); CPR PD54A §§5.7-5.10 (“5.7 In addition, the claim form must be accompanied by (1) any written evidence in support of the claim or application to extend time; (2) a copy of any order that the claimant seeks to have quashed; (3) where the claim for judicial review relates to a decision of a court or tribunal, an approved copy of the reasons for reaching that decision; (4) copies of any documents on which the claimant proposes to rely; (5) copies of any relevant statutory material; and (6) a list of essential documents for advance reading by the court (with page references to the passages relied on). 5.8 Where it is not possible to file all the above documents, the claimant must indicate which documents have not been filed and the reasons why they are not currently available. Bundle of documents. 5.9 The claimant must file one copy of a paginated and indexed bundle containing all the documents referred to in paragraphs 5.6 and 5.7 unless the case is to be heard before a Divisional Court. For Divisional Court cases the number of bundles required will be one set for each judge hearing the case. 5.10 Attention is drawn to rules 8.5(1) and 8.5(7)”); CPR 8.5(1), (7) (“(1) The claimant must file any written evidence on which he intends to rely when he files his claim form … (7) The claimant may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth”); CPR 16PD §15 (requirements for statement of case in HRA claim); Administrative Court: Judicial Review Guide (2020 edition) at §§6.3.1 (required documents), 6.3.2 (paginated bundle), §6.3.7 (application needed to file missing documents out of time). 19.2.15 Challenging immigration removals: additional prescribed requirements. CPR PD54A Section II (“Applications for permission to apply for judicial review in immigration and asylum cases – challenging removal”), §§18.1-18.2 (“18.1(1) This Section applies where – (a) a person has been served with a copy of directions for his removal from the United Kingdom by the UK Border Agency of the Home Office and notified that this Section applies; and (b) that person makes an application for permission to apply for judicial review before his removal takes effect. (2) This Section does not prevent a person from applying for judicial review after he has been removed. (3) The requirements contained in this Section of this Practice Direction are additional to those contained elsewhere in the Practice Direction. 18.2 (1) A person who makes an application for permission to apply for judicial review must file a claim form and a copy at court, and the claim form must – (a) indicate on its face that this Section of the Practice Direction applies; and (b) be accompanied by – (i) a copy of the removal directions and the decision to which the application relates; and (ii) any document served with the removal directions including any document which contains the UK Border Agency’s factual summary of the case; and (c) contain or be accompanied by the detailed statement of the claimant’s grounds for bringing the claim for judicial review; or (d) if the claimant is unable to comply with paragraph (b) or (c), contain or be accompanied by a statement of the reasons why. (2) The claimant must, immediately upon issue of the claim, send copies of the issued claim form and accompanying documents to the address specified by the UK Border Agency. (Rule 54.7 also requires the defendant to be served with the claim form within 7 days of the date of issue. Rule 6.10 provides that service on a Government Department must be effected on the solicitor acting for that Department, which in the case of 277

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the UK Border Agency is the Treasury Solicitor. The address for the Treasury Solicitor may be found in the Annex to Part 66 of these Rules.)”). 19.2.16 Identifying the defendant/co-defendant. Administrative Court: Judicial Review Guide (2020 edition) at §2.2.2 (defendant), §2.3 (multiple defendants), Annex 3 (addresses for service of Central Government Departments); {9.1.22} (HRA and proper defendant); R v SSHD, ex p Pierson [1998] AC 539, 544G-H (Secretary of State “named as [defendant] only because responsible for department within which decisions taken”); Bahamas Hotel Maintenance & Allied Workers v Bahamas Hotel Catering & Allied Workers [2011] UKPC 4 at §35 (“Judicial review is directed to official decision-making, and the official who took the relevant decision is the natural respondent to such proceedings”), §36 (Attorney-General “should not have been made a party”); Attorney-General of Trinidad and Tobago v AyersCaesar [2019] UKPC 2 at §22-23 (President a proper second defendant, albeit not having made a reviewable decision, because declaration sought concerned the position between claimant and the President). 19.2.17 Procedural rigour: application to rely on expert evidence when filing claim. {17.6.4} (procedural rigour: seeking to rely on expert evidence in judicial review); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §44 (claimant wishing to rely on expert evidence should include application and proposed directions at the earliest opportunity). 19.2.18 Claim form should include any costs capping order application. R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2712 (Admin) at §7 (desirable for claim form to contain notice of any application for a pre-emptive costs order); CPR 54.6(1) (“(1) In addition to the matters set out in rule 8.2 (contents of the claim form) the claimant must also state – … (d) where appropriate, the grounds on which it is contended that the claim is an Aarhus Convention claim. (Rules 45.41 to 45.44 make provision about costs in Aarhus Convention claims.)”). 19.2.19 Judicial review grounds (JRG): statement of facts and grounds. Administrative Court: Judicial Review Guide (2020 edition) at §6.3.1.1 (“[The] detailed statement of the claimant’s grounds for bringing the claim for judicial review (which can be outlined in section 5 of the Claim Form or in an attached document) … should be as concise as reasonably possible, while setting out the claimant’s arguments. The grounds must be stated shortly and numbered in sequence. Each ground should raise a distinct issue in relation to the decision under challenge. Arguments and submissions in support of the grounds should be set out separately in relation to each ground”); R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297 at §25 (Coulson LJ: “The statement of facts and grounds … is the document which sets out the detailed basis for the applicant’s challenge”); R v Vale of Glamorgan Borough Council, ex p James [1996] Env LR 102, 109 (grounds for judicial review “serves to direct the parties’ minds to the issues which are alleged to arise and thereby concentrate their mind on the evidence to deal with those particular issues”). 19.2.20 Procedural rigour: need for precision and particularity in the JRG. Fishermen and Friends of the Sea v Environmental Management Authority [2018] UKPC 24 [2018] PTSR 1979 at §51 (“the case need[s] to be formulated with precision in the original grounds”); R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860 [2018] 1 WLR 5161 at §37 (CA urging a “straightforward approach to the drafting of grounds in claims for judicial review”); R (Brookes) v Secretary of State for Work and Pensions [2010] EWCA Civ 420 [2010] 1 WLR 2448 at §4 (Hughes LJ: “Both the decision and the alleged error must be identified with particularity”); Somerville v Scottish Ministers [2007] UKHL 44 [2007] 1 WLR 2734 (discussing Scottish judicial review procedure) at §65 (“The factual history should be set out succinctly and the issues of law should be clearly identified”); R (Hargrave) v Stroud District Council [2002] EWCA Civ 1281 [2002] 3 PLR 115 at §40 (irrationality ground “needs to be taken early and in detail, and not left to be expanded in this court”); {22.1.24} (procedural rigour: amendment of claimant’s JRG); {23.2.8} (procedural 278

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rigour/flexibility: amendment of JRG in appellate court); {3.2.2} (procedural flexibility: permission for claimant/amendment of grounds of claim). 19.2.21 Procedural rigour: need for focus and realism in the JRG. R (Naing) v Immigration Appeal Tribunal [2003] EWHC 771 (Admin) at §59 (Davis J: “the overloading of a case with hopeless points simply operates potentially to devalue points which otherwise might be made to appear arguable”); R (P) v Essex County Council [2004] EWHC 2027 (Admin) at §31 (Munby J, lamenting those welfare cases where “inadequate thought is given to what precisely the court is being asked or can properly be asked to do”), §34 (“It is elementary that it is for the claimant to set out what his case is and then to adduce the necessary evidence in support”); cf Ashmore v Corporation of Lloyds [1992] 1 WLR 446, 453H (Lord Templeman: “It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of 10 bad points the judge will be capable of fashioning a winner. … [T]here has been a tendency in some cases for legal advisers, pressed by their clients, to make every point conceivable and inconceivable without judgment or discrimination”). 19.2.22 Interested parties. Administrative Court: Judicial Review Guide (2020 edition) at §2.2.3 (interested parties), §2.2.3.3 (“Interested parties must be … named in the Claim Form. Interested parties must also be served with the Claim Form, as required by CPR 54.7(b)”); {22.2.1} (interested party: person directly affected). 19.2.23 Serving the claim form. Administrative Court: Judicial Review Guide (2020 edition) at §6.8 (serving the claim form); CPR 54.7 (“The claim form must be served on – (a) the defendant; and (b) unless the court otherwise directs, any person the claimant considers to be an interested party, within 7 days after the date of issue”); CPR 6.10 (“Service of the claim form in proceedings against the Crown. In proceedings against the Crown – (a) service on the Attorney General must be effected on the Treasury Solicitor; and (b) service on a government department must be effected on the solicitor acting for that department. (Practice Direction 66 gives the list published under section 17 of the Crown Proceedings Act 1947 of the solicitors acting in civil proceedings (as defined in that Act) for the different government departments on whom service is to be effected, and of their addresses.)”); CPR PD54A §6.1 (“6.1 Except as required by rules 54.11 or 54.12(2), the Administrative Court will not serve documents and service must be effected by the parties”), §6.2 (addresses for service); {2.3.6} (Cart claim: service of the claim). The certificate of service is Form N215. R (Certain Underwriters at Lloyds London) v HM Treasury [2020] EWHC 2189 (Admin) at §25 (difficulties with service of interested parties resolved by order dispensing with service on them). 19.2.24 Service of the claim form: immigration removal cases. CPR PD54A Section II (“Applications for permission to apply for judicial review in immigration and asylum cases – challenging removal”), §§18.2(2) (“The claimant must, immediately upon issue of the claim, send copies of the issued claim form and accompanying documents to the address specified by the UK Border Agency. (Rule 54.7 also requires the defendant to be served with the claim form within 7 days of the date of issue. Rule 6.10 provides that service on a Government Department must be effected on the solicitor acting for that Department, which in the case of the UK Border Agency is the Treasury Solicitor. The address for the Treasury Solicitor may be found in the Annex to Part 66 of these Rules.)”). 19.2.25 Urgent Cases Procedure (Form N463). Administrative Court: Judicial Review Guide (2020 edition) at §13.2.2, Annex 4 Part 1 §§1-9 (listing policy: urgent/interim applications), §15 (urgent cases and applications for interim relief), §15.2 (applications for urgent consideration of judicial review claims), §15.3 (out of hours applications); Practice Statement (Administrative Court: Listing and Urgent Cases) [2002] 1 WLR 810; R (DPP) v Camberwell Youth Court [2004] EWHC 1805 (Admin) [2005] 1 WLR 810 (appropriateness of judicial review with N463 in youth court jurisdiction cases); R (Shergill) v Harrow Crown Court [2005] EWHC 648 (Admin) at §2 (judicial review of Crown Court refusal of bail should dealt with at an urgent oral hearing, normally within 48 hours, on notice to the Crown Court and prosecuting authority); R (BG) v Medway Council [2005] EWHC 1932 (Admin) 279

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[2006] 1 FLR 663 at §40 (in an urgent case, better to abridge time for AOS rather than deny defendant the opportunity to make representations regarding permission); {19.3.4} (urgent cases: timing of the AOS}; {21.5.17} (directions for expedition/abridgement). 19.2.26 Inappropriateness of a protectively issued claim, seeking a stay. R (Archer) v HMRC [2019] EWCA Civ 1021 [2019] 1 WLR 6355 (position where claimant having an alternative remedy but concerned about delay objection being raised) at §93 (Henderson LJ: “it is not a satisfactory solution … to initiate judicial review proceedings … and then ask for them to be stayed (either by agreement or court order) until the … procedure has been completed”; “judicial review proceedings should not be begun on a precautionary basis, and then stayed, but … should be held in reserve as a true remedy of last resort”); R (RafiqueAldawery) v St George’s, University of London [2018] EWCA Civ 2520 [2019] PTSR 658 (concerns about encouraging protectively commenced judicial review claims, stayed pending pursuit of alternative remedy); {26.3.4} (extension of time: parties’ prior agreement ‘not to take a time point’ (‘shield letter’)); cf R (Cityhook Ltd) v Office of Fair Trading [2009] EWHC 57 (Admin) at §3 (stay of “protective” judicial review, pending appeal to CAT where unclear whether CAT had jurisdiction). 19.2.27 Public access to documents from the court records. CPR 5.4C; Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629; R (British American Tobacco (UK) Ltd) v Secretary of State for Health [2018] EWHC 3586 (Admin) [2019] ACD 34. 19.2.28 Claim transferred into the Administrative Court as judicial review. CPR 30 (transfer); CPR 54.20 (“(Part 30 (transfer) applies to transfers to … the Administrative Court)”); CPR 54.4 (“The court’s permission to proceed is required in a claim for judicial review … transferred to the Administrative Court”); CPR PD54A §14.2 (“In deciding whether a claim is suitable for transfer to the Administrative Court, the court will consider whether it raises issues of public law to which Part 54 should apply”); CPR 87.5(4)(d) (“the judge may – … (d) direct that the application [for habeas corpus] continues as an application for permission to apply for judicial review”); James v Hertsmere Borough Council [2020] EWCA Civ 489 at §32 (county court could transfer to the High Court, reconstituted as Administrative Court, if issue of general public importance arising in homelessness appeal); Jane v Westminster Magistrates’ Court [2019] EWHC 394 (Admin) [2019] 4 WLR 95 at §45 (application for habeas corpus treated as claim judicial review, applying CPR 87.5(d)); R (Governor of HMP Wandsworth) v Kinderis [2007] EWHC 998 (Admin) [2008] QB 347 at §1 (prisoner governor’s claim to establish which of two inconsistent orders applicable, transferred to the Admin Court); Independent Committee for the Supervision of Standards of Telephone Information Services v Andronikou [2007] EWHC 2307 (Admin) (application in the Companies Court transferred, with the consent of the parties, to the Admin Court); Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840, 848H-849B (“in cases where it is unclear whether proceedings have been correctly brought by an ordinary action it should be remembered that … a case can always be transferred to the [Administrative Court] as an alternative to being struck out”); Attorney General of Trinidad and Tobago v Dumas [2017] UKPC 12 [2017] 1 WLR 1978 at §26 (court could “exercise … case management powers to convert this application into one for judicial review”). (Historically there was no power of transfer in: O’Reilly v Mackman [1983] 2 AC 237, 284A-B (“There is no … power under the RSC to permit an action begun by writ to continue as if it were an application for judicial review”); Davy v Spelthorne Borough Council [1984] AC 262, 274G.)

19.3 Acknowledging the claim. Defendants and interested parties served with the claim form have (unless time is abridged) 21 days to file an Acknowledgment of Service (AOS: Form N462), accompanied by a statement of truth and any summary grounds of resistance (SGR) and any accompanying documents. The AOS/SGR should assist the judge dealing with permission for judicial review (PJR) by: (1) stating whether PJR is resisted or (a course underused) unopposed; (2) if PJR is resisted (a) complying with the duty of candour and (b) articulating the suggested basis for refusing PJR; and in any event (3) identifying appropriate case-management directions (if PJR is granted or a rolled-up 280

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hearing ordered); (4) including any application for costs. The claimant can properly ask the Court to take into account a reply document (which should be prompt, succinct and a true reply). 19.3.1 Acknowledgment of service (Form N462) (AOS): the rules. CPR 54.8 (“(1) Any person served with the claim form who wishes to take part in the judicial review must file an acknowledgment of service in the relevant practice form in accordance with the following provisions of this rule. (2) Any acknowledgment of service must be – (a) filed not more than 21 days after service of the claim form; and (b) served on – (i) the claimant; and (ii) subject to any direction under rule 54.7(b), any other person named in the claim form, as soon as practicable and, in any event, not later than 7 days after it is filed. (3) The time limits under this rule may not be extended by agreement between the parties. (4) The acknowledgment of service – (a) must – (i) where the person filing it intends to contest the claim, set out a summary of his grounds for doing so; and (ia) where the person filing it intends to contest the application for permission on the basis that it is highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred, set out a summary of the grounds for doing so; and (ii) state the name and address of any person the person filing it considers to be an interested party; and (b) may include or be accompanied by an application for directions. (5) Rule 10.3(2) does not apply. (Section 31(3C) of the Senior Courts Act 1981(1) requires the court, where it is asked to do so by the defendant, to consider whether the outcome for the claimant would have been substantially different if the conduct complained of had not occurred.)”); {2.3.7} (Cart claim: AOS); Administrative Court: Judicial Review Guide (2020 edition) at §7.1 (the AOS), §7.2 (time for filing the AOS), §7.3 (contents). 19.3.2 AOS/SGR: statement of truth. CPR 22.1(1)(d) (“The following documents must be verified by a statement of truth – … (d) an acknowledgement of service in a claim begun by way of the Part 8 procedure”). 19.3.3 Conceding arguability/permission unopposed. R (K (A Child)) v SSHD [2018] EWHC 1834 (Admin) [2018] 1 WLR 6000 at §105 (Helen Mountfield QC: “Where a case is obviously arguable, albeit the defendant thinks it is wrong, what should be pleaded is that the defendant accepts that the point is arguable, though the defendant does not think it is right”); {21.1.5} (cooperation: permission unopposed by defendant/interested party). 19.3.4 Urgent cases: timing of the AOS/permission and interim relief. R (Webb) v Bristol City Council [2001] EWHC Admin 696 (permission should not have been granted while defendant’s acknowledgment was awaited and time-limit unexpired; if interim remedy was urgent, it should have been granted pre-permission); R (BG) v Medway Council [2005] EWHC 1932 (Admin) [2006] 1 FLR 663 at §40 (in urgent case, better to abridge time for AOS rather than deny defendant the opportunity to make representations regarding permission); R (Aamer) v Secretary of State for Foreign Affairs [2009] EWHC 3316 (Admin) at §22 (Court abridging time for AOS to 7 days), §25 (Court revoking the abridgement of time, in light of letter from Treasury Solicitor); {19.2.25} (urgent cases procedure). 19.3.5 Application for an extension of time for AOS. Administrative Court: Judicial Review Guide (2020 edition) at §7.2.2 (“The parties cannot agree between themselves to extend the time for filing; that can only be extended by an order of the Court. An application for an extension of time must be made in accordance with the interim applications procedure and on payment of the relevant fee (see paragraph 12.7 of this Guide). Alternatively, the application can be made retrospectively in the Acknowledgment of Service in section D, provided the decision on the application for permission to apply for judicial review has not already been made”). 19.3.6 Failure to file AOS: the rules. CPR 54.9 (“(1) Where a person served with the claim form has failed to file an acknowledgment of service in accordance with rule 54.8, he – (a) may not take part in a hearing to decide whether permission should be given unless the court allows him to do so; but (b) provided he complies with rule 54.14 or any other direction 281

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of the court regarding the filing and service of – (i) detailed grounds for contesting the claim or supporting it on additional grounds; and (ii) any written evidence, may take part in the hearing of the judicial review. (2) Where that person takes part in the hearing of the judicial review, the court may take his failure to file an acknowledgment of service into account when deciding what order to make about costs. (3) Rule 8.4 does not apply”) (CPR 8.4 is the rule which provides that a defendant who has failed to file an AOS “may attend the hearing of the claim but may not take part in the hearing unless the court gives permission”); Administrative Court: Judicial Review Guide (2020 edition) at §7.1.4. 19.3.7 Procedural flexibility: failure to file an AOS. R (Matthias Rath BV) v Advertising Standards Authority Ltd [2001] HRLR 436 (court allowing evidence lodged by defendant to count as acknowledgment); R (A) v National Asylum Support Service [2003] EWHC 1402 (Admin) at §13 (Secretary of State permitted to participate despite absence of detailed grounds, or earlier summary grounds, because no prejudice and in the interests of justice to receive informed submissions) (CA is [2003] EWCA Civ 1473 [2004] 1 WLR 752). 19.3.8 Function and purpose of the AOS/SGR. Administrative Court: Judicial Review Guide (2020 edition) at §7.3.4 (“The essential purpose of the Acknowledgement of Service (and in particular the summary grounds of defence) is to assist the Court in deciding whether permission to apply for judicial review should be granted and, if so, on what terms. Defendants and interested parties can assist the court, in appropriate cases, by stating in their Acknowledgment of Service that permission is not opposed”); CPR 54.8(4)(a)(i) (AOS “must, where the person filing it intends to contest the claim, set out a summary of his grounds for doing so”); R (Ministry of Defence) v Wiltshire & Swindon Coroner [2005] EWHC 889 (Admin) [2006] 1 WLR 134 at §44 (Collins J: “The purpose of an Acknowledgment of Service, whatever the CPR may say, is to assist the court in deciding whether permission should be granted or not”); R (Wilson) v Prime Minister [2019] EWCA Civ 304 [2019] 1 WLR 4174 at §68 (Hickinbottom LJ: “the part played by a defendant … at [the permission] stage is restricted. The relevant public body may … file an acknowledgment of service with short summary grounds of resistance; but, to do so, it should generally not be necessary for it to do much additional work. … [I]ts proper course is to explain its decision and any further grounds of opposition in short form”); R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297 at §24 (“In judicial review claims, the AOS tends to include a detailed response to the statement of facts and grounds”); R (Khan) v SSHD [2016] EWCA Civ 416 at §35 (aims of AOS process “to enable the court to give fuller consideration to the merits of an application and, by encouraging the respondent to review its decisions at an early stage, encourage earlier settlement of cases”), §44 (“The introduction of the [AOS] in applications for judicial review resulted in real benefits to the process”); R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §71 (“The objects of the obligation on a defendant to file an acknowledgment of service setting out where appropriate his case are: (1) to assist claimants with a speedy and relatively inexpensive determination by the court of the arguability of their claims; and (2) to prompt defendants – public authorities – to give early consideration to and, where appropriate, to fulfil their public duties”); R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §97 (Beatson LJ: “The purpose of [the AOS is] to enable the court and the claimant to know the position of the Secretary of State. In the court’s case, this is to assist it before it considers whether to grant permission. In the claimant’s case, it is because of the duty of a party to judicial review proceedings to reconsider the claim in the light of any defence”). 19.3.9 AOS may be accompanied by evidence. Administrative Court: Judicial Review Guide (2020 edition) at §7.3.2 (“Evidence may be filed with the Acknowledgment of Service but it is not required”); {10.4.8} (defendant candour at/prior to the permission stage). 19.3.10 Procedural rigour: the AOS/SGR. R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 [2006] 1 WLR 1260 at §43 (“The purpose of the ‘summary of grounds’ is not to provide the basis for full argument of the substantive merits, but rather … to assist the judge in deciding whether to grant permission, and if so on what terms”; “it may be appropriate simply to refer to [pre-action] letter”; “helpful to draw attention to any 282

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‘knock-out points’ or procedural bars, or the practical or financial consequences for other parties (which may, for example, be relevant to directions for expedition)”); R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166 [2008] 1 WLR 878 at §13 (where permission contested, proper course is generally “to explain its decision and any further grounds of opposition in short form” and wait and see whether permission granted), §32 (function of assisting judge as to grant of permission and terms), §33 (court should decline to look at anything going further), §33 (costs of AOS should be limited to proper function of the AOS). 19.3.11 Defendant/interested party’s duty of candour at the permission stage. {10.4.8} (defendant candour at/prior to the permission stage); {10.4.11} (interested parties also owing a duty of candour). 19.3.12 AOS: addressing permission-stage points. R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 [2006] 1 WLR 1260 at §43 (“helpful to draw attention to any ‘knock-out points’ or procedural bars”); {26.1.15} (delay issues at the permission stage); {26.1.16} (delay at the permission stage: opportunity for defendant/interested party); {36.3.12} (alternative remedy as a permission-stage issue). 19.3.13 AOS: include permission-costs application. R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 [2006] 1 WLR 1260 at §47 (need to include any Mount Cook costs application and schedule with AOS); Administrative Court: Judicial Review Guide (2020 edition) at §23.4.2 (“Where a defendant or interested party wishes to seek costs at the permission stage (if permission to apply for judicial review is refused), the Acknowledgement of Service should include an application for costs and should be accompanied by a schedule setting out the amount claimed (limited to the costs incurred by reason of the preparation of the Acknowledgment of Service and the Summary Grounds of Defence”). 19.3.14 AOS: asking permission judge to address HL:NSD duty. Administrative Court: Judicial Review Guide (2020 edition) at §7.3.1.2; Senior Courts Act 1981 s.31(3C)(b) (“When considering whether to grant [permission] to make an application for judicial review, the High Court – … (b) must consider th[e] question [whether the outcome for the [claimant] would have been substantially different if the conduct complained of had not occurred] 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]”); CPR 54.8(4)(a)(ia) (“The acknowledgment of service – (a) must – … (ia) where the person filing it intends to contest the application for permission on the basis that it is highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred, set out a summary of the grounds for doing so”); {4.1.2} (HL:NSD test at the permission stage). 19.3.15 AOS: non-appearing defendant. {10.4.3} (defendant’s duty of candour: nonappearing defendant). 19.3.16 AOS: claim not contested. Administrative Court: Judicial Review Guide (2020 edition) at §7.3.3 (“If the party does not intend to contest the claim, it should make it clear in section C of the Acknowledgment of Service whether it intends to remain neutral or would in principle agree to the decision being quashed. This information will allow the Court to manage the claim properly. If the party does agree in principle to the decision being quashed, then the parties should attempt to agree settlement of the claim at the earliest opportunity”). 19.3.17 Candour and cooperation: AOS of court defendant in challenge to case stated refusal. R (Guinee) v Merthyr Tydfil Crown Court [2011] EWHC 2052 (Admin) at §§19, 34 (where claim for judicial review of refusal to state a case, defendant-court should provide copy of the reasons with the AOS, to the claimant and the Admin Court, even where not making a submission in the judicial review proceedings). 19.3.18 AOS: include application for directions. CPR 54.8(4)(b) (“(4) The acknowledgment of service – … (b) may include or be accompanied by an application for directions”); 283

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R (A (A Child)) v Chief Constable of Dorset Police [2010] EWHC 1748 (Admin) [2011] 1 FLR 11 (interested party obtaining directions to protect sensitive information from disclosure by defendant to claimant); Administrative Court: Judicial Review Guide (2020 edition) at §7.4 (“When lodging the Acknowledgment of Service, the party may request further directions or an interim order from the Court in section D. Examples of applications that may be made at this stage are for the party’s costs of preparing the acknowledgment of service and for the discharge of any previously made injunctions”). 19.3.19 Claimant’s duty to re-evaluate after AOS. R (Khan) v SSHD [2016] EWCA Civ 416 at §48 (claimant’s “duty of candour … 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”); Administrative Court: Judicial Review Guide (2020 edition) at §14.1.7 (“a claimant must reassess the viability and propriety of a challenge in light of the defendant’s Acknowledgement of Service and summary grounds”); {22.1.8} (procedural rigour: claimant’s duty of re-evaluation if circumstances change). 19.3.20 Claimant’s permission stage reply. R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin) at §80 (Lang J, explaining that no provision in the rules for claimant to respond to AOS), §81 (“Since the claimant was not entitled to file a Reply or any other response to the Summary Grounds of Defence, it [is] a matter for the discretion of the permission Judge whether to have any regard to [such a] document”); R (Bokrosova) v Lambeth LBC [2015] EWHC 3386 (Admin) [2016] PTSR 355 at §92 (“The claimant replied to the summary grounds”); Aaron v Law Society [2003] EWHC 2271 (Admin) at §75 (as to “communications relevant to their consideration by the Judge, an applicant must, and is entitled to, depend upon their transmission by court staff to the Judge”, since the “documents, by their very nature, should have alerted any reasonably experienced and diligent court officer responsible for the file of the need for their inclusion in the papers placed before the Judge”); Administrative Court: Judicial Review Guide (2020 edition) at §7.2.5 (“The judicial review procedure does not make provision for the claimant to respond to the Acknowledgment of Service during the paper application process. Replies are rarely if ever necessary and are not encouraged. The ACO will not delay consideration of permission on the basis that the claimant may wish to reply. Any reply that is received before a case is sent to a judge to consider permission will be put before the judge, but it is a matter for the judge as to whether she is willing to consider the document”).

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P20 Interim relief. The judicial review Court has wide powers to make interim orders, securing a particular position pending substantive resolution of the claim. 20.1 Interim remedies in judicial review 20.2 Court’s approach to interim relief

20.1 Interim remedies in judicial review.54 Judges have wide and flexible powers to make interim orders securing a specified position, where justice so requires, pending the final disposal of the judicial review claim. 20.1.1 Interim remedies: key provisions. Senior Courts Act 1981 s.37(1) (“The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so”), s.37(2) (“Any such order may be made either unconditionally or on such terms and conditions as the court thinks just”); CPR 54.6(1)(c) (“Claim form … [T]he claimant must … state – … (c) any remedy (including any interim remedy) he is claiming”); CPR 25 and CPR 25PD (interim remedies and security for costs); CPR 54.10(1)-(2) (“(1) Where permission to proceed is given the court may also give directions. (2) Directions under paragraph (1) may include (a) a stay of proceedings to which the claim relates”). Administrative Court: Judicial Review Guide (2020 edition) at §13.2.2, §15 (urgent applications and interim relief), §15.9 (challenging a decision on an application for interim relief); Annex 4 Part 1 §§1-9 (listing policy: urgent/interim applications); {22.1.19} (application for interim relief made after claim filed). 20.1.2 Interim remedies: Pre-Action Protocol. Judicial Review Pre-Action Protocol Annex C (model letter before claim) §8 (“8 The details of the action that the defendant is expected to take”; “Set out the details of the remedy sought, including whether … any interim remedy [is] being requested”); JR:PAP §23 (contents of defendant/interested party’s letter of response: “the reply should … (f) where appropriate, confirm whether or not they will oppose any application for an interim remedy”); {19.1.9} (letter of response). 20.1.3 Urgent cases: Pre-Action Protocol. {19.1.4} (pre-action practice in urgent cases). 20.1.4 Availability of interim remedies. M v Home Office [1994] 1 AC 377, 421F-422G (interim injunctions available in principle in judicial review, including against the Crown). R v Licensing Authority Established By The Medicines Act 1968, ex p Rhone Poulenc Rorer Ltd [1998] EuLR 127, 142C-F (no need for a “cause of action”, that being “a private law concept”); In re S (Hospital Patient: Court’s Jurisdiction) [1996] Fam 1, 10G-H (interim injunction in claim for a declaration); {22.2.21} (interim remedy sought against third party). 20.1.5 Cooperation and interim relief. Administrative Court: Judicial Review Guide (2020 edition) at §12.2.5 (“If the parties are able to agree … interim relief, they should file an agreed draft order (i.e. a draft consent order), which will be subject to the Court’s approval”), §15.5.1 (“The claimant should always try to reach an agreement with the public authority, even for a short period, before applying for interim relief. The Court will expect to be told about such efforts and why they have not succeeded, if the matter is brought before the Court instead”). 20.1.6 Interim relief: undertakings in lieu of court order. R (Agyeman) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWHC 2180 (Admin) at §1 (undertaking to facilitate claimant’s return to the UK); R v Save Guana Cay Reef Association [2009] UKPC 44

54The

equivalent paragraph in a previous edition was relied on in R v Public Service Commission, ex p Tokaibai [2005] FJHC 107.

THE NATURE OF JUDICIAL REVIEW

at §24 (developer giving undertaking to stop work until outcome of judicial review known); R (Faisaltex Ltd) v Crown Court at Preston [2008] EWHC 2832 (Admin) [2009] 1 WLR 1687 at §10 (undertaking not to access seized materials pending judicial review); AB (Jamaica) v SSHD [2007] EWCA Civ 1302 [2008] 1 WLR 1893 at §37 (“ministers of the Crown can and do give undertakings to the court in appropriate cases … it is consonant with the dignity of the Crown that, where an interim measure of this kind is appropriate, its ministers should undertake rather than be ordered”); R v Liverpool City Council, ex p May [1994] COD 144 (undertaking to pay housing benefit until further order); R v Ministry of Agriculture Fisheries & Food, ex p Cox (1994) 6 Admin LR 421, 425A (undertaking in lieu of a stay); Beggs v Scottish Ministers [2007] UKHL 3 [2007] 1 WLR 455 at §18 (contempt for breach of undertaking given to judicial review court in lieu of interim remedy); R v Monopolies & Mergers Commission, ex p Elders IXL Ltd [1987] 1 WLR 1221, 1231D (MCC agreeing not to disclose the information until after determination of the proceedings); Administrative Court: Judicial Review Guide (2020 edition) at §15.5.5 (undertaking to the Court operates as a court order). 20.1.7 Interim relief: undertakings from the claimant. {20.2.14} 20.1.8 Procedural rigour and interim relief: proactivity and notice.55 Administrative Court: Judicial Review Guide (2020 edition) at §12.2.4 (“If a party is aware that they may need to apply for an interim order they should first seek to obtain the agreement of the other parties to the claim to the form of order sought. In default of agreement the ACO should be informed. The application should then be made as quickly as possible. Delay in making an application, especially where it requires urgent consideration, is a factor which may weigh against the granting of the order that is sought”); R v Metropolitan Police Force Disciplinary Tribunal, ex p Lawrence The Times 13 July 1999 (see transcript) (where stay being sought, “essential” that defendants “notified of the proposed application so that they are given the opportunity if they wish to be heard”); R v London Boroughs Transport Committee, ex p Freight Transport Association [1989] COD 572, 573 (highly desirable that interim remedies dealt with at oral permission hearing, with notice to defendant); National Commercial Bank Ltd v Olint Corporation Ltd [2009] UKPC 16 [2009] 1 WLR 1405 at §13 (“a judge should not entertain an application of which no notice has been given unless … there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act”). 20.1.9 Procedural rigour and interim relief: ensuring defendant/interested party is heard. Administrative Court: Judicial Review Guide (2020 edition) at §15.2.9 (“Wherever possible the Court will want representations from the defendant before determining the application. In cases where interim relief is sought, the Court will generally make an order allowing the defendant a short time to file written submissions before deciding the application, unless irreversible prejudice would be caused to the claimant in the meanwhile; alternatively, the judge may list the matter for a hearing on notice to the defendant”), §15.5, §15.10.3 (“The Court will rarely grant any form of interim relief without establishing what the other parties to the claim say in respect of the application. The Court will usually permit other parties the opportunity to respond to the application. In an urgent case, the time allowed for response may be short”), §15.10.4 (“If time does not permit the defendant to be heard, then the Court will consider granting interim relief without a hearing for a very short period until other parties have been able to make submissions (either in writing or at a hearing)”). 20.1.10 Procedural rigour and interim relief: claimant’s duty of candour. Administrative Court: Judicial Review Guide (2020 edition) at §15.1.2.3 (on an urgent application for interim relief, litigants and their advisers must “comply with their duty of candour which requires them to disclose all relevant material to the Court”); Birmingham City Council v Afsar [2019] EWHC 1560 (QB) (discharging interim relief with costs where material non-disclosure in without-notice application), §§19, 21 (nature of duty of full and frank disclosure); {10.3.2} (procedural rigour: claimant candour and urgent interim relief). 55The

equivalent paragraph in a previous edition was relied on in R (Merlot 73 Ltd) v City of Westminster Magistrates’ Court [2013] EWHC 3416 (Admin) [2014] LLR 377 at §9 (Blair J).

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20.1.11 Interim relief refused on the papers: renewal to open court. Administrative Court: Judicial Review Guide (2020 edition) at §15.9 (challenging a decision on an application for interim relief), §17.1.3 (skeleton arguments should be prepared), §17.4.3 (“Skeleton arguments must be filed and served in good time before any hearing”), §18.2 (bundle, in good time); R (Nolson) v Stevenage Borough Council [2020] EWCA Civ 379 at §18 (refusal of interim relief on the papers can, unless that mode was agreed between the parties, be renewed into open court under CPR3.3(5) and the order should say so); MD (Afghanistan) v SSHD [2012] EWCA Civ 194 at §21 (paper refusal of interim relief should be renewed first to the Administrative Court for an oral hearing, not immediately appealed to the CA); R (Gasztony) v SSHD [2018] EWHC 3500 (Admin) at §1 (interim relief adjourned to an oral hearing). 20.1.12 Interim relief granted on the papers: application to vary/set aside in open court. Administrative Court: Judicial Review Guide (2020 edition) at §15.9 (challenging a decision on an application for interim relief), §17.1.3 (skeleton arguments should be prepared), §17.4.3 (skeleton arguments “must be filed and served in good time”), §18.2 (bundle, in good time). 20.1.13 Pre-permission interim remedies. Administrative Court: Judicial Review Guide (2020 edition) at §15.2.1 (“In exceptionally urgent circumstances, a person may make an application, typically for interim relief, before starting judicial review proceedings. … The Court may only grant a pre-action order where the matter is urgent; or it is otherwise necessary to do so in the interests of justice”), §15.6 (interim relief applications made before the commencement of proceedings); CPR 25.2(1)(a) (interim remedy may be ordered at any time including before proceedings started); R (Lochailort Investments Ltd) v Mendip District Council [2019] EWHC 2633 (QB) at §§1, 63, 8 (interim relief granted prior to judicial review claim being commenced); Taveta Investments Ltd v Financial Reporting Council [2018] EWHC 1662 (Admin) (interim relief application prior to permission for judicial review); M v Home Office [1994] 1 AC 377, 422A-B (interim remedy available in urgent cases pending consideration of permission); R (Webb) v Bristol City Council [2001] EWHC Admin 696 (permission should not have been granted while defendant’s acknowledgment was awaited and time-limit unexpired; if interim remedy was urgent, it should have been granted prepermission); R (LM) v SSHD [2020] EWHC 1587 (Admin) at §25 (having granted interim relief on an urgent basis, permission should await the defendant’s AOS). 20.1.14 Stay of proceedings to which the claim relates.56 CPR 54.10(1)-(2) (“(1) Where permission to proceed is given the court may also give directions. (2) Directions under paragraph (1) may include (a) a stay of proceedings to which the claim relates”); R (TI) v Bromley Youth Court [2020] EWHC 1204 (Admin) [2020] 2 Cr App R 22 at §9 (hearing in Youth Court vacated and proceedings stayed to allow judicial review of decision refusing to appoint an intermediary); R (DPP) v Walsall Magistrates’ Court [2019] EWHC 3317 (Admin) [2020] ACD 21 at §§15, 29 (magistrates’ proceedings stayed to allow prosecution to seek judicial review of disclosure orders); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §10 (stay granted as to the implementation of decision to release prisoner); R (McCourt) v Parole Board [2020] EWHC 433 (Admin) (stay to prevent release of prisoner refused); R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 3278 (Admin) at §26 (Lindblom J, explaining the appropriateness of a stay, where an order is needed “that the decision should not take effect until the challenge is determined”, applicable also to “an administrative decision-making process being undertaken by a public body”); R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin) [2018] PTSR 142 at §12 (investigation stayed pending judicial review); R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 [2003] 1 WLR 127 at §42 (“stay of proceedings” given “a wide interpretation so as to apply to administrative decisions” and “enhance the effectiveness of the judicial review jurisdiction”; “The purpose of a stay in a judicial review is clear. It is to suspend the ‘proceedings’ that are under challenge

56The

equivalent paragraph in a previous edition was relied on in R (DL) v Newham LBC [2011] EWHC 1127 (Admin) [2011] 2 FLR 1033 at §110 (Charles J).

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pending the determination of the challenge. It preserves the status quo. This will aid the judicial review process and make it more effective. It will ensure, so far as possible, that, if a party is ultimately successful in his challenge, he will not be denied the full benefit of his success”), §46 (jurisdiction to grant a stay even where decision fully implemented); R v HM Treasury, ex p British Telecommunications Plc [1994] 1 CMLR 621 (doubting whether “a stay … could take effect in relation to enacted law which has come into force and calls for no further action by the party against whom the stay is granted”); M v Home Office [1994] 1 AC 377, 422G (“a stay could be granted against the Crown”); R v Secretary of State for Education and Science, ex p Avon County Council [1991] 1 QB 558, 561G-562C (“An order that a decision of a person or body whose decisions are open to challenge by judicial review shall not take effect until the challenge has finally been determined is … correctly described as a stay”). 20.1.15 Interim declarations. CPR 25.1(b) (“(1) The court may grant the following interim remedies – … (b) an interim declaration”); Woolf Report, Access to Justice (1996) at p.253; N v Royal Bank of Scotland Plc [2017] EWCA Civ 253 [2017] 1 WLR 3938 at §83 (Hamblen LJ, recording that: “it is said that the courts are gradually making greater use of interim declarations in judicial review proceedings”); R (AM) v DPP [2012] EWHC 470 (Admin) (interim declaration granted) at §25 (declaring that claimant’s solicitors entitled to obtain information and would not be acting unlawfully); G v E [2010] EWCA Civ 822 [2012] Fam 78 at §65 (High Court judge having made interim declarations that local authority placement was in claimant’s best interests), §67 (effect being that detention was lawful); Amalgamated Metal Trading Ltd v City of London Police Financial Investigation Unit [2003] EWHC 703 (Comm) [2003] 1 WLR 2711 at §10 (Tomlinson J: “It remains to be worked out what are the circumstances in which it might be appropriate to resort to this new jurisdiction”); R v R (Interim Declaration) [2000] 1 FLR 451, 453B (“Until recently there was no power even to consider an interim declaration”; “However, the lacuna in the law has been remedied by Part 25”); Governor and Company of the Bank of Scotland v A Ltd [2001] EWCA Civ 52 [2001] 1 WLR 751 at §45 (“It was at one time thought, that an interim declaration could have no practical purpose. The developments in other jurisdictions showed this was not the situation. Now the Civil Procedure Rules acknowledge that just as interim injunctions can be granted so can interim declarations”); R v Secretary of State for Trade and Industry, ex p Trades Union Congress [2000] EuLR 698 (DC) and The Times 17 October 2000 (CA) (both Courts considering, on its merits, application for interim declaration pending reference to the CJEU); R v Environment Agency, ex p Mayer Parry Recycling Ltd [2001] Env LR 630 (interim declaration addressed by reference to balance of convenience, especially because would amount in substance to interim injunction); R (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region [2001] EWHC Admin 901 (2002) 5 CCLR 36 (Administrative Court) at §98 (interim declaration inappropriate to curtail liberty or force medical treatment); cf NHS Trust v T (Adult Patient: Refusal of Medical Treatment) [2004] EWHC 1279 (Fam) [2005] 1 All ER 387 (in a best interests case, interim declaration appropriate to enable future emergency blood transfusions if refused by selfharming adult with mental incapacity). 20.1.16 Judicial review interim relief to secure effective tribunal appeal. R (OWD Ltd) v HMRC [2019] UKSC 30 [2019] 1 WLR 4020 at §§50-73 (discussing judicial review jurisdiction to secure interim relief pending appeal, in circumstances where interim relief not available on the appeal itself); R (Ingenious Construction Ltd) v HMRC [2020] EWHC 2255 (Admin) at §56 (referring to the “high hurdle which a claimant needs to surmount”, applying CC & C Ltd v HMRC [2014] EWCA Civ 1653 [2015] 1 WLR 4043); R (DEF Ltd) v HMRC [2019] EWHC 600 (Admin) (interim relief granted; discussing application and nature of test of “high degree of probability” that appeal would be rendered nugatory, and EU law requirement of effective remedy); Q Ltd v HMRC [2019] EWHC 712 (QB); R (Med Chambers Ltd) v Medco Registration Solutions Ltd [2017] EWHC 3258 (Admin) at §§17, 47 (jurisdiction to grant ‘free standing’ application for interim relief to restrain suspension pending appeal); {36.1.1} (gap-filling judicial review: interim remedy). 288

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20.1.17 Interim mandatory order: release from detention. R (Osadebay) v SSHD 11 August 2020 unreported (Linden J, ordering release from immigration detention as interim relief); Mohammed v SSHD [2020] EWHC 1337 (Admin) [2020] ACD 71 (strong claim that detention unlawful); R (Gasztony) v SSHD [2018] EWHC 3500 (Admin) at §13 (balance of convenience favouring release from immigration detention), §14 (avoiding “a precipitate release”), §§16-17 (allowing time for assessments and arrangements); R (DM) v Secretary of State for Home Department [2018] EWHC 4006 (Admin) at §24 (time frame for Secretary of State to release claimant to approved accommodation or return to court with an evidenced explanation why not possible); R (AC (Algeria)) v SSHD [2020] EWCA Civ 36 [2020] 1 WLR 2893 at §31 (strict approach to “grace period” allowing for practical matters such as organising conditions of release). 20.1.18 Bail as a mandatory interim remedy: judicial review of bail refusal. R (Iqbal) v Crown Court at Canterbury [2020] EWHC 452 (Admin) (judicial review of Crown Court’s refusal of bail), §26 (High Court’s inherent power to grant bail after its refusal in magistrates’ court or Crown Court abolished and sole route judicial review: Criminal Justice Act 2003 s.17), §27 (jurisdiction to be exercised “sparingly”), §36 (“robust application of Wednesbury principles”); {24.4.12} (mandatory order for release on bail). 20.1.19 Interim remedy: limits of the public authority powers. R (OWD Ltd) v HMRC [2019] UKSC 30 [2019] 1 WLR 4020 at §71 (doubting whether judicial review Court could properly order interim relief to require the Revenue to do something not within its statutory powers, namely to grant a temporary approval despite being satisfied that the person was not fit and proper). 20.1.20 Interim remedy for the benefit of a class/non-parties. R (NN) v SSHD [2019] EWHC 1003 (Admin) [2019] ACD 71 (mandatory order requiring continuance of support for all accepted victims of people trafficking) at §22 (just as it is “open to an NGO concerned with a particular matter to seek injunctive relief in public law proceedings for those affected by that matter … it must be open to Claimants … to seek similar relief for persons identically situated to them”). 20.1.21 Interim remedies in action: housing/welfare cases. R (NN) v SSHD [2019] EWHC 766 (Admin) at §16 (interim remedy requiring levels of support to be maintained for victims of modern slavery, given “irremediable prejudice” they would suffer “if their current levels of support are not maintained pending the outcome of these claims”); R (MS) v Hammersmith and Fulham LBC [2019] EWHC 3895 (Admin) (ordering interim relief housing teenager where two local authorities disputing whose responsibility); R (SH) v Waltham Forest LBC [2019] EWHC 2160 (Admin) at §21 (no “strong prima facie case” for mandatory interim relief requiring provision of accommodation); R (ZT) v Croydon LBC [2019] EWHC 2221 (Admin) (interim relief requiring council to treat claimant as a child pending judicial review challenge to assessment that an adult); R (Rajput) v Waltham Forest LBC [2011] EWCA Civ 1577 (2012) 15 CCLR 147 at §17 (without-notice injunction granted on the papers to restrain implementation of changed level of service provided to sheltered housing site), §19 (injunction discharged when permission for judicial review refused); R (Konodyba) v Kensington & Chelsea Royal LBC [2011] EWHC 2653 (Admin) (discharging interim injunction, pending county court appeal, where no strong prima facie case); R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin) (mandatory injunction to require temporary accommodation); R (W) v Sheffield City Council [2005] EWHC 720 (Admin) (interim order requiring housing, pending county court resolution, appropriate where claimant genuinely vulnerable and conclusions appearing unreasonable); R v Cardiff City Council, ex p Barry (1989) 22 HLR 261, 263 (interim injunction to secure temporary accommodation usually following grant of permission, where necessary); R v Kensington & Chelsea Royal LBC, ex p Hammell [1989] QB 518; R (AA) v Lambeth LBC [2001] EWHC Admin 741 (2002) 5 CCLR 36 (interim injunction to require reinstatement of welfare support for asylum-seeker); Practice Statement (Late claim for asylum: interim relief) [2004] 1 All ER 923 (describing practice in interim relief cases involving Nationality Immigration and Asylum Act 2002 s.55, 289

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where Secretary of State’s decision rejecting asylum support on basis that asylum not claimed promptly). 20.1.22 Interim remedies in action: immigration. Administrative Court: Judicial Review Guide (2020 edition) at §15.11 (particular rules applicable to removal cases), §15.11.4 (special candour requirements); CPR PD54A §18; R (Mendes) v SSHD [2020] EWCA Civ 924 at §34 (EU proportionality exercise necessary in deciding interim relief to order facilitated return to the UK of a person removed and challenging out of country appeal certification); R (O) v SSHD [2018] EWCA Civ 2236 (“wholly exceptional” circumstances in which claimant given permission to work by way of interim relief); R (QR (Pakistan)) v SSHD [2018] EWCA Civ 1413 at §§53-54 (declining to order interim relief to require SSHD to take immediate steps to return the claimant to the UK); R (SB (Afghanistan)) v SSHD [2018] EWCA Civ 215 [2018] 1 WLR 4457 at §56 (CA identifying key principles regarding interim remedies pursued immediately prior to removal), §65 (judge should generally contact SSHD’s Operational Support and Certification Unit (OSCU) before issuing an urgent out of hours injunction on removal). 20.1.23 Interim relief to suspend an instrument/policy. R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin) at §9 (Swift J: “since the relief sought would prevent operation of part of the 2020 Regulations” prospect of success needing to be “particularly strong”), §18 (no “strong prima facie case” here); R (Association of British Insurers) v Lord Chancellor [2017] EWHC 106 (Admin) [2017] ACD 34 at §61 (Andrew Baker J: “the public interest … is a strong one … in permitting a public authority to apply its policy and be free to act as it proposes to do in the public interest in a particular sphere of activity as it judges that interest”); R (Offerton Park Parish Council) v Stockport Metropolitan Borough Council [2011] EWHC 2247 (Admin) at §§37-38 (suspension of Order abolishing parish council, and ordering reappointment of the councillors); R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603, 678G, applying Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295 per Lord Reid at 341F-G (where resisting the upholding of enacted law, whether as defendant or claimant, need “to show special reason why justice requires” this); R v HM Treasury, ex p British Telecommunications Plc [1994] 1 CMLR 621 (“Where an interim injunction is sought which will have the effect of disapplying national legislation pending a reference to the Court of Justice”, relevant to have regard to “the general undesirability of disturbing enacted law”); William Sinclair Holdings Ltd v English Nature [2001] EWHC Admin 408 [2002] Env LR 132 (interim injunction granted to prevent designation of protected site, on basis that there was a firmly-based claim for a declaration of incompatibility of primary legislation). 20.1.24 Interim remedies in action: other illustrations. R (Elgizouli) v SSHD [2020] EWHC 2516 (Admin) at §24 (interim order prohibiting SSHD from providing further material to the US government); R (Lochailort Investments Ltd) v Mendip District Council [2019] EWHC 2633 (QB) (interim injunction granted to prevent holding of local referendum on draft neighbourhood plan); Kenson Contractors (Benington) Ltd v Haringay LBC [2019] EWHC 1230 (Admin) (interim relief refused in tendering context, where weak and late claim, and third party expenditure); R (A) v Central Criminal Court [2017] EWHC 70 (Admin) [2017] 1 WLR 3567 at §6 (injunction prohibiting examination or download of seized materials pending resolution of challenge); Edenred (UK Group) Ltd v HM Treasury [2015] UKSC 45 [2015] PTSR 1088 at §25 (interim relief to prevent implementation of service, pending resolution of procurement challenges); R (City Banking College Ltd) v SSHD [2012] EWHC 24 July 2012 (interim relief to suspend impugned licence revocation, so that students could complete their degree courses); R v Ministry of Agriculture Fisheries and Food, ex p Monsanto Plc [1999] QB 1161, 1172F (“judicial review proceedings … are … neither intended for nor well suited to inhibiting commercial activity, particularly over an indefinite, substantial period of time”); R (Morge) v Hampshire County Council [2010] EWCA Civ 150 [2010] Env LR 546 at §2 (CA granting interim relief restraining implementation of impugned planning permission, pending appeal to the CA), §14 (varied by the CA to allow certain works); R (A & S Training College Ltd) v SSHD [2010] EWHC 3770 (Admin) at §10 (urgent order for 290

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immediate reinstatement of allocation of sponsorship certification function); R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 3278 (Admin) (setting aside a stay on Secretary of State’s communications to local authorities concerning proposed abolition of regional strategies, continuation of the stay was unnecessary in the light of a publicised and expedited hearing); R (Martin) v Harrow Crown Court [2007] EWHC 3193 (Admin) at §9 (suspension of driving disqualification pending judicial review); R (OSS Group Ltd) v Environment Agency [2006] EWHC 2390 (Admin) (order to prevent prosecution based on impugned waste-classification, pending judicial review); R (G) v Barnet LBC [2005] EWHC 1946 (Admin) [2006] ELR 4 (interim remedy available, albeit sparingly, in special educational needs case where arguable error of law, pending tribunal appeal); R v Newham LBC, ex p X [1995] ELR 303, 306E-307B (exceptional case where appropriate to grant interim remedy to ensure child back at the same school, given that strong prima facie case of unfairness or disproportionate penalty); R v Servite Houses and Wandsworth LBC, ex p Goldsmith (2000) 3 CCLR 354 (mandatory interim order granted by CA, requiring that residential home be kept open pending appeal); R v Humberside Family Health Services Authority, ex p Dr Moore [1995] COD 343 (restraining action without prior consultation); Pett v Greyhound Racing Association Ltd (No 1) [1969] 1 QB 125 (restraining disciplinary proceedings without legal representation); Highland Regional Council v British Railways Board [1996] SLT 274 (restraining withdrawal of train service without following statutory procedure); Napier v Scottish Ministers [2002] UKHRR 308 (mandatory order to compel transfer of prisoner to facilities with integral toilet rather than ‘slopping out’). 20.1.25 No interim relief: dangers of deciding to press ahead. 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”), §§38-42 (having held the retention of the vehicle unlawful, court awarding claimant damages, to be assessed, for wrongful disposal of vehicle); R v Secretary of State for Education and Science, ex p Hardy (1989) 153 LG Rev 592 (McNeill J: “So far as good administration is concerned, the LEA has only itself to blame if it went ahead with its proposals in the teeth of an application for judicial review. … [W]e can hardly regard it as conducive to anything but the prospect of administrative chaos to press on with substantial educational changes in the teeth of a challenge to the validity of the authority under which it is acting”); R (the Transport and General Workers Union) v Walsall Metropolitan Borough Council [2001] EWHC Admin 452 [2002] ELR 329 at §45 (remedy granted, declaring contract unlawful, in situation where local authority and contractor “went into it with their eyes open”). 20.1.26 Significance of failure to seek interim remedy. EnergySolutions EU Ltd v Nuclear Decommissioning Authority [2017] UKSC 34 [2017] 1 WLR 1373 at §49 (discussing situations where failure to seek interim relief relevant to exercise of discretion), §§56, 58 (not a reason to deny EU damages); Mass Energy Ltd v Birmingham City Council [1994] Env LR 298, 318 (relying on fact that claimants had “conspicuously failed to apply for [an] interim [remedy]”); R v Legal Aid Board, ex p Donn & Co (a Firm) [1996] 3 All ER 1, 15j-17b (granting judicial review notwithstanding argument that contract in operation for 6 months and claimants having chosen not to seek a stay when obtaining permission); R (Gavin) v Haringey LBC [2003] EWHC 2591 (Admin) [2004] 1 PLR 61 at §60 (referring to the absence of an interim injunction, in deciding that post-proceedings expense relevant to hardship/prejudice and refusal of remedy for delay); R v Birmingham City Council, ex p Dredger (1994) 6 Admin LR 553, 577E (“That [the claimants] did not apply for a stay is hardly a ground for refusing [a remedy] now”); {20.1.25} (no interim relief: dangers of deciding to press ahead). 20.1.27 Penal notice: public authority. R (JM) v Croydon LBC [2009] EWHC 2474 (Admin) [2010] 1 WLR 1658 at §12 (penal notice not necessary in interim order against public authority; interim order enforceable by contempt proceedings). 20.1.28 Application to set aside/vary interim remedy. R (Saeed) v SSHD [2018] EWHC 2507 (Admin) (SSHD successfully applying to set aside interim remedy ordering steps to 291

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return the claimant to the UK); R (Morge) v Hampshire County Council [2010] EWCA Civ 150 [2010] Env LR 546 (interim relief restraining implementation of impugned planning permission, pending appeal to the CA; CA allowing an application to vary, to allow certain works). 20.1.29 Appeal against decision as to interim remedy. {23.3.26}; {20.1.11} (interim relief refused on the papers: renewal to open court).

20.2 Court’s approach to interim relief.57 The principled approach to interim remedies examines: (1) whether the underlying claim raises a serious issue with a realistic prospect of success (whose strength may in an appropriate case be considered); and, if so (2) whether the ‘balance of convenience and justice’, having regard to the public interest, warrants the making of the order. 20.2.1 Interim relief in judicial review: the Court’s general approach. R (LXD) v Chief Constable of Merseyside [2019] EWHC 1120 (Admin) at §18 (Thornton J, explaining that the Court seeks: “to take the course which seems most likely to produce a just result or, to put the matter less ambitiously, to minimise the risk of an unjust result”); Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2003] UKPC 63 [2003] 1 WLR 2839 at §35 (“when the court is asked to grant an interim injunction in a public law case, it should approach the matter on the lines indicated … in American Cyanamid …, but with modifications appropriate to the public law element of the case”); Administrative Court: Judicial Review Guide (2020 edition) at §15.10.1 (“When considering whether to grant interim relief while a judicial review claim is pending, the judge will consider [1] Whether there is a real issue to be tried – i.e. whether there is a real prospect that the claim will succeed at the substantive hearing [2] Whether the balance of convenience lies in favour of granting the interim order. The balance of convenience includes consideration of any matters relevant to whether or not the interim relief sought should be granted, including any relevant public interests which either favour or oppose grant of the interim relief sought”); R (Bishop) v Public Service Ombudsman for Wales [2020] EWHC 1503 (Admin) at §35 (interim relief refused because no “serious issue to be tried”). 20.2.2 Importance of the public interest. R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin) at §9 (Swift J: “the Claimant must first show a real prospect that at trial he will succeed …, taking account of the fact that any decision to grant … [final] relief would include consideration of the public interest”; “the next issue is whether or not the balance of convenience favours the grant of relief [which] requires me to assess the prejudice that would raise if interim relief were wrongly granted, and weigh that against the prejudice that would arise were interim relief wrongly to be refused. At this stage too, the public interest is a relevant consideration”); R (Medical Justice) v SSHD [2010] EWHC 1425 (Admin) (balance of convenience, modified by public interest considerations); Smith v Inner London Education Authority [1978] 1 All ER 411, 422h (Browne LJ: where a public authority is involved, “one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed”), cited in R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603, 673C; R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 3278 (Admin) at §28 (Lindblom J: “in the present case the balance necessarily involves not merely the interests of the parties but also the public interest”); R v Ministry of Agriculture Fisheries and Food, ex p Monsanto Plc [1999] QB 1161, 1173E (public interest that decision of public body should be respected until set aside); Sierbein v Westminster City Council (1987) 86 LGR 431 (importance of public interest where seeking to restrain enforcement of the criminal law); BX v SSHD [2010] EWCA Civ 481 [2010] 1 WLR 2463 at §31

57The

equivalent paragraph in a previous edition was relied on in Thomas v NHA [2003] TTHC 36; Suveinakama v COG of Tokelau [2017] NZHC 3171 at §26 (Thomas J); Re JR 94 [2019] NIQB 112 at §19 (Keegan J); In re McCord [2020] NIQB 17 at §32 (Keegan J).

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(“the balance is assessed in the context of the exercise by the Secretary of State of an important public duty”). 20.2.3 Whether public interest in public authority’s position subsisting. Administrative Court: Judicial Review Guide (2020 edition) at §15.10.2 (“There is often a strong public interest in permitting a public authority’s decision to remain in force pending a final hearing of the application for judicial review, so the party applying for interim relief must make out a strong case for the grant of interim relief”); {20.1.23} (interim relief to suspend an instrument/policy). 20.2.4 The ‘balance of convenience and justice’. N v Royal Bank of Scotland Plc [2017] EWCA Civ 253 [2017] 1 WLR 3938 at §44 (Hamblen LJ, referring to “the balance of convenience and justice”); National Commercial Bank Ltd v Olint Corporation Ltd [2009] UKPC 16 [2009] 1 WLR 1405 at §16 (“The purpose of [an interim] injunction is to improve the chances of the court being able to do justice after a determination of the merits at the trial. At the interlocutory stage, the court must therefore assess whether granting or withholding the injunction is more likely to produce a just result”), §17 (“The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other”), §18 (“Among the matters which the court may take into account are the prejudice which the [claimant] may suffer if no injunction is granted or the defendant may suffer if it is; the likelihood of such prejudice actually occurring; the extent to which it may be compensated by an award of damages or enforcement of the cross-undertaking; the likelihood of either party being able to satisfy such an award; and the likelihood that the injunction will turn out to have been wrongly granted or withheld, that is to say, the court’s opinion of the relative strength of the parties’ cases”); R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603, 672D (“the balance of convenience”), 659F (“the course which, in all the circumstances, appears to offer the best prospect that eventual injustice will be avoided or minimised”); R v Secretary of State for Transport, ex p Factortame Ltd [1990] 2 AC 85, 139G (“a pragmatic decision as to who is likely to suffer the greater injustice”); R v Licensing Authority Established By The Medicines Act 1968, ex p Rhone Poulenc Rorer Ltd [1998] EuLR 127, 145A (Laws J, describing “the test of lesser injustice”); cf Seepersad v AyersCaesar [2019] UKPC 7 at §§12, 15 (“when considering interim relief in constitutional cases” court should apply this “tri-partite test”: “first, there should be a preliminary assessment of the merits to see whether there [is] a serious issue to be tried …; second, it must be determined whether the applicant would suffer irreparable harm if the application were refused; and third, an assessment must be made as to which of the parties would suffer the greater harm from the granting or refusal of the remedy pending a decision on the merits”). 20.2.5 Whether ‘realistic prospect’ distinct from permission arguability. Packham v Secretary of State for Transport [2020] EWHC 829 (Admin) at §2 (“it was not practicable to distinguish between the first part of the test for an interim injunction (namely, whether the claimant has a realistic prospect of success), and the test for whether permission to bring judicial review proceedings should be granted”); R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin) at §32 (Swift J, describing the real prospect of success for interim relief as not necessarily “the same as the question of arguability for … permission for judicial review”, at least where interim relief to restrain regulations); R (Ideal Carehomes (Number One Ltd)) v Care Quality Commission [2018] EWHC 886 (Admin) [2018] ACD 42 at §30 (Lang J: “generally a claimant must establish that there is a serious issue to be tried which is a higher threshold than the [permission] arguability test”); R (Johnson) v Royal Free London NHS Foundation Trust [2019] EWHC 1143 (Admin) at §20 (no “arguable claim, let alone a serious issue to be tried”); R (O) v Cardiff City Council [2019] EWHC 2237 (Admin) at §18 (no “sufficiently strong case for interim relief to be granted”). 20.2.6 Interim mandatory relief: whether need for a ‘strong prima facie case’. R (Nolson) v Stevenage Borough Council [2020] EWCA Civ 379 at §§8, 20 (leaving open whether “strong prima facie case” is the correct test for mandatory interim relief, in a housing case); R (Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA 594 at §66 (suggesting that references to “strong prima facie case” are not 293

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“deployed as a ‘threshold’ or ‘gateway’ test”, instead that “the underlying strength of the substantive challenge is likely to be a significant factor in the balance of considerations weighing for or against the granting of an injunction”); R (Easter) v Mid Suffolk District Council [2019] EWHC 1574 (Admin) at §11 (“in the context of ordering a public authority to take a positive step” to “exercise its powers”, need “a strong prima facie case”); R (SH) v Waltham Forest LBC [2019] EWHC 2160 (Admin) at §21 (no “strong prima facie case” here for mandatory interim relief requiring provision of accommodation); Francis v Royal Borough of Kensington and Chelsea [2003] EWCA Civ 443 [2003] 1 WLR 2248 at §16 (need “strong” prima facie case for interim mandatory injunction to enforce a statutory duty), §18 (even stronger test appropriate where interim mandatory injunction to enforce an exercise of a statutory power). 20.2.7 Relevance of liberty of the individual. R (FD) v X Metropolitan Borough Council [2019] EWHC 3481 (Admin) at §25 (Lieven J: “In applying the balance of convenience test, I very much take account of the fact that the case concerns liberty, and that the claimant argues that she is unlawfully detained. That is a factor which will weigh heavily in the balance”); applied in R (McCourt) v Parole Board [2020] EWHC 433 (Admin) at §13; R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 [2003] 1 WLR 127 at §44 and §47 (need for “strong” case to grant interim remedy in challenge to MHRT discharge, resulting in claimant’s detention). 20.2.8 Where interim remedy is effectively the final remedy. R (Detention Action) v SSHD [2020] EWHC 732 (Admin) [2020] ACD 70 at §17 (“since the relief sought … is, for all practical purposes, final relief …, this application for interim relief cannot succeed unless a particularly strong case is shown”); cf NWL Ltd v Woods [1979] 1 WLR 1294, 1307 (more stringent threshold required where effect of interim remedy application will be final); Douglas v Hello! Ltd [2001] QB 967 at §51. 20.2.9 Strength of the claim as a factor in the balance. R (Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA 594 at §66 (“the underlying strength of the substantive challenge is likely to be a significant factor in the balance of considerations weighing for or against the granting of an injunction”), §88 (“the strength of the claim, not as a ‘gateway’ test, but as a factor legitimately to be weighed in the balance of considerations”). 20.2.10 Interim remedy to restrain publication. R (Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA 594 at §§75, 77 (“a high hurdle (‘pressing grounds’, ‘the most compelling reasons’ or ‘exceptional circumstances’) for the grant of interim relief to restrain publication of a report by a public authority”, endorsing R (Barking and Dagenham College) v Office for Students [2019] EWHC 2667 (Admin) at §37), §§68, 79 (discussing R (Interim Executive Board of X) v Ofsted [2016] EWHC 2004 (Admin) [2017] EMLR 5 as an example of a case where interim relief was justified); Taveta Investments Ltd v Financial Reporting Council [2018] EWHC 1662 (Admin) at §95; R (Ideal Carehomes (Number One Ltd)) v Care Quality Commission [2018] EWHC 886 (Admin) [2018] ACD 42 at §31; {9.4.10} (HRA and remedies: freedom of expression). 20.2.11 Resolving a question of law at interim relief stage. R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603, 677G (“If the only question at issue between the parties is one of law it may be possible in many cases to decide this at the stage of a contested application for an interim injunction”); R v Secretary of State for Transport, ex p Factortame Ltd [1990] 2 AC 85, 140E-F (situations where the Court “confronted with the issue at any level would decide it and no question of interim [remedy] could possibly arise”). 20.2.12 Addressing urgency by giving expedited substantive hearing. Administrative Court: Judicial Review Guide (2020 edition) at §15.10.5 (“sometimes, the Court may respond to an application for interim relief by ordering expedition of the substantive claim instead of hearing the application for interim relief separately”); R (AM) v Newham LBC [2020] EWHC 327 (Admin) [2020] PTSR 1077 at §3 (interim relief not pursued; expedition ordered instead); 294

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R (LXD) v Chief Constable of Merseyside [2019] EWHC 1120 (Admin) at §§31-32 (ordering an expedited rolled-up hearing but declining interim relief), §28 (not satisfied that it would be in “children’s best interests to undergo another potentially disruptive and short term move pending an expedited trial”); R (Licensed Private Car Hire Associated Ltd) v Transport for London [2018] EWHC 331 (Admin) at §§39-40 (interim relief inappropriate, but directing expedited substantive hearing); R (IM (Nigeria)) v SSHD [2013] EWCA Civ 1561 [2014] 1 WLR 1870 at §4 (CA refusing interim relief but directing a hearing of the substantive appeal 4 days later, giving the result at that hearing); {21.5.17} (directions for expedition/ abridgement). 20.2.13 Interim relief: special difficulties as to ‘adequacy of damages’. R (Medical Justice) v SSHD [2010] EWHC 1425 (Admin) at §12 (“generally speaking damages will not be payable in the event of an unlawful administrative act, nor will a public authority suffer financial loss from being prevented from implementing its policy”); R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603, 672G-673B (Lord Goff, referring to problems in seeking to resolve public law cases at the “adequacy of damages” stage of the American Cyanamid test, because claimant has “no general right to indemnity by reason of damage suffered through invalid administrative action” and defendant “cannot normally be protected by a remedy in damages because it will itself have suffered none”). 20.2.14 Interim relief: undertakings from the claimant. Administrative Court: Judicial Review Guide (2020 edition) at §15.5.4 (“The Court may require the claimant to give undertakings as a condition of any interim relief”), §15.5.5 (“An undertaking operates as if it was a Court order. Breach of an undertaking is equivalent to breaching a Court order, which the Court can sanction. Sanctions can include any of the following: imposing an adverse costs order on the party in default; refusing to hear the application; striking out the claim; and proceeding to consider committal for contempt of Court”). 20.2.15 Interim relief: presence/absence of claimant cross-undertaking in damages. Administrative Court: Judicial Review Guide (2020 edition) at §15.5.4 (“the claimant may be required to give an undertaking in damages, so that if the defendant ultimately succeeds and has suffered financial loss because of the interim relief ordered, the claimant will have to compensate the defendant for that loss”); CPR 25PD §5.1(1) (“Any order for an injunction, unless the court orders otherwise, must contain: (a) … an undertaking by the applicant to the court to pay any damages which the respondent sustains which the court considers the applicant should pay”), §5.3 (special rule applicable in Aarhus environmental claims); R v Inspectorate of Pollution, ex p Greenpeace Ltd [1994] 1 WLR 570, 574H (relevance of cross-undertaking in damages “essentially a matter for the discretion of the judge”); R v Servite Houses and Wandsworth LBC, ex p Goldsmith (2000) 3 CCLR 354, at §§37-38 (no cross-undertaking required from elderly residents challenging decision to close residential home; court granting interim mandatory injunction); EnergySolutions EU Ltd v Nuclear Decommissioning Authority [2017] UKSC 34 [2017] 1 WLR 1373 at §54 (cross-undertaking a choice for claimant); R v Secretary of State for Health, ex p Scotia Pharmaceuticals International Ltd (No 1) [1997] EuLR 625, 642D (no problem as to adequacy of damages from defendant’s point of view, since claimant required to give cross-undertaking in damages and having ability to pay); R v Secretary of State for the Environment, ex p Royal Society for the Protection of Birds (1995) 7 Admin LR 434, 443B-C (RSPB “not prepared to give any cross undertaking in damages”); R v Darlington Borough Council, ex p Association of Darlington Taxi Owners [1994] COD 424 (legal capacity of claimant important because of requirement of cross-undertaking in damages); St George’s Healthcare NHS Trust v S [1999] Fam 26, 61A (referring to the crossundertaking “which is required as a matter of course”); R v Durham County Council, ex p Huddleston [2000] Env LR D21 (interim injunction granted, where wider questions of public interest, despite claimant’s inability to give a cross-undertaking); R v London Borough of Lambeth, ex p Sibyll Walter 2 February 1989 unreported (whether interim remedy absent cross-undertaking); The Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2003] UKPC 63 [2003] 1 WLR 2839 (claim not appearing sufficiently strong to hold up major dam project with no cross-undertaking in damages) at §39 295

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(wide discretion as to whether to grant interim relief despite cross-undertaking), §40 (important to form some view on strength of claim); R v Secretary of State for the Environment, ex p Rose Theatre Trust Company [1990] COD 47 (jurisdiction to grant interlocutory injunction without a cross-undertaking, but court extremely slow to do so); cf Coventry City Council v Finnie (1997) 29 HLR 658, 661 (“circumstances in which the court would grant an injunction without a cross-undertaking as to damages” not “closed. It is, after all, a rule of practice rather than [a] rule of law”); R v Inspectorate of Pollution, ex p Greenpeace Ltd [1994] 1 WLR 570, 577C (cross-undertaking an “entirely permissible condition” of the grant of interim relief where stay affecting third party); R v Medicines Control Agency, ex p Smith and Nephew Pharmaceuticals Ltd 26 March 1999 unreported (scope of the cross-undertaking representing reasonable royalty for lost sales rather than full trading losses); SmithKline Beecham Plc v Apotex Europe Ltd [2005] EWHC 1655 (Ch) [2006] 1 WLR 872 (whether cross-undertaking extending to cover third parties).

296

P21 The permission stage. The claimant must obtain permission: that means an arguable claim and no discretionary bar (such as delay or alternative remedy). 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

21.1 The permission process. The procedure at the permission stage allows informed judicial consideration on the papers, and if necessary at an oral hearing, of the questions (a) whether to grant permission for judicial review and (b) whether to make ancillary orders or case-management directions. 21.1.1 The permission requirement. Senior Courts Act 1981 s.31(3) (“No application for judicial review shall be made unless the [permission] of the High Court has been obtained in accordance with rules of court; and the court shall not grant [permission] to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates”); CPR 54.4 (“The court’s permission to proceed is required in a claim for judicial review whether started under this Section or transferred to the Administrative Court”); Administrative Court: Judicial Review Guide (2020 edition) at §6.1.1, §13.2.1, Annex 4 Part 2 §§10-11 (listing policy: permission hearings); Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54 [2019] PTSR 1406 at §55 (permission stage introduced into planning statutory review); cf Seal v Chief Constable South Wales Police [2007] UKHL 31 [2007] 1 WLR 1910 (absent the statutorily-required permission of the High Court under Mental Health Act 1983 s.139(2), proceedings a nullity); {21.2.8} (arguability test: an arguable ground with a realistic prospect of success). 21.1.2 Permission stage as ‘proceedings’. R v Commissioners of Inland Revenue, ex p Mead and Cook [1993] COD 324 (application for permission “proceedings” under Senior Courts Act 1981 s.51); R v Westminster City Council, ex p Castelli (1995) 7 Admin LR 840 (application for permission “proceedings” under Contempt of Court Act 1981); R v Camden LBC, ex p Martin [1997] 1 WLR 359 (discussing nature of permission jurisdiction). 21.1.3 Precedent: status of permission decisions. {11.1.22} (permission decisions: whether permission to cite). 21.1.4 Duties of candour: permission stage. {10.3} (claimant’s duty of candour); {10.4.8} (defendant candour at/prior to the permission stage). 21.1.5 Cooperation: permission unopposed by defendant/interested party. {19.3.8} (function and purpose of the AOS/SGR); R (NBV) v Parole Board [2018] EWHC 234 (Admin) at §9 (defendant and interested party accepting “that it is appropriate for permission to apply for judicial review to be granted, subject, of course, to the view of the court”); R (Harvey) v Ledbury Town Council [2018] EWHC 1151 (Admin) [2018] ACD 71 at §5 (permission granted “essentially by consent”); Administrative Court: Judicial Review Guide (2020 edition) at §7.3.4 (“Defendants and interested parties can assist the court, in appropriate cases, by stating in their Acknowledgment of Service that permission is not opposed”); {19.3.3} (conceding arguability/permission unopposed). 21.1.6 Claimant inviting refusal of permission. R (Mellor) v Secretary of State for Communities & Local Government (No 2) [2009] EWCA Civ 1201 at §4 (claimant “brought judicial review proceedings but immediately requested the High Court to refuse permission to apply for judicial review so that the matter could be put before the Court of Appeal”),

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§5 (Secretary of State unsuccessfully resisted the refusal of permission, and was ordered to pay the costs of that hearing). 21.1.7 Defendant inviting quashing order, on grant of permission. This was once a wellrecognised pragmatic course: see eg Pitchaiappah Gnanavarathan v A Special Adjudicator [1995] Imm AR 64, 72; R v Immigration Appeal Tribunal, ex p Probakaran [1996] Imm AR 603, 606. 21.1.8 Letters to ACO must be placed before the judge. Aaron v Law Society [2003] EWHC 2271 (Admin) at §75 (as to “communications relevant to their consideration by the Judge, an applicant must, and is entitled to, depend upon their transmission by court staff to the Judge”, since the “documents, by their very nature, should have alerted any reasonably experienced and diligent court officer responsible for the file of the need for their inclusion in the papers placed before the Judge”); {19.3.20} (claimant’s permission stage reply). 21.1.9 The ACO Lawyer’s Note. R v Lord Chancellor’s Department, ex p O’Toole [1998] COD 269 (claimant having no right to disclosure of note prepared for judge by ACO lawyer, but judge would raise any unknown adverse point with claimant); cf Parker v Law Society [1999] COD 183 (CA ‘bench memorandum’ in civil cases not requiring disclosure, but any unknown adverse point would be raised). 21.1.10 Cart claim: modified procedure. {2.3.2} 21.1.11 Initial consideration on the papers. CPR 54.12(1)-(2) (“(1) This rule applies where the court, without a hearing – (a) refuses permission to proceed; or (b) gives permission to proceed – (i) subject to conditions; or (ii) on certain grounds only. (2) The court will serve its reasons for making the decision when it serves the order giving or refusing permission in accordance with rule 54.11”); CPR PD54A §8.4 (“The court will generally, in the first instance, consider the question of permission without a hearing”); Administrative Court: Judicial Review Guide (2020 edition) at §8.1.2. 21.1.12 Order made on the papers (with reasons). CPR 54.11 (“The court will serve – (a) the order giving or refusing permission; and (ai) any certificate (if not included in the order) that permission has been granted for reasons of exceptional public interest in accordance with section 31(3F) of the Senior Courts Act 1981; and (b) any directions, on – (i) the claimant; (ii) the defendant; and (iii) any other person who filed an acknowledgment of service”); CPR 54.12 (“(1) This rule applies where the court, without a hearing – (a) refuses permission to proceed; or (b) gives permission to proceed – (i) subject to conditions; or (ii) on certain grounds only. (2) The court will serve its reasons for making the decision when it serves the order giving or refusing permission in accordance with rule 54.11”); CPR PD54A §9.1 (“An order refusing permission or giving it subject to conditions or on certain grounds only must set out or be accompanied by the court’s reasons for coming to that decision”). 21.1.13 Directing a rolled-up hearing. {21.4} 21.1.14 Directing the application to be resubmitted. Administrative Court: Judicial Review Guide (2020 edition) at §8.2.7 (“The application for permission is to be resubmitted. The judge has made no determination on the application for permission. Instead the judge will request the parties perform some act (such as file additional documents or representations) or await some other event (such as the outcome of a similar case). Once the act or event has been performed, or when the time limit for doing so has expired, the papers will be resubmitted to the judge to consider permission on the papers”). 21.1.15 Renewal of permission: claimant requesting reconsideration at oral hearing (Form 86B). Administrative Court: Judicial Review Guide (2020 edition) at §8.4 (reconsideration at an oral hearing); CPR 54.12(3)-(7) (“(3) Subject to paragraph (7), the claimant may not appeal but may request the decision to be reconsidered at a hearing. (4) A request under paragraph (3) must be filed within 7 days after service of the reasons under paragraph (2). (5) The claimant, defendant and any other person who has filed an 298

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acknowledgment of service will be given at least 2 days’ notice of the hearing date. (6) The court may give directions requiring the proceedings to be heard by a Divisional Court. (7) Where the court refuses permission to proceed and records the fact that the application is totally without merit in accordance with rule 23.12, the claimant may not request that decision to be reconsidered at a hearing”); MD (Afghanistan) v SSHD [2012] EWCA Civ 194 (paper refusal of permission should be renewed to open Court, not appealed to the CA); R (Kigen) v SSHD [2015] EWCA Civ 1286 [2016] 1 WLR 723 (strict approach to extension of time in relation to request for reconsideration). 21.1.16 Procedural rigour: basis for renewal. Administrative Court: Judicial Review Guide (2020 edition) at §8.4.5 (“The Claimant must provide grounds for renewing the application for permission and must in those grounds address the judge’s reasons for refusing permission by explaining in brief terms why the claimant maintains those reasons are wrong. It is not sufficient simply to state that renewal is sought on the original grounds, without seeking to explain the asserted error in the refusing judge’s reasons. If the refusing judge’s reasons are not addressed, the judge may make an adverse costs order against the claimant at the renewal hearing and/or impose any other sanction which she considers to be appropriate”); R (Yildrim) v Immigration Appeal Tribunal [2002] EWHC 1939 (Admin) at §13 (criticising the “large number of hopeless applications for permission to apply for judicial review [which] are renewed orally after a clear indication from the judge on paper that they have little prospect of success”). 21.1.17 Cart claim: no right of oral renewal of permission. {2.3.9}; {2.3} (Cart claims). 21.1.18 TWM certification: no right of renewal to oral hearing. {21.3.2} (TWM certification on paper permission: no High Court renewal hearing). 21.1.19 Nature of oral renewal hearing. Administrative Court: Judicial Review Guide (2020 edition) at §8.4.7 (“The renewal hearing is normally a public hearing that anyone may attend and observe and will take place in Court before a judge. The only issue at the hearing is the arguability of the claim or particular grounds, so hearings are expected to be short, with the parties making succinct submissions”), §8.6.1 (“The defendant and/or any interested party may attend the oral hearing. Unless the Court directs otherwise, they need not attend. If they have not filed an Acknowledgement of Service, they will have no right to be heard, although the Court may nonetheless permit them to make representations”), §8.6.3 (general pattern for hearing). Cf Royds LLP v Pine [2012] EWCA Civ 1734 [2013] 1 WLR 717 (a case about renewal of permission to appeal and reasonable adjustments for a claimant with a disability) at §19 (Court has power in an appropriate case to dispense with oral hearing and for a different judge to deal on the papers). 21.1.20 Procedural rigour: time estimate for oral renewal. Administrative Court: Judicial Review Guide (2020 edition) at §8.5 (“The standard time estimate for a renewed permission application is 30 minutes to include the Court giving judgment, if that is appropriate, at the end of the hearing”; “If either party reasonably believes that the renewed application (including judgment) is likely to last more than 30 minutes, that party must inform the ACO as soon as possible of that fact, and of the revised time estimate (to include time to give judgment on the claim). Failure to inform the ACO may result in the hearing having to be adjourned on the hearing day for lack of Court time, in which event the Court will consider making a costs order against the party or parties which should have notified the Court of the longer time estimate”; “Even where a party informs the Court that the renewed application is likely to take more than 30 minutes, the Court will only allocate such Court time as it considers appropriate, bearing in mind the pressure on Court time from other cases. In any event, it is rare that permission hearings will be allocated a time estimate over two hours”); R v SSHD, ex p Fadia Nader [1998] Imm AR 33 (importance of accurate time estimate for renewal hearing). 21.1.21 Judge on the papers directing an oral hearing: general. Administrative Court: Judicial Review Guide (2020 edition) at §8.2.5 (permission adjourned to oral hearing on notice); R (Cleeland) v Criminal Cases Review Commission [2009] EWHC 474 (Admin) 299

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at §48 (Scott Baker LJ, commending the “alternative to granting permission on paper … to adjourn the permission application for an oral hearing on notice”, which would have enabled the defendant to “expand upon and explain the grounds for resistance”); R v Oxford, ex p Levey (1987) 151 LG Rev 371 (position prior to the AOS being provided for in the rules), 373 (“it has long been the practice in appropriate cases for judges to invite a proposed [defendant] to assist the court upon the application for [permission] and to adjourn the application for this purpose”; “it is particularly desirable that such invitations should be accepted”); R v SSHD, ex p Gunn 14 July 2000 unreported (in many asylum cases “the Secretary of State will appear and in many cases will be expected by the court to appear”, the Court wishing “always to be certain that it has the benefit of full information”). 21.1.22 Judge on the papers directing an oral hearing: HL:NSD test. {4.1} (highly likely: not substantially different (HL:NSD)); CPR 54.11A (“(1) This rule applies where the court wishes to hear submissions on – (a) whether it is highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred; and if so (b) whether there are reasons of exceptional public interest which make it nevertheless appropriate to give permission. (2) The court may direct a hearing to determine whether to give permission. (3) The claimant, defendant and any other person who has filed an acknowledgment of service must be given at least 2 days’ notice of the hearing date.(4) The court may give directions requiring the proceedings to be heard by a Divisional Court. (5) The court must give its reasons for giving or refusing permission”). 21.1.23 Features of an oral permission hearing. Administrative Court: Judicial Review Guide (2020 edition) at §17.1.3 (“Parties should … prepare skeleton arguments before … any renewed permission … hearing …, even if the issue is straightforward”), §17.4.3 (“Skeleton arguments must be filed and served in good time before any hearing”); CPR PD54A §§8.5-8.6 (“8.5 Neither the defendant nor any other interested party need attend a hearing on the question of permission unless the court directs otherwise. 8.6 Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant”); R (Awodiya) v HM Commissioners of Revenue and Customs [2019] EWHC 251 (Admin) at §15 (importance of notice: second oral permission hearing conducted where Court error denied claimants proper notice of earlier oral permission hearing); R (Cleeland) v Criminal Cases Review Commission [2019] EWHC 1175 (Admin) at §86 (importance of hearing from defendant at oral renewal hearing); R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §71 (Auld LJ: “if a defendant or other interested party chooses to attend and contest the grant of permission at a renewal hearing, the hearing should be short and not a rehearsal for, or effectively a hearing of, the substantive claim”; wrong to “clog up [the permission] stage with full-scale rehearsals of what would be the substantive hearing of a claim if permission is granted”); R v SSHD, ex p Kingdom of Belgium 15 February 2000 unreported (DC granting permission in criminal case, following refusal by single judge at oral hearing); R v North West Leicestershire District Council, ex p Moses [2000] Env LR 443, 459 (“Judges must be astute to ensure that disproportionate time is not taken up at the permission stage”); {21.2.26} (procedural flexibility: turning permission hearing into substantive hearing). 21.1.24 Costs and permission. {18.3} (costs and the permission stage). 21.1.25 Permission: rights of appeal. {23.1} (permission-stage appeal). 21.1.26 No appeal from the grant of permission. {23.1.4} (no appeal from High Court grant of permission for judicial review). 21.1.27 Fresh permission application. R (Opoku) v Principal of Southwark College [2002] EWHC 2092 (Admin) [2003] 1 All ER 272 at §9 (permission decision interlocutory so no res judicata, but may be abuse of process to make repeat application absent new material), §16 (“The court should only exercise its discretion to grant permission where the claimant establishes that there has been a significant change of circumstances or that he has become aware of significant new facts which he could not reasonably have known or found out on 300

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the previous unsuccessful application or that a proposition of law is now maintainable which was not previously open to him”); {2.1.34} (whether a special approach to issue estoppel/res judicata/abuse of process). 21.1.28 Setting aside permission.58 CPR 54.13 (“Neither the defendant nor any other person served with the claim form may apply to set aside an order giving permission to proceed”); CPR 23.11(2) (“(1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence. (2) Where – (a) the applicant or any respondent fails to attend the hearing of an application; and (b) the court makes an order at the hearing, the court may, on application or of its own initiative, re-list the application”); Administrative Court: Judicial Review Guide (2020 edition) at §25.2.2 (“If the defendant or another interested party has not been served with the Claim Form, they may apply to the Administrative Court to set aside permission, but the power to set aside permission is exercised sparingly and only in a very plain case”); R (Singh) v SSHD [2019] EWCA Civ 1014 [2019] Imm AR 1275 at §14 (discussing CPR 23.11(2) and the inherent jurisdiction to set aside permission also available in that situation), §15 (CPR 54.13 “does not prevent the High Court from exercising its inherent power to set aside an order made in circumstances where an interested party has not had a fair opportunity to be heard”); R (Valentines Homes & Construction Ltd) v HMRC [2010] EWCA Civ 345 at §17 (permission set aside on discovery that claim had been served on HMRC but not on the solicitor to HMRC); R (Enfield Borough Council) v Secretary of State for Health [2009] EWHC 743 (Admin) (permission set aside in Court’s inherent jurisdiction, where permission granted before expiry of deadlines for acknowledgments of service, and where defendants could demonstrate claim neither arguable nor prompt); R (Khan) v SSHD [2008] EWHC 1367 (Admin) (permission set aside for nondisclosure, under liberty to apply granted by judge when granting permission, in circumstances where no AOS served); R (Webb) v Bristol City Council [2001] EWHC Admin 696 (using inherent jurisdiction to set aside permission granted where defendant had not yet lodged AOS and time for doing so had not expired); R (Candlish) v Hastings Borough Council [2005] EWHC 1539 (Admin) [2006] Env LR 278 at §15 (permission revoked where interested party’s AOS not brought to paper judge’s attention); R (Tataw) v Immigration Appeal Tribunal [2003] EWCA Civ 925 [2003] INLR 585 at §13 (permission for judicial review set aside where granted by mistake, in erroneous reliance on consent from Secretary of State given in a different case); R v Chief Constable of West Yorkshire, ex p Wilkinson [2002] EWHC 2353 (Admin) at §43 (“The court has always had power to recall and reopen orders and decisions in cases of fraud and mistake”).

21.2 Granting or refusing permission.59 The permission stage filters out judicial review claims (a) whose grounds are not properly arguable with a realistic prospect of success, (b) which lack materiality under the statutory HL:NSD (highly likely: not significantly different) test, or (c) in respect of which it is appropriate to refuse permission on the basis of a ‘discretionary bar’ (such as delay, prematurity or an alternative remedy). 21.2.1 Permission is a filter.60 Knibbs v HMRC [2019] EWCA Civ 1719 [2020] 1 WLR 731 at §25 (“the requirement for permission … is no more than a filter to weed out groundless cases”); R v Secretary of State for Trade and Industry, ex p Eastaway [2000] 1 WLR 2222, 2227H (Lord Bingham: “The requirement of permission to apply for judicial review is imposed primarily to protect public bodies against weak and vexatious claims”); R v SSHD, ex p Cheblak [1991] 1 WLR 890, 901C-D (“a filter to exclude cases which are unarguable”). 58The

equivalent paragraph in a previous edition was relied on in Re Turkington [2014] NIQB 58 at §57 (Treacy J). equivalent paragraph in a previous edition was relied on in Sharma v Antoine [2006] UKPC 57 [2007] 1 WLR 780 at §14(4) (Lord Bingham and Lord Walker); Omagh DC v MOH [2004] NICA 10 at §5 (Nicholson LJ); Welsh [2009] JCA 145C at §12 (Beloff JA); Bisson [2017] JRA 156 at §9 (Anderson JA); Scott [2020] JRC 095 (Jersey Royal Court) at §6. 60The equivalent paragraph in a previous edition was relied on in Enfield BC v SSH [2009] EWHC 743 (Admin) at §9 (Geraldine Andrews QC). 59The

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THE NATURE OF JUDICIAL REVIEW

21.2.2 Permission is a protection. S v Knowsley Borough Council [2004] EWHC 491 (Fam) [2004] 2 FLR 716 at §72 (permission as “a safeguard” which “protects [public authorities] against having to spend time in dealing with points that are not arguable … the judicial review procedure provides an appropriate sieve in the public interest”); R (Cleeland) v Criminal Cases Review Commission [2019] EWHC 1175 (Admin) at §85 (permission protects the defendant against being sucked into judicial review proceedings which detract from its role and impact on its resources); De Smith, Judicial Review of Administrative Action (1st edition, 1959) at 320 (“the preliminary stage affords … a substantial safeguard against liability to contest unfounded challenges …”). 21.2.3 Burden of defending proceedings not a reason to refuse permission. R (Mencap) v Parliamentary & Health Service Ombudsman [2010] EWCA Civ 875 at §27 (Richards LJ: “The commitment of time and money is a problem for any public authority defending judicial review proceedings. It is not a good reason for refusing permission to apply in a case that otherwise merits it”). 21.2.4 Permission is a judicial duty. R (Al Rabbat) v Westminster Magistrates’ Court [2017] EWHC 1969 (Admin) [2018] 1 WLR 2009 at §27 (“permission is required to bring proceedings for judicial review and the court has a duty to determine the issue of permission”); R v Social Security Commissioner, ex p Pattni (1993) 5 Admin LR 219, 223G (claimant must satisfy judge at permission stage that there is a basis for seeking judicial review; judge not entitled to grant permission without such an issue being identified); {21.2.12} (granting permission based on public importance alone). 21.2.5 Permission is an expeditious perusal. R (Wilson) v Prime Minister [2019] EWCA Civ 304 [2019] 1 WLR 4174 at §68 (Hickinbottom LJ: “The whole purpose of requiring permission to be obtained would be defeated if the court were to go into the matter in depth at that stage, the proper place for full exploration of the evidence and argument ordinarily being at the substantive hearing of the claim which has been shown to be arguable at the permission stage”); R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166 [2008] 1 WLR 878 at §§11-12 (permission as an expeditious perusal, not a full exploration of evidence or argument). 21.2.6 Permission: need for caution and proportionality. Peerless Ltd v Gambling Regulatory Authority [2015] UKPC 29 at §24 (refusal of permission as a “terminating decision”, to be “exercised with considerable caution and in a proportionate way”). 21.2.7 Permission stage: complexity/volume of material. R v Local Government Commission for England, ex p North Yorkshire County Council 11 March 1994 unreported (Laws J: judge’s task is “essentially the same whether the papers are few or voluminous, whether the putative issues are simple or complex: there should be no greater tendency to grant [permission] in the latter class of case than the former”); R v London Docklands Development Corporation, ex p Frost (1997) 73 P & CR 199, 204 (“it is not to be assumed that there is an arguable point simply because a number, even a large number, of different points are raised and expanded upon at length in skeleton arguments and in oral argument. The approach of ‘never mind the quality, feel the width’ has no application in these proceedings”); cf R (Elgizouli) v SSHD [2020] EWHC 2516 (Admin) at §8 (“Notwithstanding the length of this judgment, we have reached the clear view that this claim for judicial review is not arguable”). 21.2.8 Arguability test: an arguable ground with a realistic prospect of success.61 Sharma v Antoine [2006] UKPC 57 [2007] 1 WLR 780 at §14(4) (Lord Bingham and Lord Walker: “the court will refuse [permission] to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy”); Attorney-General of Trinidad and 61The

equivalent paragraph in a previous edition was relied on in Taylor Fladgate & Yeatman [2014] JRC 064 at §25 (Commissioner Clyde-Smith).

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Tobago v Ayers-Caesar [2019] UKPC 2 at §2 and Maharaj v Petroleum Company of Trinidad and Tobago Ltd [2019] UKPC 21 at §3 (Lord Sales (in both cases): “The threshold for the grant of [permission] to apply for judicial review is low … an arguable ground for judicial review which has a realistic prospect of success”); Simone v Chancellor of the Exchequer [2019] EWHC 2609 at §112 (whether “a point exists which merits investigation at a full hearing with all parties represented and with all relevant evidence and arguments on the law”); Administrative Court: Judicial Review Guide (2020 edition) at §8.1.3. 21.2.9 Refusing permission: HL:NSD test. Administrative Court: Judicial Review Guide (2020 edition) at §8.1.4 (“Even if a case is thought to be arguable, the judge must refuse permission if the judge considers that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred”); {4.1.2} (HL:NSD test at the permission stage). 21.2.10 Whether defendant/interested party has a ‘knock-out blow’.62 R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 [2006] 1 WLR 1260 at §43 (purpose of summary grounds including “to draw attention to any ‘knock-out points’ or procedural bars”); R (Mencap) v Parliamentary & Health Service Ombudsman [2010] EWCA Civ 875 at §15 (granting permission for judicial review, where the defendant’s submissions “may or may not succeed at the end of the day”, but where “they do not include what amounts … to a knockout blow”). 21.2.11 Cart claim: the test for permission for judicial review. {2.3.8} 21.2.12 Granting permission based on public importance alone. R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §265 (“We grant permission … to apply for judicial review in light of the public importance of the issues raised”); R (Gentle) v Prime Minister [2006] EWCA Civ 1078 at §23 (CA granting permission for judicial review, not on grounds of real prospect of success, but because of importance of the issues); cf R (Al Rabbat) v Westminster Magistrates’ Court [2017] EWHC 1969 (Admin) [2018] 1 WLR 2009 at §27 (“the requirement of permission obliges us to form a view on the prospects of success of any claim, even where, as in the present case, the legal question is one of general public importance”). 21.2.13 Arguability: precedent fact/objective fact. R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748 (position where issue is one of precedent fact) at §§9, 26 (“the court should ask whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing”). 21.2.14 Whether prospect of success at higher altitude. R (Al Rabbat) v Westminster Magistrates’ Court [2017] EWHC 1969 (Admin) [2018] 1 WLR 2009 at §16 (DC approaching arguability for judicial review, where claimant wishing to challenge correctness of reasoning in HL decision, by asking “whether there is any prospect that the Supreme Court would decide that the reasoning was wrong or no longer applicable”), §28 (court “not simply required to leave the matter as an issue for decision by the Supreme Court”). 21.2.15 Refusing permission for lack of standing. Senior Courts Act 1981 s.31(3) (“the court shall not grant [permission] to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates”); Administrative Court: Judicial Review Guide (2020 edition) at §8.1.6; {38.3.3} (standing as a procedural bar at the permission stage: ‘busybodies’). 21.2.16 Refusing permission for delay. Administrative Court: Judicial Review Guide (2020 edition) at §8.1.5; {26.1.15} (delay issues at the permission stage); {26.3} (extension of time); {P26} (delay).

62The

equivalent paragraph in a previous edition was relied on in Volaw [2013] JCA 239 at §32; Taylor Fladgate [2014] JRC 064 at §43.

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21.2.17 Refusing permission because of alternative remedy. {36.3.11} (alternative remedy as a basis for refusing permission); {36.3.12} (alternative remedy as a permission-stage issue); {P36} (alternative remedy). 21.2.18 Refusing permission because the claim has become academic. Administrative Court: Judicial Review Guide (2020 edition) at §8.1.6; {4.5} (utility: hypothetical/academic issues). 21.2.19 Refusing permission because of non-reviewability. R v Chief Rabbi, ex p Wachmann [1992] 1 WLR 1036, 1037H (unarguable as to reviewability); {21.2.24} (permission stage: resolving a question of jurisdiction substantively). 21.2.20 Refusing permission because of claimant’s lack of candour. R (I) v SSHD [2007] EWHC 3103 (Admin) at §10 (Court entitled to refuse permission, in an appropriate case, for breach of claimant’s candour duty); Peerless Ltd v Gambling Regulatory Authority [2015] UKPC 29 at §24 (need for caution and proportionality where lack of candour). 21.2.21 Refusing permission because of claimant’s default. R (Koyama) v University of Manchester [2007] EWHC 1868 (Admin) (permission would have been refused in any event for deliberate failure to serve defendant under CPR 54.7). 21.2.22 Permission refused because relief would be refused. R (Champion) v North Norfolk District Council [2015] UKSC 52 [2015] 1 WLR 3710 at §66 (Lord Carnwath: “the court considering an application for permission to bring judicial review proceedings should have regard to the likelihood of relief being granted, even if an irregularity is established”); R (Rhodes) v Kingston upon Hull City Council [2001] ELR 230 (permission refused because court would not give a remedy in the exercise of its discretion). 21.2.23 Refusing permission as a matter of discretion in an ‘unmeritorious case’. R (Firdaws) v First Tier Tribunal (Immigration and Asylum Chamber) [2019] EWCA Civ 1310 [2020] Imm AR 115 at §§45-46 (since permission, like relief, is an exercise of discretion, court can refuse to prevent claimant being able to take advantage of an absurdity flowing from the drafting of a statutory instrument, in an unmeritorious case). 21.2.24 Permission stage: resolving a question of jurisdiction substantively. Ex p Scott [1998] 1 WLR 226, 229F (resolving issue as to whether challenge constituting “charity proceedings” for which Court having no jurisdiction absent authorisation from the Charity Commissioners or the Chancery Division); R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 WLR 669 (deciding no jurisdiction to review Parliamentary Commissioner for Standards). 21.2.25 Permission stage: resolving a point of law/principle substantively. R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415, 418 (Laws J: “cases occasionally arise where the question whether [permission] should be granted involves substantial issues of principle”); Hutton v Criminal Injuries Compensation Authority [2016] EWCA Civ 1305 [2017] ACD 20 at §14 (CA granted permission for judicial review, identifying error of law, but remitting substantive hearing for UT to decide materiality: [2012] EWCA Civ 806); Rashed Masoud Al-Zagha v SSHD [1994] Imm AR 20, 26 (Andrew Leggatt LJ: “in the same way that the court, on an application … for summary judgment, will consider any point of law or construction, if it can readily deal with and dispose of the matter by reference to that question, so it seems to me should the court approach an application for [permission]”); R v Attorney-General, ex p Rockall [2000] 1 WLR 882 (dealing with issue as to applicability of statutorily reversed burden of proof); R (SPCMA SA) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2610 (Admin) (Court granting final declaration at permission stage on one statutory interpretation issue on which parties were now agreed); Attorney-General of Trinidad and Tobago v Ayers-Caesar [2019] UKPC 2 at §2 (Lord Sales: “if a court were confident at the [permission] stage that the legal position was entirely clear and to the effect that the claim could not succeed, it would usually be appropriate for the court to dispose of the matter at that stage”). 304

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21.2.26 Procedural flexibility: turning permission hearing into substantive hearing. R (Persimmon Homes (Thames Valley) Ltd) v North Hertfordshire District Council [2001] EWHC Admin 565 [2001] 1 WLR 2393 at §2 (dealing with point of construction by treating permission as substantive hearing); R (Noble Organisation) v Thanet District Council [2004] EWHC 2576 (Admin) [2005] Env LR 513 at §33 (treating the hearing as the substantive hearing in the interests of justice, despite the claimant’s refusal to consent to that course); R (Browning) v Lewes Crown Court [2012] EWHC 1003 (Admin) at §17 (Wyn Williams J: “technically, the hearing … was reconvened as a permission hearing. However, we have the benefit of full argument, both oral and written. In these circumstances it seems to me to be appropriate to treat the hearing … as a ‘rolled-up’ hearing of the application for judicial review. On that basis I would grant the Claimant an order directing the Crown Court to state a case”); 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); cf R (Suny) v SSHD [2019] EWCA Civ 1019 (CA on permission appeal deciding that Secretary of State’s decision irrational), §47 (remitting to UT in the expectation that the decision, which “cannot be defended”, would be quashed), §56 (“the effect of our reasoning is that the decision … will have to be quashed”). 21.2.27 Enhanced arguability test. R (Federation of Technological Industries) v Commissioners of Customs and Excise [2004] EWHC 254 (Admin) at §8 (Lightman J: “The orthodox approach is to give permission to apply for judicial review if the claimant shows an arguable case. But the court in the exercise of its discretion whether to give permission may impose a higher hurdle if the circumstances require this. Factors of substantial importance in this context may include the nature of the issue, the urgency of resolution of the dispute and how detailed and complete is the argument before the court on the application for permission”) (CA is at [2004] EWCA Civ 1020); Mass Energy Ltd v Birmingham City Council [1994] Env LR 298, 307-308, 310-311, 318 (CA adopting a deliberately heightened threshold of whether the claim was “strong”, ie “likely to succeed”; rather than whether it was “arguable”, because it had seen extensive material and heard detailed argument, and speed reasons applied); R v London Docklands Development Corporation, ex p Frost (1997) 73 P & CR 199, 203 (suggesting that Mass Energy approach appropriate where “the court was satisfied that it had heard as much argument and dealt with the matter in as much depth as was normally likely at a substantive hearing”); R v Cotswold District Council, ex p Barrington (1998) 75 P & CR 515 (Keene J: “where the court seems to have all the relevant material and have heard full argument at the [permission] stage … [i]t may then require [a claimant] to show a reasonably good chance of success”); R v Derbyshire County Council, ex p Woods [1998] Env LR 277, 280-281 (as “a discretionary matter”, CA adopting “an approach that is somewhere between” showing “a reasonable prospect of success” and the Mass Energy test); R v Northampton Borough Council, ex p Northampton Rapid Transit System 10 July 2000 unreported (applying Woods); R (Johnson) v Professional Conduct Committee of Nursing & Midwifery Council [2008] EWHC 885 (Admin) at §124 (three-day permission hearing “as full a hearing as there would have been had permission been granted”, so would have been a “classic case for the application of the modified test for permission”); R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §262 (declining to apply an ‘enhanced arguability’ approach at a rolled-up hearing). 21.2.28 Granting limited permission/conditional permission. Administrative Court: Judicial Review Guide (2020 edition) at §8.2.4.1; CPR 1.4(1), (2)(b)(c) (“(1) The court must further the overriding objective by actively managing cases.(2) Active case management includes – … (b) identifying the issues at an early stage; (c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others”); CPR 54.12(1)(b) (describing the position“where the court, without a hearing – … (b) gives permission to proceed – (i) subject to conditions; or (ii) on certain grounds only”); CPR PD54PA §9.1 (referring to: “An order … giving [permission] subject to conditions or on certain grounds only”); {21.5.4} (conditions on grant of permission for judicial review); R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin) [2020] QB 478 at §35 (permission limited to three grounds); R (Just for Kids Law) v SSHD 305

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[2019] EWHC 1772 (Admin) [2019] 4 WLR 97 at §§7, 40 (permission limited to specified grounds); R (Hudson) v Royal Borough of Windsor and Maidenhead [2019] EWHC 3505 (Admin) at §5 (permission limited); (J1) v Special Immigration Appeals Commission [2018] EWHC 3193 (Admin) [2019] 1 WLR 2594 at §3 (judge granting permission on two grounds and directing that permission on a third be considered on a ‘rolled-up’ basis at the substantive hearing); R v London Borough of Hammersmith, ex p CPRE London Branch [2000] Env LR 532 (permission given in respect of one challenged decision but refused as to another); {22.4.14} (limited permission: renewal of refused ground at substantive hearing); {23.1.14} (permission-stage appeal: grant of limited permission by CA). 21.2.29 Permission to appeal from the judge who refused permission for judicial review? Glencore Energy UK Ltd v HMRC [2017] EWHC 1587 (Admin) at §13 (Green J, concluding that the High Court judge refusing permission for judicial review has no jurisdiction to grant permission to appeal against that refusal); R (Defending Christian Arabs) v Guildford Magistrates’ Court [2020] EWHC 1850 (Admin) at §§39-42 (refusing permission to appeal).

21.3 Totally without merit (TWM) certification. If the Court considers the application for permission for judicial review to be ‘totally without merit’, this is certified in the order refusing permission. TWM-certification is approached with caution. The paper permission stage involves no right of reply to the AOS/summary grounds of resistance. Certification on the papers means there can be no oral renewal hearing in the Administrative Court. There is still the opportunity to apply to the Court of Appeal for permission to appeal, but only in civil cases. 21.3.1 TWM certification: CPR 23.12. CPR 23.12 (“If the court dismisses an application (including an application for … permission to apply for judicial review) and it considers that the application is totally without merit – (a) the court’s order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order”); Administrative Court: Judicial Review Guide (2020 edition) at §8.3. 21.3.2 TWM certification on paper permission: no High Court renewal hearing. CPR 54.12(7) (“Where the court refuses permission to proceed and records the fact that the application is totally without merit in accordance with rule 23.12, the claimant may not request that decision to be reconsidered at a hearing”); R (Imbeah) v Willesden Magistrates’ Court [2016] EWHC 1760 (Admin) [2018] 4 WLR 3. 21.3.3 TWM certification: recourse to the CA (civil cases). R (Buckley) v Bath and North East Somerset Council [2018] EWHC 1551 (Admin) [2019] PTSR 335 at §8 (permission for judicial review refused on the papers and certified TWM, but permission granted by the CA on appeal); {23.2.5} (appeal in criminal cause or matter). 21.3.4 Cautious approach to TWM on paper permission: general. Kearney v Chief Constable of Hampshire [2019] EWCA Civ 1841 [2019] 4 WLR 144 at §58 (TWM “an objective question that depends on a determination that the application [is] bound to fail”), §59 (“the value of an oral renewal hearing lies in the opportunity it affords for a claimant to address perceived weaknesses in his or her claim which have led the judge to refuse permission on the papers. The judge should only certify the application as TWM if satisfied that in the circumstances of the particular case a hearing could not serve such a purpose. Where there is any real doubt, the claimant should get the benefit of it”), applying R (Grace) v SSHD [2014] EWCA Civ 1091; {19.3.20} (claimant’s permission stage reply). 21.3.5 TWM certification at renewed oral permission hearing. R (Webster) v Secretary of State for Exiting the European Union [2018] EWHC 1543 (Admin) [2019] 1 CMLR 8 at §25 (renewed application for permission for judicial review of mode of decision to withdraw from the EU certified as TWM); R (Al-Ali) v Brent LBC [2018] EWHC 3634 (Admin) at §§22-23 (TWM certification made at failed oral permission hearing, where claimant showed consistently to have lied, so that TWM could be taken into account if appropriate in future litigation). 306

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21.3.6 Cautious approach to TWM on paper permission: criminal cause or matter. Thakrar v CPS [2019] EWCA Civ 874 [2019] 1 WLR 5241 at §46 (since TWM certification in a ‘criminal cause or matter’ means a judicial review claim “conclusively determined by way of only one stage of judicial decision making … which … may be on the papers only”, therefore: “in a criminal cause or matter, a single judge in considering an application for permission to apply on the papers should be particularly chary in certifying as totally without merit”); R (Imbeah) v Willesden Magistrates’ Court [2016] EWHC 1760 (Admin) [2018] 4 WLR 3 (no renewal in a TWM-certified criminal cause or matter). 21.3.7 Procedural rigour: TWM should not be routinely pleaded. R (K (A Child)) v SSHD [2018] EWHC 1834 (Admin) [2018] 1 WLR 6000 at §104 (Helen Mountfield QC: “The ‘totally without merit’ provisions were introduced to save court time in respect of cases which were obviously hopeless or abusive. … Far too often, however, acknowledgements of service are received on behalf of this defendant which invite the judge considering permission to dismiss the claim as being ‘totally without merit’ when that is clearly not the case”), §105 (“In a case where the Secretary of State does not consider an argument obviously hopeless or abusive – even if she does not consider that it crosses the arguability threshold – what should be pleaded is that the defendant does not accept the claimant’s case is arguable”), §107 (“It devalues the concept of a case being ‘totally without merit’ if it is pleaded as a matter of course. Indeed, it may be an abuse of process to assert this in circumstances where it is apparent that a point is arguable. … [T]he Secretary of State should not as a matter of routine pleading invite judges to certify cases as being totally without merit. If a defendant wishes to plead that a case is totally without merit, as opposed to wrong, she should be prepared to say why that is the case”). 21.3.8 Setting aside TWM certification. R (Gregory) v Thames Magistrates’ Court [2019] EWHC 2125 (Admin) at §43 (court having “inherent jurisdiction” to set aside TWM certification “but only in exceptional circumstances where it is necessary to avoid real injustice”).

21.4 Directing a rolled-up hearing. A rolled-up hearing is a single composite hearing, of permission for judicial review and the substantive hearing, rolled-into one, for which the parties need to prepare to deal with all issues. It is a popular option. Virtues include: (a) dealing with cases efficiently; (b) fast-tracking cases needing expedition; (c) keeping all issues open. Keeping all issues open can protect the defendant/interested party against a grant of permission foreclosing on the later re-evaluation, in the round, of a ‘permissionstage’ issue (eg promptness and extension of time). Where limited permission is granted and the refused ground renewed to the substantive hearing that is, on that ground, also a rolled-up hearing. 21.4.1 Rolled-up hearing. Administrative Court: Judicial Review Guide (2020 edition) at §8.2.6.2 (“Permission adjourned to a rolled-up hearing. The judge has made no determination on the application for permission. Instead the application for permission will be considered in Court with the substantive hearing to follow immediately if permission is granted”), §8.2.6.3 (“When preparing documentation for a rolled-up hearing the parties should apply the same rules as apply when preparing for a substantive hearing (see chapter 9 of this Guide). This is because, despite the fact that permission has not yet been granted or refused, substantive consideration of the application for judicial review will, if appropriate, take place on the same day. Thus, the documentation before the Court should be the same as if the hearing was the substantive hearing”), §8.2.6.4 (“Where a rolled-up hearing is ordered the claimant will be asked by the ACO to sign an undertaking to pay the fee for the substantive application for judicial review which would then become payable if the judge later grants permission”); R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) at §2 (Flaux LJ and Saini J describing “a rolled-up hearing”); Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §41 (describing “a rolled-up hearing”); R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697 at §3. 307

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21.4.2 Procedural approach taken on a rolled-up hearing. R (Clarke) v Holliday [2019] EWHC 3596 (Admin) [2020] ACD 33 at §2 (appropriate to “hear all of the submissions on the parties on permission and on the substance of the claim, rather than deal with permission as a preliminary matter”); R (FDA) v Minister for the Cabinet Office [2018] EWHC 2746 (Admin) at §3 (rolled-up hearing “proceeded effectively as a full substantive judicial review”); Administrative Court: Judicial Review Guide (2020 edition) at §8.2.6.2 (“In practice, at the rolled-up hearing, the judge will not necessarily consider permission then the substantive hearing one after another formulaically. The judge is more likely to hear argument on both points together and give a single judgment, but the manner in which the hearing is dealt with is within the discretion of the judge”). 21.4.3 Origins of the ‘rolled-up’ hearing. These go back at least as far as R v Department of Trade and Industry, ex p Alba Radio Ltd 30 November 2000 unreported at §5 (Nigel Pleming QC: “On 18th April 2000, Mr Justice Jackson directed that the application for permission be stood over for hearing together with the substantive argument, as a ‘rolled up’ hearing”), referring to R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 341B-F (describing situation where permission “adjourned to the substantive hearing” so all delay issues fall for determination), 347F-348A; {21.4.5} (rolled-up hearing: keeping all delay issues open). 21.4.4 Rolled-up hearing in action: recent illustrations. R (McCourt) v Parole Board [2020] EWHC 2320 (Admin) at §5; R (Shaw) v Secretary of State for Education [2020] EWHC 2216 (Admin) at §6; R (Boulting) v HMRC [2020] EWHC 2207 (Admin) at §1; R (Deputy Chief Constable of Kent Police) v Chief Constable of Kent Police [2020] EWHC 2099 (Admin) at §5; R (Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC 1546 (Admin) [2020] ACD 84 at §1; R (Bank Renewables Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 606 (Admin) [2020] 4 WLR 84 at §1; R (Hughes) v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin) at §81; R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) at §2; R (Terra Services Ltd) v National Crime Agency [2020] EWHC 1640 (Admin) at §2; R (Badmus) v SSHD [2020] EWCA Civ 657 at §§27-28; R (Williams) v Caerphilly County Borough Council [2020] EWCA Civ 296 [2020] PTSR 1130 at §17; R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §4; R (Flores) v Southwark LBC [2020] EWHC 1279 (Admin) at §1; R (HCP (Hendon) Ltd) v Chief Land Registrar [2020] EWHC 1278 (Admin) at §2; R (FNM) v DPP [2020] EWHC 870 (Admin) [2020] 2 Cr App R 17 at §1; R (A) v South Kent Coastal CCG [2020] EWHC 372 (Admin) at §6; Ross v Secretary of State for Transport [2020] EWHC 226 (Admin) [2020] PTSR 799 at §6; Begum v Special Immigration Appeals Commission [2020] EWCA Civ 918 at §3; R (British Medical Association) v Secretary of State for Health and Social Care [2020] EWHC 64 (Admin) [2020] Pens LR 10 at §6; R (Terra Services Ltd) v National Crime Agency [2020] EWHC 130 (Admin) [2020] 1 WLR 1149. 21.4.5 Rolled-up hearing: keeping all delay issues open. Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §41 (“open to the judge to … order a ‘rolled-up hearing’ … [where] full consideration can be given to issues of extension of time, prejudice and detriment, on the basis of evidence filed by the parties”); Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §66 (“In a case where the single judge considering permission on the papers wishes to leave the question of delay open to the substantive hearing, … the better course is to say so expressly and then to order a ‘rolled-up’ hearing, rather than to grant permission”); R (Ben Hoare Bell Solicitors) v Lord Chancellor [2015] EWHC 523 (Admin) [2015] 1 WLR 4175 at §47 (Beatson LJ and Ouseley J: “A court may decide to [order a rolledup hearing] … because there is a latent delay point in what is otherwise an arguable case and the court or the defendant … or exceptionally an interested party … wishes to preserve their position on delay”); R (Peters) v Haringey LBC [2018] EWHC 192 (Admin) [2018] PTSR 1359 at §6 (rolled-up hearing directed, “not least because of the significant delay issues”);

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R (McCarthy and Stone Retirement Lifestyles Ltd) v Mayor of London [2018] EWHC 1202 (Admin) [2018] PTSR 1996 at §5 (rolled-up hearing where defendant raising delay); R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 341B-F (describing situation where permission “adjourned to the substantive hearing” so all delay issues fall for determination), 347F-348A; {26.1.18} (permission judge: acting to keep all delay issues open); {26.1.17} (delay issues at the substantive hearing: s.31(6) only). 21.4.6 Virtues of a rolled-up hearing in a case calling for expedition. R (Ben Hoare Bell Solicitors) v Lord Chancellor [2015] EWHC 523 (Admin) [2015] 1 WLR 4175 at §47 (“A court may decide to [order a rolled-up hearing] where expedition is needed … or where the whole case just needs to be managed to a rapid conclusion”); R (Bank Renewables Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 606 (Admin) [2020] 4 WLR 84 at §1 (rolled-up hearing directed because of urgency); cf R (Tarmac Aggregates Ltd) v Secretary of State for Environment, Food and Rural Affairs [2015] EWCA Civ 1149 [2016] PTSR 491 at §1 (Sales LJ, explaining that CA dealt with a substantive appeal on a ‘rolled-up’ basis – permission to appeal with the substantive appeal to follow – “for reasons of expedition”); R (Elgizouli) v SSHD [2020] EWHC 2516 (Admin) at §5 (rolled-up hearing “because of its urgency”). 21.4.7 Rolled-up hearing: sensible use of court time. R (Ben Hoare Bell Solicitors) v Lord Chancellor [2015] EWHC 523 (Admin) [2015] 1 WLR 4175 at §47 (Court may order rolledup hearing where “It is … apparent that a permission hearing of the usual length of half an hour would not suffice, yet by the time a half day or more has been set aside to resolve arguability in a document heavy case … the whole case would be nearing resolution. Yet to conclude that the case was arguable only for most of the argument to be repeated on another day before another judge for want of an hour or two would be a complete waste of time”). 21.4.8 Rolled-up hearing for a ‘criminal cause or matter’: Divisional Court. Thakrar v CPS [2019] EWCA Civ 874 [2019] 1 WLR 5241 (discussing use of Divisional Court in judicial review of criminal cause or matter) at §§42, 45 (substantive hearing ordinarily heard by a DC), §47 (paper judge adjourning permission into open court should consider whether to direct DC, and should normally so direct in any case involving a “rolled-up hearing”); {23.2.2} (criminal cause or matter). 21.4.9 Rolled-up hearing: CA/SC. R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1004 at §8 (“expedited ‘rolled-up’ hearing – so that if permission to appeal or to apply for judicial review were granted, the appeal or the claim for judicial review would follow immediately. … [T]hree things made it appropriate here: first, the Divisional Court had given ‘comprehensive reasons’ for refusing permission to apply for judicial review, and if permission were now granted, the claim would likely be retained in this court; second, the timetable was ‘tight’ …; and third, there was ‘considerable public interest in the case’”); Edenred (UK Group) Ltd v HM Treasury [2015] UKSC 45 [2015] PTSR 1088 at §5 (Lord Hodge: “The challenge came before this court as an application for permission to appeal. As the matter required a prompt determination, the court heard both the application for permission to appeal and also the substantive appeal at the same time”). 21.4.10 Case-management conference prior to rolled-up hearing. R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) (CMC, prior to rolled-up hearing). 21.4.11 Arguability threshold for grant of permission at a rolled-up hearing. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §264 (conventional arguability test applicable to permission at a rolled-up hearing). 21.4.12 Limited permission: renewal of refused ground at substantive hearing. {22.4.14} 21.4.13 Judicial review of refusal to state a case: direction for substantive challenge. {21.5.13}; {3.2.15}. 309

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21.5 Permission-stage case-management/directions. The permission stage is an important case-management opportunity: to deal with ancillary issues and applications; to make directions for the ongoing conduct of the proceedings. In accordance with the duty of cooperation, the claimant’s claim form (N461) and a defendant/interested party’s AOS (N462) should address the question of suitable directions so that the permission judge can actively case-manage the proceedings if permission for judicial review is granted. 21.5.1 Anonymity order. CPR 39.2(4)(5) (“(4) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness. (5) Unless and to the extent that the court otherwise directs, where the court acts under paragraph (3) or (4), a copy of the court’s order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order”); R (EA) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin) at §§92-96 (Dame Victoria Sharp P and Garnham J, discussing the applicable principles), §103 (anonymity ordered to vulnerable teenagers); R (Yalland) v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin) [2017] ACD 49 at §21 (Lloyd Jones LJ and Lewis J: “any such exception to the principle of open justice must be strictly justified as turning on necessity”), §23 (“Whether a departure from the principle of open justice is justified in any particular case will be highly fact-specific and will require a balancing of the competing rights and interests. The starting point must be that in a Parliamentary democracy subject to the rule of law, a person who wishes to bring a public law challenge to the conduct of the Government on the ground that it is unlawful should normally be expected to do so openly and to identify himself or herself in the process”), §24 (“Any exception to the principle of open justice will have to be shown to be strictly necessary in order to protect the interests of the administration of justice. The burden of establishing any derogation from the general principle rests on the party seeking it. It must be established by clear and cogent evidence”), §26 (“However, members of the public should be able to bring a legal challenge such as the present without an objectively justified fear as to the possible repercussions for their or their families’ safety”), §40 (“the restrictions on reporting … are the least restrictive means of avoiding the risk to the Claimants whilst allowing the fullest possible public debate of the important issues in this case”); R (McKenzie) v Leeds Crown Court [2020] EWHC 1867 (Admin) [2020] 4 WLR 106 at §55 (anonymity order unnecessary); Dulgheriu v Ealing LBC [2018] EWHC 1302 (Admin) [2018] ACD 73 at §31 (anonymity granted for period in run up to hearing); R (Ideal Carehomes (Number One Ltd)) v Care Quality Commission [2018] EWHC 886 (Admin) [2018] ACD 42 at §48 (anonymity refused); National Crime Agency v A [2018] EWHC 2603 (Admin) [2018] ACD 132 (anonymity order discharged as not necessary); R (T) v HM Senior Coroner for West Yorkshire [2017] EWCA Civ 318 at §59 (anonymity “requires cogent justification”); R (AB) v Northumbria Healthcare NHS Foundation Trust [2020] EWHC 2287 (Admin) at §2 (anonymity under s.39 Children and Young Persons Act 1933); R (D) v DPP [2017] EWHC 1768 (Admin) [2017] ACD 106 at §3 (anonymity under Sexual Offences (Amendment) Act 1992 s.1); R (EL) v Essex County Council [2017] EWHC 1041 (Admin) [2017] PTSR 1000 at §1 (anonymity under Children Act 1989 s.97); R (C) v Secretary of State for Justice [2016] UKSC 2 [2016] 1 WLR 444 at §§36, 40 (approach to anonymity in cases of mental health patient); In re Guardian News and Media Ltd [2010] UKSC 1 [2010] 2 AC 697 (anonymity orders not justified here); R (Kambadzi) v SSHD [2011] UKSC 23 [2011] 1 WLR 1299 at §§6-7 (discussing anonymity and balancing of rights and interests); SSHD v AP (No 2) [2010] UKSC 26 [2010] 1 WLR 1652 (continuing anonymity to protect individual’s and family’s human rights). 21.5.2 Direction restricting access to documents from court records. CPR 5.4C(4)-(6) (“(4) The court may, on the application of a party or of any person identified in a statement of case – (a) order that a non-party may not obtain a copy of a statement of case under paragraph (1); (b) restrict the persons or classes of persons who may obtain a copy of a statement of case; (c) order that persons or classes of persons may only obtain a copy of a statement of case if it is 310

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edited in accordance with the directions of the court; or (d) make such other order as it thinks fit. (5) A person wishing to apply for an order under paragraph (4) must file an application notice in accordance with Part 23. (6) Where the court makes an order under paragraph (4), a non-party who wishes to obtain a copy of the statement of case, or to obtain an unedited copy of the statement of case, may apply on notice to the party or person identified in the statement of case who requested the order, for permission”); {19.2.17} (public access to documents from the court records). 21.5.3 Direction as to litigation friend: claimant a child/protected party. CPR 21.2(1)-(3) (“(1) A protected party must have a litigation friend to conduct proceedings on his behalf. (2) A child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under paragraph (3). (3) The court may make an order permitting a child to conduct proceedings without a litigation friend”); CPR 21.1(2)(a)-(d) (“(a) ‘the 2005 Act’ means the Mental Capacity Act 2005; (b) ‘child’ means a person under 18; (c) ‘lacks capacity’ means lacks capacity within the meaning of the 2005 Act; (d) ‘protected party’ means a party, or an intended party, who lacks capacity to conduct the proceedings”); R (Parkinson) v HM Senior Coroner for Kent [2018] EWHC 2173 (Admin) (court deciding whether claimant having capacity to conduct the judicial review litigation); R (Raqeeb) v Barts Health NHS Trust [2019] EWHC 2976 (Admin) (unsuccessful application for removal of litigation friend). 21.5.4 Conditions on grant of permission for judicial review. {21.2.28} (granting limited permission/conditional permission); R v Ministry of Agriculture Fisheries and Food, ex p British Pig Industry Support Group [2000] EuLR 724 at §108 (where claimant unincorporated, appropriate for court to make permission conditional on adequate costs provision, such as joinder of a co-claimant); R v East Sussex County Council, ex p Ward (2000) 3 CCLR 132 at §37 (permission granted on condition that remedy be limited to a particular period in time, given considerations of delay). 21.5.5 Orders for costs. {18.3} (costs and the permission stage). 21.5.6 Applications once the claim has commenced. Administrative Court: Judicial Review Guide (2020 edition) at §12.7. 21.5.7 Directions: general rules. CPR 54.10(1)(2) (“Where permission to proceed is given the court may also give directions. (2) Directions under paragraph (1) may include – (a) a stay of proceedings to which the claim relates; (b) directions requiring the proceedings to be heard by a Divisional Court”); CPR PD54A §§8.1-8.2 (“8.1 Case management directions under rule 54.10(1) may include directions about serving the claim form and any evidence on other persons. 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”); {19.2.9} (claim form (Form N461): prescribed contents, including claimant’s requested directions); {19.3.18} (AOS: include application for directions). 21.5.8 Typical directions when permission granted on the papers. Administrative Court: Judicial Review Guide (2020 edition) at §9.1.3 (typical directions), §9.1.4 (standard directions applicable otherwise). Author’s note – typical directions in an order granting permission for judicial review on the papers are: “(1) The defendant and any other person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve detailed grounds for contesting the claim or supporting it on additional grounds and any written evidence, within 35 days of service of this order. (2) Any reply and any application by the claimant to lodge further evidence must be lodged within 21 days of the service of detailed grounds for contesting the claim. (3) The claimant must file and serve a trial bundle not less than 4 weeks before the date of the hearing of the judicial review. (4) The claimant must file and serve a skeleton argument not less than 21 days before the date of the hearing of the judicial review. (5) The defendant and any interested party must file and serve a skeleton argument not less than 14 days before the date of the hearing of the judicial review. The claimant must file an agreed bundle of authorities, not less than 3 days before the date of the 311

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hearing of the judicial review. (6) If permission has been granted on some grounds but refused on others, you may request that the decision to refuse permission be reconsidered at a hearing by filing and serving a completed form 86B within 7 days of the service on you of this order. The reconsideration hearing will be fixed in due course. However, if all parties agree – and time estimates for substantive hearing allow – the reconsideration hearing may take place immediately before the substantive hearing. The Administrative Court Office must be notified within 21 days of the service and filing of form 86B that the parties agree to this course. (7) Listing Directions: (i) The application is to be listed for [x] mins/hour(s); the parties to provide a written time estimate within 7 days of service of this order if they disagree with this direction. (ii) Case not suitable for hearing by a Deputy High Court Judge [if appropriate]. (iii) Criminal case not suitable for hearing by a Single Judge [if appropriate]. (iv) Directions as to venue [if applicable].” 21.5.9 Direction for substantive hearing by Divisional Court. CPR 54.10(1)(2)(b) (“(1) Where permission to proceed is given the court may also give directions. (2) Directions under paragraph (1) may include – … (b) directions requiring the proceedings to be heard by a Divisional Court”). 21.5.10 Direction for stay of subject-matter proceedings. CPR 54.10(1)(2)(a) (“(1) Where permission to proceed is given the court may also give directions. (2) Directions under paragraph (1) may include – (a) a stay of proceedings to which the claim relates …”). 21.5.11 Grant of interim remedy. {P20} 21.5.12 Direction for a rolled-up hearing. {21.4} 21.5.13 Judicial review of refusal to state a case: direction for substantive challenge. R (Chief Constable of South Yorkshire Police) v Crown Court at Sheffield [2020] EWHC 210 (Admin) at §2 (permission judge granting “permission to challenge directly the conclusions of the crown court … without the need for the matter to be referred back to the crown court to state a case”, referring to Skelton [2007] EWHC 3118); R (Golding) v Maidstone Crown Court [2019] EWHC 2029 (Admin) [2019] 1 WLR 5939 at §3 (on judicial review of Crown Court refusal to state a case, permission judge “ordering that the claim continue as a challenge to the court’s decision on the substantive issues”); {3.2.15} (judicial review of refusal to state a case: deciding the substantive issue (Sunworld)). 21.5.14 Permission stage: permission to amend the claim/grounds. Administrative Court: Judicial Review Guide (2020 edition) at §6.10 (amending the claim or grounds before the Court considers permission), §6.10.1 (“If the claimant wishes to file further evidence, amend or substitute the Claim Form or claim bundle, or rely on further grounds after they have been served, then the claimant must apply for an order allowing them to do so. To apply, the claimant must make an application in line with the interim applications procedure”); CPR 17.1 (“(1) A party may amend his statement of case at any time before it has been served on any other party. (2) If this statement of case has been served, a party may amend it only (a) with the written consent of all the other parties; or (b) with the permission of the court”); CPR 54.15 (“The court’s permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed”); R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297 at §35 (“In judicial review proceedings, the statement of facts and grounds can be amended without permission prior to their service, but at any time thereafter, permission to amend is required”); cf R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) (CMC prior to a rolled-up hearing) at §9 (“Since permission to apply for judicial review has not yet been granted, the claimants would seem to be right that permission to amend is not required as CPR 54.15 only applies to applications to amend Grounds after permission to apply for judicial review has been granted in respect of existing grounds … [but] to the extent necessary, we gave permission to amend”); R (Kombou) v Wood Green Crown Court [2020] EWHC 1529 (Admin) §§1, 57 (grounds were amended, by permission of Yip J, as the judge granting permission for judicial review); R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 312

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(Admin) [2018] PTSR 142 at §91 (in granting permission for judicial review, Sales LJ “also granted permission to amend the grounds upon which judicial review was sought to take account of events occurring subsequent to the decision of Cranston J [refusing permission in the High Court]”). 21.5.15 Direction for a CMC/PII hearing. Administrative Court: Judicial Review Guide (2020 edition) at §6.1.2 (“Unlike a number of other civil and criminal proceedings the judicial review process does not incorporate a case management conference (although a CMC may be ordered by a judge if considered necessary)”); R (Terra Services Ltd) v National Crime Agency [2019] EWHC 1933 (Admin) at §1 (pre-permission case-management conference (CMC), to deal with issues relating to disclosure and public interest immunity); R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) at §2 (CMC, prior to rolled-up hearing, to decide issues of disclosure and permission to adduce expert evidence); R (Jordan) v Chief Constable of Merseyside Police [2020] EWHC 2274 (Admin) at §35(a) (Chamberlain J: “Where the court grants permission to apply for judicial review … and it is clear that the [defendant] has claimed or will claim PII over material relevant to the challenge, it should also give directions for: (i) a hearing to determine the PII claim; and (ii) a substantive hearing to determine the application for judicial review. If possible, these two hearings should be listed before the same judge”). 21.5.16 Direction linking cases. CPR 3.1(2)(g)(h) (“Except where these Rules provide otherwise, the court may … (g) consolidate proceedings; (h) try two or more claims on the same occasion”); R (Badmus) v SSHD [2020] EWCA Civ 657 at §27 (judge ordering that proceedings be linked and listed together for hearing); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §§7-11 (three linked claims heard together). 21.5.17 Directions for expedition/abridgement. CPR 3.1(2)(a) (“(2) Except where these Rules provide otherwise, the court may – (a) … shorten the time for compliance with any rule, practice direction or court order”); Administrative Court: Judicial Review Guide (2020 edition) at §15.2.9 (“In cases where an expedited substantive hearing is sought, the Court may abridge time for service of the defendant’s Acknowledgement of Service and request the defendant’s views on the order sought, to enable the Court to take an early view on permission and any consequential case management directions”); Channel Tunnel Group v Secretary of State for Transport [2019] EWHC 419 (TCC) (application for expedited trial granted); cf R (Jones) v Metropolitan Police Commissioner [2019] EWHC 2957 (Admin) [2020] 1 WLR 519 at §6 (urgent expedited hearing “not … possible … on a basis that was fair to both parties in such a short time scale”: see [2019] EWHC 3001 (Admin) at §8). 21.5.18 Direction for hearing of a preliminary issue. CPR 3.1(2)(i)(l) (“(2) Except where these Rules provide otherwise, the court may – … (i) direct a separate trial of any issue; (j) decide the order in which issues are to be tried; (k) exclude an issue from consideration; (l) dismiss or give judgment on a claim after a decision on a preliminary issue”); {22.4.18} (trial of a preliminary issue in judicial review). 21.5.19 Direction for cross-examination/further information/disclosure. {17.4} (oral evidence/cross-examination in judicial review); {17.5} (disclosure/further information in judicial review); R (Rasheed) v SSHD [2015] EWHC 2052 (Admin) [2015] ACD 130 at §14 (“the parties should consider at the permission stage whether there should be directions for cross-examination”); R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin) [2014] ACD 26 at §§1, 68 (disclosure order made when granting permission); R (Good Law Project Ltd) v HMRC [2019] EWHC 3125 (Admin) (casemanagement ruling on whether proposed disclosure by defendant lawful). 21.5.20 Direction/ruling regarding expert evidence. {17.6} (expert evidence in judicial review); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §§44-49 (importance of parties raising promptly issues as to reliance on expert evidence). 21.5.21 Direction for hearing in private. CPR 39.2(1)-(3) (“(1) The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’ 313

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consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3). (2) In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected. (2A) The court shall take reasonable steps to ensure that all hearings are of an open and public character, save when a hearing is held in private. (3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice – (a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any child or protected party; (e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing; (f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or (g) the court for any other reason considers this to be necessary to secure the proper administration of justice”); Taveta Investments Ltd v Financial Reporting Council [2018] EWHC 1662 (Admin) at §43 (part of hearing in private); R (Grace Bay II Holdings Sarl) v Pensions Regulator [2017] EWHC 7 (Admin) [2017] ACD 32 at §§4-8 (permission hearing in private because of statutorily recognised “restricted information”, but judgment in public); R (C) v Financial Services Authority [2012] EWHC 1417 (Admin) (hearing held in private, and full judgment provided only to the parties, in confidence); Bank Mellat v HM Treasury [2013] UKSC 38 [2014] AC 700 at §2 (strict necessity and absolute minimum); {59.5.11} (HRA:ECHR Article 6: public hearing/judgment in public); {7.1.11} (constitutional principle: the open justice principle). 21.5.22 Directions for confidentiality/a confidentiality ring. R (Clarke) v Holliday [2019] EWHC 3596 (Admin) [2020] ACD 33 at §4 (“confidentiality ring” established, “to protect, for the benefit of certain parties …, the confidentiality of and/or claim of privilege in certain documents submitted as evidence”); R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §53 (referring to “cases in which a ‘confidentiality ring’ is commonplace”); CMA v Concordia International RX (UK) [2018] EWCA Civ 1881 [2019] 1 All ER 699 at §52 (“the (undoubtedly invaluable) use of confidentiality rings is designed to be in respect of managing sensitive commercial information and not material covered by PII”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010 at §74 (confidential materials and submissions provided within a confidentiality ring); R (Roche Registration Ltd) v Secretary of State for Health [2015] EWCA Civ 1311 [2016] 4 WLR 46 at §6 (Court making a confidentiality order in respect of certain documents before it). 21.5.23 Directions relating to public interest immunity. {17.1.14} (public interest immunity); R Hafeez) v Southwark Crown Court [2018] EWHC 954 (Admin) [2018] ACD 46 (order requiring claimant to destroy copies of PII material inadvertently disclosed by police); {21.5.15} (direction for a CMC/PII hearing); {22.4.22} (closed material procedure). 21.5.24 Order for security for costs. CPR 25.12 (security for costs), CPR 25.13 (conditions to be satisfied), CPR 25.14 (security for costs other than from the claimant); R (We Love Hackney Ltd) v Hackney LBC [2019] EWHC 1007 (Admin) at §64 (£60,000 security for costs order); R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin) [2014] ACD 26 at §57 (security for costs refused); R (Residents Against Waste Sites Ltd) v Lancs County Council [2007] EWHC 2558 (Admin) at §20 (£25,000 agreed as security for costs); R v Leicestershire County Council, ex p Blackfordby & Boothorpe Action Group Ltd [2001] Env LR 2 at §37 (where action group incorporated at the time of the challenge (or for the purpose of bringing it), appropriate to address costs position by means of security for costs; here £15,000); R v Westminster City Council, ex p Residents Association of Mayfair [1991] COD 182 (security for costs ordered where corporate claimant unlikely to be able to pay costs, and highly likely that resources could be found by those who were behind the application); R v Hammersmith and Fulham LBC, ex p People Before Profit Ltd (1981) 45 P & CR 364 (had permission been granted, court would have awarded security for costs); 314

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cf Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 [2017] ICR 1327 at §6 (Libya not permitted to pursue appeal to SC because failure to comply with SC order for security for costs); {18.1.27} (claimant incorporating for the litigation/costs-protection); {38.1.7} (legal incapacity/unincorporated associations). 21.5.25 Protective costs order/costs capping order. {18.4.8}-{18.4.17} 21.5.26 Permission to intervener: person to be heard with permission. CPR 54.17; {22.2.4} (interveners: other persons heard with permission); {22.2} (third party participation). 21.5.27 Open justice directions. R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin) [2019] EMLR 393 at §30 (statutory prohibition preventing direction for live-streaming of judicial review hearing on the internet) §31 (however, arrangements made for transmission to an overflow court, and daily transcripts). 21.5.28 Direction as to suitability for judge from another Division. R v Dover Magistrates’ Court, ex p Kidner [1983] 1 All ER 475 and R (P and Q) v SSHD [2001] EWCA Civ 1151 [2001] 1 WLR 2002 (direction as to suitability of cases for Family Division judges). 21.5.29 Directions as to venue. CPR PD54D §5.4 (“The court may on an application by a party or of its own initiative direct that the claim be determined in a region other than that of the venue in which the claim is currently assigned. The considerations in paragraph 5.2 apply”); {22.4.4} (venue: regionalisation). 21.5.30 Direction for transfer out of the Administrative Court. {27.3.12} (powers of transfer); CPR 54.20 (“Transfer. 54.20 The court may (a) order a claim to continue as if it had not been started under this Section; and (b) where it does so, give directions about the future management of the claim. (Part 30 (transfer) applies to transfers to and from the Administrative Court)”); CPR 30; Administrative Court: Judicial Review Guide (2020 edition) at §5.7 (procedure where procurement judicial review linked to claim in TCC); R (Carter) v Chelmsford Crown Court [2019] EWHC 1484 (Admin) at §33 (transfer of judicial review challenge to Crown Court’s refusal to state a case to CPR Part 8 claim against the police and Secretary of State); R (Oxford Study Centre Ltd) v British Council [2001] EWHC Admin 207 [2001] ELR 803 (where defendant not amenable to judicial review but implied contractual duty of fairness and no need for cross-examination, court treating case as transferred to ordinary action and granting a declaration); R (Arthurworry) v Haringey LBC [2001] EWHC Admin 698 (no reference to transfer, but court simply proceeding to consider issues by reference to private law (relationship of trust and confidence) where matter not amenable to judicial review); R (SW) v SSHD [2018] EWHC 2684 (Admin) [2019] 1 WLR 2193 at §§16-17 (although historic damages claims more suitably pursued in QBD or county court, judicial review for declaration and damages permitted to continue in Admin Court, the defendant not having sought transfer out); {17.3.6} (fact-resolution and transfer out of the Administrative Court); R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin) at §§48-49 (transfer out available in principle where defendant not amenable to judicial review); R (West) v Lloyds of London [2004] EWCA Civ 506 [2004] 3 All ER 251 at §41 (not appropriate to transfer out, since claimant would need to “entirely reshape his case so as to identify the private law causes of action”; “he will have to begin again”); cf R (Garbet) v Circle 33 Housing Trust [2009] EWHC 3153 (Admin) at §89 (where breach of duty to consult sheltered accommodation resident, arising from tenancy agreement, Court granting the declaration that would have been granted in private proceedings; not necessary therefore to consider further whether “public law claim” or “private law claim”): {2.2.13} (transfer from High Court to UT). 21.5.31 Striking out a judicial review claim. {22.1.15} (application for strike out/dismissal). 21.5.32 Reasons for rulings given on the papers. R (Parveen) v Redbridge LBC [2020] EWCA Civ 194 [2020] 4 WLR 53 at §42 (speaking in the context of costs determinations on paper: “a judge … is entitled to express his reasons shortly … Judges dealing with … paper 315

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applications will have many cases to consider on any given day. For rulings to become too elaborate or formulaic … would be contrary to the interests of justice”). 21.5.33 Civil restraint order/civil proceedings order. {21.3} (totally without merit (TWM) certification); CPR PD3C (civil restraint orders); Senior Courts Act s.42 (civil proceedings order); Administrative Court: Judicial Review Guide (2020 edition) at §4; Chief Constable of Avon and Somerset Constabulary v Gray [2019] EWHC 1954 (QB) at §§11-15 (legal framework applicable to general civil restraint orders); R (Gregory) v Thames Magistrates’ Court [2019] EWHC 2125 (Admin) at §73 (extended civil restraint order granted); R (Ewing) v Isleworth Crown Court [2019] EWHC 288 (Admin) [2019] 2 Cr App R 9 at §5 (statutory permission to bring proceedings granted). 21.5.34 Directions dispensing with service on interested parties. {22.2.29} (persons directed affected: curtailment).

316

P22 The substantive stage. At the substantive hearing the Court decides whether any ground for judicial review has been established and, if so, whether to grant a remedy. 22.1 Matters/steps arising post-permission 22.2 Third party participation 22.3 Substantive disposal without a hearing 22.4 The substantive hearing

22.1 Matters/steps arising post-permission. Following the grant of permission, the parties take steps required by the rules and any directions given by the Court, so that the case is properly prepared for fair and efficient resolution at the substantive hearing (if still needed). The main events are that the defendants and participating third parties – acting in discharge of their duty of candour – file and serve their detailed grounds, accompanied by written evidence, to which the claimant may seek to reply. In the run up to the substantive hearing, the parties file hearing and authorities bundles and skeleton arguments. High standards of procedural rigour are expected from all parties. 22.1.1 Post-permission fee. CPR 3.7(1)(d) (fee payable after permission granted); Administrative Court: Judicial Review Guide (2020 edition) at §9.1.4.1; R (DPP) v Stratford Magistrates’ Court 22 March 2017 unreported (Lloyd Jones LJ and Nicola Davies J) and R (Muir) v Wandsworth LBC 23 March 2017 unreported (Ouseley J), in each case granting relief from sanctions when claim struck out (CPR 3.7(4)(b)(i))) for non-payment of the fee within the prescribed seven days. 22.1.2 Cart claim: defendant/interested party letter of response to PJR (14 days). {2.3.10}; {2.3.11} (Cart claim: disposal on the papers). 22.1.3 Limited permission: claimant’s renewed application for substantive hearing. {22.4.14} (limited permission: renewal of refused ground at substantive hearing). 22.1.4 Procedural rigour: defendant’s ongoing duty of re-evaluation. R (N) v North Tyneside Borough Council [2010] EWCA Civ 135 [2010] ELR 312 (criticising defendant for conceding that decision unlawful, for the first time at the hearing in the CA) 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”). 22.1.5 Defendant/third party’s detailed response/evidence (35 days post-permission). See CPR 54.14(1) (“(1) A defendant and any other person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve – (a) detailed grounds for contesting the claim or supporting it on additional grounds; and (b) any written evidence, within 35 days after service of the order giving permission”); CPR PD54A §10.1 (“Where the party filing the detailed grounds intends to rely on documents not already filed, he must file a paginated bundle of those documents when he files the detailed grounds paginated bundle of further materials relied on”); R (Ministry of Defence) v Wiltshire & Swindon Coroner [2005] EWHC 889 (Admin) [2006] 1 WLR 134 at §44 (Collins J: “there is an obligation on the defendants to put in a detailed statement of the grounds of defence. That will supersede an Acknowledgment of Service, although nowadays it often seems to be the case, and it is understandable why it should be, that the Acknowledgment of Service effectively will stand as grounds of defence”); R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 246 (Admin) (detailed grounds a “defence” to which public entitled from the court records); {10.4} (defendant/interested party’s duty of candour); {22.2} (third party participation).

THE NATURE OF JUDICIAL REVIEW

22.1.6 Procedural rigour/flexibility: late defendant’s grounds/relief from sanctions. R (ES) v SSHD [2017] EWHC 3224 (Admin) [2018] ACD 20 (where defendant seeking to put forward grounds of defence four working days before substantive hearing, relief from sanctions refused) at §53 (“against the background of the breach and total want of excuse for it and the very late hour for [the claimant] to martial a reply to new grounds, I would not in my discretion have extended time for detailed grounds or permitted [the defendant] to appear to take [the] point of law”); R (AT (Gambia) v SSHD [2017] EWHC 2714 (Admin) [2018] ACD 15 at §§10-16 (relief from sanctions refused, where defendant seeking to rely on detailed grounds provided the day before the substantive hearing, after failing to comply with the CPR and a court order extending time; substantive hearing continuing in the defendant’s absence); R (Kalah) v SSHD [2017] EWHC 2373 (Admin) [2017] ACD 128 (granting permission for defendant to participate despite non-compliance with rules and court orders, and granting an adjournment but ordering costs on an indemnity basis); R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin) at §35 (permission to participate granted), §152 (ordering costs on an indemnity basis); cf R (Idira) v SSHD [2015] EWCA Civ 1187 [2016] 1 WLR 1694 (late respondent’s notice in CA) at §81 (absent disruption or “real prejudice”, CA likely to “want to decide the appeal on a proper consideration of all relevant issues”, especially if “implications for other cases”); {3.1.14} (relief from sanctions (Mitchell/Denton) in judicial review). 22.1.7 Procedural rigour: claimant duty of re-evaluation in light of defendant’s materials. R (Bateman) v Legal Services Commission [2001] EWHC 797 (Admin) at §21 (endorsing this statement in the ACO standard form notifying the grant of permission: “Where permission to apply has been granted, claimants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the defendant’s evidence”; Munby J: “An applicant who has been granted permission to apply for judicial review nonetheless remains under an obligation to consider with care just which arguments ought and which arguments ought not to be pursued at the substantive hearing. Matters contained in the defendant’s acknowledgment of service or the defendant’s evidence may demonstrate that points which were initially thought by the claimant to have merit in fact do not. … The need for conscientious performance of this obligation has been pointed out on previous occasions. … People must appreciate that failure in this regard may be visited with adverse costs orders”); R v SSHD, ex p Brown The Times 6 February 1984 (“It is highly desirable for counsel and solicitors instructed by [a claimant] for judicial review to give further careful consideration on the merits of the application once they had received notice of the [defendant]’s evidence, even though [permission] to move for judicial review had already been obtained. If that were done, much time, expense and disappointment in the hearing of hopeless applications would be saved”), applied in R v Horsham District Council, ex p Wenman [1995] 1 WLR 680, 701D-E (“any solicitor or counsel holding themselves out as competent to handle judicial review proceedings … should be taken as being familiar with it. One of the reasons for the warning … is to avoid the wasting of time and incurring of expense in connection with hopeless applications”); R v Liverpool City Justices, ex p Price [1998] COD 453 (clear that legally aided challenge hopeless once defendant’s evidence filed; direction that judgment be sent to taxing authorities to decide whether to disallow wasted costs). 22.1.8 Procedural rigour: claimant’s duty of re-evaluation if circumstances change. R (Ben Hoare Bell Solicitors) v Lord Chancellor [2015] EWHC 523 (Admin) [2015] 1 WLR 4175 at §43 (“A claimant and his or her legal advisers are under a duty to reassess a claim in the light of information that has emerged after it was issued, whether in the acknowledgement of service or otherwise, and not to pursue if it is no longer viable”); R v Horseferry Road Magistrates, ex p Prophet [1995] Env LR 104, 112 (Schiemann J: “[Claimants] should bear in mind that judicial review is a discretionary remedy. This Court will not grant it when it will no longer achieve anything useful. … It is, therefore, advisable for [claimants] when they are given a hearing date to consider carefully whether or not it is sensible, in the light of intervening events and the passage of time, to continue to pursue the request for [a remedy]. If it is not, then whatever may have been the merits at the time of the application for [permission], an attempt should be made to come to terms with the [defendant] and to discontinue the proceedings”); R v SSHD, ex p Kekana [1998] Imm AR 136, 140 318

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(“severe criticism” of pursuit on legal aid of immigration judicial review to a hearing of the judicial review, notwithstanding that the claimant’s stay had been completed and she had left the UK); {5.4.5} (defendant agreeing to reconsider: whether to stay the current proceedings); {19.3.19} (claimant’s duty to re-evaluate after AOS). 22.1.9 Claimant’s pleaded reply. Standard directions for grant of permission for judicial review on the papers state: “Any reply and any application by the claimant to lodge further evidence must be lodged within 21 days of the service of detailed grounds for contesting the claim”; R (AW) v St George’s, University of London [2020] EWHC 1647 (Admin) at §47 (claimant “filed a reply to the detailed Grounds of Defence”); R (Ikram) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1869 (Admin) at §85 (no provision in the rules for a pleaded Reply, and any amendment to grounds for judicial review needing an application). 22.1.10 Claimant’s reply evidence. CPR 54.16(2) (“(2) No written evidence may be relied on unless – (a) it has been served in accordance with any – (i) rule under this Section; or (ii) direction of the court; or (b) the court gives permission”); Standard directions for grant of permission for judicial review on the papers state: “Any … application by the claimant to lodge further evidence must be lodged within 21 days of the service of detailed grounds for contesting the claim”; R (AW) v St George’s, University of London [2020] EWHC 1647 (Admin) at §§48-49 (parties agreed that reply evidence should be permitted); R (ZS) v SSHD [2019] EWHC 75 (Admin) at §75 (refusal to admit evidence which was “not reply evidence at all” but “new evidence introduced too late for the SSHD to respond within the time frame set for the hearing”). 22.1.11 Post-permission/pre-hearing applications (Form N244). ACO Notice for Customers [2010] JR 98 (reminding Admin Court users of the need to use Practice Form N244 application notices, and to pay the requisite fee, for all applications made in the course of judicial review proceedings). 22.1.12 Request for oral reconsideration after ruling on paper on an interlocutory application. R (Liberty) v Prime Minister [2019] EWCA Civ 1761 [2020] 1 WLR 1193 (seeking to overturn refusal of expedition on paper) at §3 (“The ordinary course when seeking to reverse a decision made on paper in the Administrative Court is to seek an oral hearing rather than to appeal to the Court of Appeal”). 22.1.13 Application for closed material procedure (CMP) declaration. {22.4.22} (closed material procedure); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at §11 (application for a declaration that proceedings enable a closed material procedure application to be made to the court). 22.1.14 Venue: regionalisation. CPR PD54D §5.4 (“The court may on an application by a party or of its own initiative direct that the claim be determined in a region other than that of the venue in which the claim is currently assigned. The considerations in paragraph 5.2 apply”), §5.2 {22.4.4}. 22.1.15 Application for strike out/dismissal. Administrative Court: Judicial Review Guide (2020 edition) at §12.10.1.1 (strike out of a statement of case, referring to CPR 3.4(1)(c)); R (Humnyntskyi) v SSHD [2020] EWHC 1912 (Admin) at §148 (judicial review claim can in principle be struck out as an abuse of process), §§150, 154 (claim not an abuse of process even though issued in a false name); R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990 [2007] 1 WLR 536 at §65 (strike-out power extends to judicial review); R (Suleiman) v SSHD [2017] EWHC 3308 (Admin) [2018] ACD 18 (refusing to strike out 39 judicial review claims relating to British citizenship refusals to Somali claimants), §3 (Lang J: “Applications to strike out claims for judicial review will only be appropriate in exceptional cases. … The permission procedure enables a defendant to make written and sometimes oral representations against the grant of permission. A defendant ought to raise any allegation of abuse of process at [the] permission stage. The requirement for a grant of permission operates as an effective filter to weed out unmeritorious cases. Where permission has been granted, 319

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a defendant ought not to try to have a second bite of the cherry by applying to strike out the claim unless the grounds for strike out have only arisen after the date upon which permission was granted”); R (Lamot) v Secretary of State for Justice [2016] EWHC 2564 [2016] ACD 123 (judicial review claims struck out where they had become academic); 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); R (Uddin) v Leeds Crown Court [2013] EWHC 2752 (Admin) [2014] 1 WLR 1742 at §41 (permission judge striking out claim, rather than refusing permission, where satisfied that no jurisdiction pursuant to s.29(3) Senior Courts Act 1981); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57 [2006] 1 AC 529 (in judicial review proceedings, strike out application by defendant succeeding, there being no viable HRA damages claim); R (Price) v Snaresbrook Crown Court [2020] EWHC 496 (Admin) at §10 (judicial review claim struck out for non-compliance with ‘unless’ order as to service of interested party), §42 (refusing application for relief from sanctions where claim having no basis); R (Hillingdon LBC) v Secretary of State for Transport [2017] EWHC 121 (Admin) [2017] 1 WLR 2166 at §§35-37, 76 (judicial review claim struck out pursuant to CPR 3.4(2)(a) where no jurisdiction to entertain challenge to draft national policy statement, because statutory time-limit ouster commencing from designation or publication of finalised statement); R (Hassan) v SSHD [2019] EWHC 1288 (Admin) at §4 (strike-out application was refused); R (Eyers) v Uttlesford District Council [2009] EWHC 672 (Admin) (defendant successfully applying to dismiss claim, where the impugned planning notice had been withdrawn post-permission); R (Nine Nepalese Asylum Seekers) v Immigration Appeal Tribunal [2003] EWCA Civ 1892 at §15 (appropriate to strike out judicial review permission appeals where totally devoid of merit); R (Davies) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC 2762 (Admin) (judicial review struck out as manifestly an abuse of process, where claim relating to moribund company whose interests claimant had no authority to advance); cf Evans v First Secretary of State [2003] EWCA Civ 1523 [2004] Env LR 319 (summary judgment appropriate to dismiss an unarguable statutory review of a planning decision); {31.3.4} (unclean hands etc). 22.1.16 Late evidence: application for permission. CPR 54.16(2) (“(2) No written evidence may be relied on unless – (a) it has been served in accordance with any – (i) rule under this Section; or (ii) direction of the court; or (b) the court gives permission”); R (National Council for Civil Liberties) v SSHD (Procedural Matters) [2018] EWHC 976 (Admin) at §24 (defendant’s late evidence involves permission under CPR 54.16(2)(b), not relief from sanctions). 22.1.17 Procedural rigour: permission for late evidence. R (ZS) v SSHD [2019] EWHC 75 (Admin) at §75 (refusal to admit evidence which was “not reply evidence at all” but “new evidence introduced too late for the SSHD to respond within the time frame set for the hearing”); R (Sri Lalithambika Foods Ltd) v SSHD [2019] EWHC 761 (Admin) at §23 (refusal of permission to rely on evidence filed after court-ordered deadline); Teh v SSHD [2018] EWHC 1586 (Admin) [2018] 1 WLR 4327 at §39 (permission to adduce additional post-hearing evidence granted, insofar as “a response to a direction that I made at the hearing, requiring the defendant to clarify the dates and current status of a number of the documents on which the defendant relies”, but refused insofar as the evidence “went further”); R (Keep the Horton General) v Oxfordshire Clinical Commissioning Group [2019] EWCA Civ 646 (2019) 22 CCL Rep 69 at §49 (if late evidence to be admitted at substantive hearing, “the other parties [have] to be given the opportunity to make an adequate response” and adjournment may be “irresistible”); {17.2.11} (fresh evidence: evidence ordered by the court). 22.1.18 Procedural flexibility: permission for late evidence. R (National Council for Civil Liberties) v SSHD (Procedural Matters) [2018] EWHC 976 (Admin), §27 (defendant given permission for late evidence, by reference to ensuring fairness and the public interest); R (LXD) v Chief Constable of Merseyside [2019] EWHC 1821 (Admin) (permission for late evidence) at §34 (“it is in accordance with the overriding objective to admit such evidence so that all relevant evidence is before the Court, in circumstances where … it will not cause 320

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prejudice”), §37 (“it is important to have all the relevant evidence before the Court and … allowing evidence … is not going to cause prejudice”); R (FDA) v Minister for the Cabinet Office [2018] EWHC 2746 (Admin) at §6 (despite “significant failure by the defendant”, to file evidence within the time directed by the court, “the justice of the case favours admitting the evidence”, where “I do not consider that the delay has prejudiced the claimants” and “this is a public interest case” which “turns largely on facts”). 22.1.19 Application for interim relief made after claim filed. Administrative Court: Judicial Review Guide (2020 edition) at §15.8.1 (“If a claim has already been started and it becomes necessary to make an application for interim relief the party seeking interim relief should issue an application on Form N244 or PF244. If the application is urgent, the party should make that clear in the Application Notice and state the timescale within which the court is requested to consider the application. This should also be stated in any covering letter. The application must be served on all the other parties. The Court will only rarely consider the application if the opposing party has not been given an opportunity to respond to the application in writing”). 22.1.20 Application for disclosure, further information, cross-examination. Administrative Court: Judicial Review Guide (2020 edition) at §5.6.2 (application for disclosure), §10.2.2 (application for oral evidence)17; {17.4} (oral evidence/cross-examination in judicial review); {17.5} (disclosure/further information in judicial review). 22.1.21 HRA notice to the Crown. {12.2.2} 22.1.22 Claimant’s application for permission to amend judicial review grounds (JRG). CPR 54.15 (“The court’s permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed”); CPR PD54A §11.1 (“Where the claimant intends to apply to rely on additional grounds at the hearing of the claim for judicial review, he must give notice to the court and to any other person served with the claim form no later than 7 clear days before the hearing (or the warned date where appropriate)”); CPR 16PD §15.2 (“A party who seeks to amend his statement of case to include [a HRA claim] must, unless the court orders otherwise, do so as soon as possible”); Administrative Court: Judicial Review Guide (2020 edition) at §9.2. 22.1.23 Expansion of claim/permission to amend JRG: general. R (P) v Essex County Council [2004] EWHC 2027 (Admin) at §35 (Munby J: “the court will normally permit such amendments as may be required to ensure that the real dispute between the parties can be adjudicated upon”, but “incumbent on [claimant] (a) to seek permission to amend his N461, (b) to give notice of his wish to amend at the earliest possible moment and in any event no later than 7 clear days before the hearing and (c) to formulate the new or additional case he wishes to make in a properly drafted document setting out, in the manner and with the detail required by CPR Part 54.6 and by Form N461, the precise amendments for which he is seeking permission”); R v Institute of Chartered Accountants, ex p Bruce 22 October 1986 unreported (where substantial amendment, appropriate to apply same test as for permission to seek judicial review); R v Airport Coordination Ltd, ex p States of Guernsey Transport Board 16 October 1998 unreported (desirability of determining the real question; asking whether causing prejudice or lengthening the proceedings); R (007 Stratford Taxis Ltd) v Stratford on Avon District Council [2011] EWCA Civ 160 [2012] RTR 53 at §10 (issue in skeleton argument not raised too late, given operative decision challenged in claim form); R v SSHD, ex p Dinc [1999] INLR 256, 262A (situation where unsatisfactory that Secretary of State “never invited to address his mind (and so his evidence) to objections formulated on the wing”); R (Smith) v Parole Board [2003] EWCA Civ 1014 [2003] 1 WLR 2548 at §16 (“It is the obligation of parties to applications for judicial review, as in the case of oral litigation, to give as much notice as possible of their full case and to bring forward their full case at the start. However … there are going to be … situations where good sense makes it clear that the argument should be wider than it would otherwise be if it was confined to the grounds where permission has been granted”); {10.4.9} (defendant’s candour: beyond the pleaded case). 321

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22.1.24 Procedural rigour: amendment of claimant’s JRG. Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin) at §40 (Holgate J: “If a claimant wishes to rely upon a point which has not been pleaded in a claim for judicial review, by definition that is a point for which permission has not been granted, … an application must be made under CPR 54.15 to obtain the court’s permission to argue it”; “It is unacceptable for the matter to be dealt with informally (e.g. simply in a skeleton)”); R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin) at §83 (claimant should file “an application notice and a draft of the amendments sought”), §85 (“not a paragraph buried in a lengthy skeleton argument”), §88 (permission to amend refused where new ground unarguable); R (ZS) v SSHD [2019] EWHC 75 (Admin) at §§70-72 (declining to allow expansion of grounds where no adjournment sought, to the extent that unfair for defendant to have to deal); R (Cleeland) v Criminal Cases Review Commission [2019] EWHC 1175 (Admin) at §78 (permission to amend within two weeks of substantive hearing refused for delay and prejudice); R (Ikram) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1869 (Admin) at §85 (any amendment to JRG needs an application); PN v SSHD [2019] EWHC 1616 (Admin) at §62 (application for permission to amend should be accompanied by specific description of terms of proposed amendment); R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297 at §34 (important not to “give an applicant too much leeway to create confusion, by chopping and changing the basis of the judicial review claim, which would cause the respondent to run up unnecessary costs”); Dignity Funerals Ltd v Huntingdonshire District Council [2019] EWHC 2114 (Admin) at §30 (judge at substantive hearing insisting that altered ground should be “set out in writing” as an “amended ground”); R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) [2018] PTSR 26 at §30 (permission to amend to “raise a new ground of challenge” refused); Kotton v First Tier Tribunal (Tax Chamber) [2019] EWHC 1327 (Admin) at §8 (late application for permission to amend grounds at substantive hearing refused); R v Kent County Council, ex p C [1998] ELR 108, 119G-H (not permitting new point to be advanced; defendant not having had notice of it and the opportunity of answering it by evidence); R (M-P) v London Borough of Barking [2002] EWHC 2483 (Admin) [2003] ELR 144 at §29 (amendment refused because too late); R (Glenn & Co (Essex) Ltd) v HMRC [2010] EWHC 1469 (Admin) [2011] 1 WLR 1964 at §10 (refusing permission to rely on a further ground which could have been raised earlier, would require evidence in response, would turn on questions of fact and could be pursued on a private law claim); cf Gover v Propertycare Ltd [2006] EWCA Civ 286 [2006] 4 All ER 69 at §12 (makes a mockery of court’s pre-reading if parties come to court believing can advance wholly new case); {3.1.15} (procedural rigour: evidence and advocacy). 22.1.25 Procedural rigour: ‘rolling judicial review’ and amendment of JRG. {5.4} (‘rolling judicial review’); R (O) v Hammersmith and Fulham LBC [2011] EWCA Civ 925 [2012] 1 WLR 1057 at §18 (where impugned decision succeeded by a new decision, “the proper applications to amend have to be made and the pleadings put in order so that everyone knows in advance the nature of the case being made”); R (B) v Lambeth LBC [2006] EWHC 639 (Admin) (2006) 9 CCLR 239 at §37 (need for clarity and prompt amendment, so defendant and court can see exactly what decisions challenged, on what grounds and evidence, and what remedy sought). 22.1.26 Procedural flexibility: permission to amend JRG. R (Commissioner of Police for the Metropolis) v Police Medical Appeal Board [2020] EWHC 345 (Admin) at §§44, 75 (claim succeeding only on ground advanced in skeleton argument and for which permission to amend granted at substantive hearing); R (TN) v SSHD [2020] EWHC 481 (Admin) at §5 (permission to amend granted where no prejudice to defendant); Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §112 (permission to amend refused where: “It would not be fair to entertain a ground of challenge not advanced at any stage before the hearing (including in the skeleton argument) to which responsive evidence could in principle have been relevant”); Dignity Funerals Ltd v Huntingdonshire District Council [2019] EWHC 2114 (Admin) at §30 (judge at substantive hearing insisting that altered ground should be “set out in writing” as an “amended ground”, for which permission then granted, there being no disadvantage to the defendant); R (Ismail) v 322

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SSHD [2019] EWHC 3192 (Admin) [2020] ACD 18 at §§10-11 (permission to amend treated as not required where issue addressed in both parties’ skeleton arguments); R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871 at §3 (permission granted to amend grounds and adduce fresh evidence); R (Mitocariu) v Central and North West London NHS Trust [2018] EWHC 126 (Admin) [2018] PTSR 1287 at §15 (ordering claimant’s skeleton to stand as amended JRG, where defendant “able to deal with the matters”); R (Merida Oil Traders Ltd) v Central Criminal Court [2017] EWHC 747 (Admin) [2017] 1 WLR 3680 at §34 (permission to amend granted, to challenge seizure); R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297 at §57-64 (upholding permission to amend, where no significant issue of delay and no prejudice, albeit involving challenge to a new decision); R (M) v Chief Constable of Sussex [2019] EWHC 975 (Admin) [2019] ACD 67 at §10 (permission to amend grounds, arising out of defendant’s late disclosure); R (Ames) v Lord Chancellor [2018] EWHC 2250 (Admin) [2018] ACD 115 at §41 (permission to amend and adduce further evidence granted where “narrative and additional detail” together with a “new ground … plainly raised in correspondence”, “no real prejudice” and “no injustice”); R (British Homeopathic Association) v National Health Service Commissioning Board [2018] EWHC 1359 (Admin) [2018] PTSR 2031 at §97 (claimant permitted to argue additional ground identified in a note shortly before rolled-up hearing); R (W) v Secretary of State for Education [2011] EWHC 3256 (Admin) [2012] ELR 172 at §5 (Singh J: “the interests of justice would be served by permitting the claimant to advance all the grounds that he now wishes to, having had the opportunity to consider the evidence filed on behalf of the defendant. There has been no prejudice to the defendant, who was able to respond to all the arguments which the claimant wishes to pursue”); R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) at §12 (amendment allowed, arising out of defendant’s evidence and documents disclosed by it, and where issue important and arguable and would be unfair not to decide it); R v Tower Hamlets LBC, ex p Khalique (1994) 26 HLR 517, 521, 523, 527 (“fundamental” grounds arising “in the course of the proceedings” and court granting declarations sought by way of amendment); R v SSHD, ex p Benwell [1985] QB 554, 567C-D (no injustice from allowing amendment to include what had emerged as the most serious matter); R v Immigration Appeal Tribunal, ex p Syeda Khatoon Shah [1997] Imm AR 145 (Sedley J), 148 (“in the area of asylum law, potentially involving as it always does the right to life, the court ought not in my view to be difficult or rigid provided a sensible endeavour is being made to crystallise in serviceable form the legal issue thrown up by the evidence and findings”); cf Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54 [2019] PTSR 1406 at §§9-10 (flexibility to allow later amendment of grounds filed within the six-week limitation period for statutory review). 22.1.27 Permission to amend defendant’s grounds of opposition. R (Leighton) v Lord Chancellor [2020] EWHC 336 (Admin) [2020] ACD 50 at §73 (procedural rigour in pleading applicable to defendants), §§74-75 (permission to rely on defence as argued in skeleton argument and orally granted as being in the interests of justice); R (Purvis) v DPP [2018] EWHC 1844 (Admin) [2018] 4 WLR 118 at §54 (contrary to the interests of justice to give defendant permission to amend detailed grounds to raise “contentious and difficult issues without their having been properly identified at the appropriate stage of these proceedings, and without the claimant having had a fair opportunity to prepare his submissions on those issues”). 22.1.28 Substitution of claimant.63 CPR 19.2(4) (“The court may order a new party to be substituted for an existing one if – (a) the existing party’s interest or liability has passed to the new party; and (b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings”); R (SDR) v Bristol City Council [2012] EWHC 859 (Admin) at §16 (substitution of claimant permissible where original claimant had been bringing the claim for the benefit of a wider group), §32 (permission with extension

63The

equivalent paragraph in a previous edition was relied on in Re Dalton [2020] NICA 27 at §42 (Maguire J).

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of time appropriate for an identical fresh judicial review where previous claim had been discontinued); R v Secretary of State for the Environment, ex p Friends of the Earth (1995) 7 Admin LR 793, 794E-F (following death of individual claimant since hearing at first instance, CA granting permission for judicial review, refusing judicial review and granting permission to appeal to a replacement individual); R v Gloucestershire County Council, ex p Barry [1996] 4 All ER 421 (CA), 424c (substitution of daughter and RADAR, for deceased claimant); R v North West Leicestershire District Council, ex p Moses [2000] Env LR 443, 458 (“had the challenge from every other standpoint been soundly based, it would be unfortunate to have to reject it – rather, say, than substitute for Ms Moses another [claimant] who, as a resident of Kegworth, was equally concerned about the airport’s extension – merely because of Ms Moses’ move”); R v Richmond LBC, ex p Watson [2002] UKHL 34 [2002] 2 AC 1127 at 585D (substitution after death of named claimant); R (Beeson) v Dorset County Council [2002] EWCA Civ 1812 [2003] UKHRR 353 at §2 (personal representatives substituted for deceased claimant since issues affected his estate and were “of some general importance”); cf Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin) at §1 (defendant the statutory successor to the original defendant); {22.2.13} (joinder of parties); {22.2.15} (joinder as a defendant); {22.2.16} (joinder as a claimant). 22.1.29 Adjournment of the judicial review claim. R v Birmingham City Coroner ex p Najada The Times 5 December 1995 (applications for judicial review should be heard as quickly as reasonably practicable; incumbent upon defendant seeking an adjournment to justify it); R v London Borough of Newham, ex p Omo-Etiobio 3 March 1993 unreported (refusal to adjourn even though parties had agreed that course); R v Immigration Officer, ex p Quaquah [2000] INLR 196, 204A (adjournment of substantive application pending a strike out application in related private law proceedings); Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 [2002] QB 48 at §§28-30 (first-instance court may appropriately deal with HRA issues summarily and without adjourning for full materials, especially where an appeal is likely); R (Lloyd) v Dagenham LBC [2001] EWCA Civ 533 (2001) 4 CCLR 196 at §§3-5 (judicial review adjourned on basis of undertakings given to the Court, and then restored when dispute arising as to whether those undertakings had been breached); R (Davies) v HMRC [2008] EWCA Civ 933 at §7 (“if a tribunal of fact exists which can find the relevant facts it is normally good practice to postpone judicial review until after the facts have been found”). 22.1.30 Stay of the judicial review claim. Administrative Court: Judicial Review Guide (2020 edition) at §12.8 (applications for a claim to be stayed); R (C) v Secretary of State for Work and Pensions [2017] UKSC 72 [2017] 1 WLR 4127 at §16 (stay of judicial review so that DWP could review the relevant data-retention policies); Re Jordan’s Application for Judicial Review [2019] UKSC 9 [2019] HRLR 225 (approach to stays in Art 2 inquest-delay cases); R v University of Cambridge, ex p Evans [1998] ELR 515 (stay granted where no prospect of Court granting remedy to interfere with past decisions (to promote other individuals) and prospect of defendant taking steps, during the next round of promotions, to cure the legal problems identified in the grant of permission); R v Hammersmith and Fulham LBC, ex p Burkett [2001] Env LR 684 (CA) at §14 (“an arguably premature application can often be stayed or adjourned to await events”); cf Sparks v Harland The Times 9 August 1996 (stay pending outcome of European Court of Human Rights case: no reason why plaintiff should be required to ‘roll the ball back up the hill’ by starting proceedings all over again). 22.1.31 Stay of judicial review claim pending determination of a test case. R (Rama) v Immigration Appeal Tribunal [2003] EWHC 27 (Admin) at §6 (Maurice Kay J, explaining that judicial review court “often requested to stand-out cases which may be affected by pending appeals in higher courts”), §7 (court needing to be satisfied that “two criteria” met: “(1) that there is uncertainty as to the relevant law, which is likely to be resolved by a forthcoming decision of the higher court; and (2) that the facts of the case which it is sought to adjourn are such that the decision which is awaited is likely to be determinative or substantially affect the outcome of the present case”), §8 (no uncertainty as to the law where unequivocal and unanimous CA decision, notwithstanding pending petition to the HL); R v SSHD, ex p 324

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McQuillan [1995] 4 All ER 400, 426a-e (claim stayed pending outcome of CJEU references in Adams and Gallagher): {2.6.23} wide impact of a test case). 22.1.32 Interlocutory hearing: skeleton arguments/bundle. Administrative Court: Judicial Review Guide (2020 edition) at §17.1.3 (“Parties should … prepare skeleton arguments before any interlocutory hearing in the course of a judicial review …, even if the issue is straightforward”); §17.4.3 (“Skeleton arguments must be filed and served in good time before any hearing”), §18.2 (bundle of documents, in good time; at least 3 clear days; by 1pm the previous day in urgent matters). 22.1.33 Interpreter. Administrative Court: Judicial Review Guide (2020 edition) at §9.3. 22.1.34 Production of serving prisoner/detained person. Administrative Court: Judicial Review Guide (2020 edition) at §9.4. 22.1.35 Effect of fresh decision/offered reconsideration. {5.4} (‘rolling judicial review’). 22.1.36 Hearing bundle: 21 working days before hearing. CPR PD54A §16.1 (“The claimant must file a paginated and indexed bundle of all relevant documents required for the hearing of the judicial review when he files his skeleton argument”), §16.2 (“The bundle must also include those documents required by the defendant and any other party who is to make representations at the hearing”); Administrative Court: Judicial Review Guide (2020 edition) at §18.1.2 (“The Court expects to have a single bundle of documents for the judicial review which includes all the documents to which any party present at the hearing will refer. The bundle of documents should contain all relevant documents, including any documents required to be included by the defendant and any other party who is to make representations at the hearing”), §18.1.3 (“The Court does not expect to have documents handed up to it during the course of the hearing, save in exceptional circumstances (and always subject to the Court’s permission to adduce documents or evidence in that way)”), §18.3 (format of court bundles), §18.3.6 (“In cases where the documents are extensive … consideration should be given to including only the important and relevant parts of long documents in the Court bundle and not copying the whole of that document”); {17.1.5} (procedural rigour: argumentative, overburdensome and repetitive documents). 22.1.37 Cooperation: core bundle. Administrative Court: Judicial Review Guide (2020 edition) at §18.3.6 (“In cases where the documents are extensive (as a guideline, more than 500 pages), the parties should endeavour to agree a ‘core bundle’ of key documents”); Mayor of London v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1176 (Admin) at §169 (praising the parties for having been able to provide a 262-page core bundle which “provided virtually all the material needed for dealing with substantial challenges to two decisions … following a length public inquiry”); 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 §166 (core bundle filed); R (Bary) v Secretary of State for Justice [2010] EWHC 587 (Admin) at §147 (core bundle would have been useful). 22.1.38 Claimant’s skeleton argument: 21 working days before hearing. CPR PD54A §15.1 (“The claimant must file and serve a skeleton argument not less than 21 working days before the date of the hearing of the judicial review (or the warned date)”); {22.1.41} (contents of skeleton argument). 22.1.39 Defendant/third party’s skeleton argument: 14 working days before hearing. CPR PD54A §15.2 (“The defendant and any other party wishing to make representations at the hearing of the judicial review must file and serve a skeleton argument not less than 14 working days before the date of the hearing of the judicial review (or the warned date)”); {22.1.41} (contents of skeleton argument). 22.1.40 Procedural rigour: timetable for skeleton arguments. R (National Council for Civil Liberties) v SSHD (Procedural Matters) [2018] EWHC 976 (Admin) at §3 (late skeleton 325

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requiring permission, applying test as to relief from sanctions), §17 (ordering costs on an indemnity basis); Haggis v DPP [2003] EWHC 2481 (Admin) [2004] 2 All ER 382 at §30 (Brooke LJ, warning that Courts would be “likely in future to be very much less forbearing in relation to the late service of skeleton arguments”); §17.4.3 (“Skeleton arguments must be filed and served in good time before any hearing. That means that the skeleton argument must be filed and served on or before the date set by the Court, if directions are in place”), §17.4.4 (absent a rule or direction, two clear working days), §17.4.6 (“If the skeleton argument … is served late, the Court may refuse to permit the party in default to rely on the skeleton; alternatively, the Court may make an adverse costs order against the party in default”). 22.1.41 Contents of skeleton argument. Administrative Court: Judicial Review Guide (2020 edition) at §17.2 (contents of skeleton arguments), §17.3 (format of skeleton arguments); CPR PD54C §15.3 (“Skeleton arguments must contain: (1) a time estimate for the complete hearing, including delivery of judgment; (2) a list of issues; (3) a list of the legal points to be taken (together with any relevant authorities with page references to the passages relied on); (4) a chronology of events (with page references to the bundle of documents (see paragraph 16.1); (5) a list of essential documents for the advance reading of the court (with page references to the passages relied on) (if different from that filed with the claim form) and a time estimate for that reading; and (6) a list of persons referred to”); R (B) v Chief Constable of Derbyshire [2011] EWHC 2362 (Admin) at §98 (importance of skeleton including a cross-referenced chronology); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §47 (inappropriate for claimant’s skeleton to refer to expert evidence as though permission obtained to rely on it); {11.1} (use of precedent and authority). 22.1.42 Time estimate for substantive hearing. R (EG) v Parole Board [2020] EWHC 1457 (Admin) at §46 (time estimate “was woefully insufficient” and “the court had at no stage been asked to reconsider the time estimate”). 22.1.43 Bundles of authorities. {11.1.23} (procedural rigour/cooperation: bundles of authorities). 22.1.44 Hansard notice. Practice Direction [1995] 1 WLR 192 (“Any party intending to refer to any extract from Hansard in support of any such argument … must, unless the judge otherwise directs, serve upon all other parties and the court copies of any such extract together with a brief summary of the argument intended to be based upon such extract. … Unless the judge otherwise directs, service upon other parties to the proceedings and the court of the extract and summary of argument … shall be effected not less than five clear working days before the first day of the hearing … whether or not there is a fixed date”). 22.1.45 Summary costs schedule/statement. {18.1.30} (detailed assessment or summary assessment). 22.1.46 Public access to documents from the Court records. {19.2.17}

22.2 Third party participation.64 Judicial review rules and practice allow for involvement by third parties. They may be persons directly affected by the claim, entitled (absent a direction to the contrary) to be served and thus becoming a party to the proceedings. Or they may be other persons who are proper persons to be heard in the proceedings, as interveners, by permission of the Court. 22.2.1 Interested party (person directly affected): the rules. {19.1.10} (pre-claim notification of third parties); CPR 54.1(2)(f) (“‘interested party’ means any person (other than the claimant and defendant) who is directly affected by the claim”); CPR 54.6(1)(a) (“(1) In … the … contents of the claim form … the claimant must also state – (a) the name and address of any person he considers to be an interested party”); CPR 54.7(b) (“The claim 64The

equivalent paragraph in a previous edition was relied on in W v Registrar of Marriages [2010] 6 HKC 359 at §261 (Hon A Cheung J); QT v Director of Immigration [2017] HKCA 230 (Hong Kong Court of Appeal) at §4 (Hon Poon JA).

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form must be served on – … (b) unless the court otherwise directs, any person the claimant considers to be an interested party, within 7 days after the date of issue”); CPR 54.8(1) (“Any person served with the claim form who wishes to take part in the judicial review must file an acknowledgment of service in the relevant practice form in accordance with the following provisions of this rule”), CPR 54.8(4)(a)(ii) (“The acknowledgment of service – (a) must – … (ii) state the name and address of any person the person filing it considers to be an interested party”); CPR PD54A §8.5 (“Neither the defendant nor any other interested party need attend a hearing on the question of permission unless the court directs otherwise”); CPR 54.14(1) (“any … person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve – (a) detailed grounds for contesting the claim or supporting it on additional grounds; and (b) any written evidence, within 35 days after service of the order giving permission”); {23.2.10} (appeal by third party); {22.2.29} (persons directed affected: curtailment). 22.2.2 Party in subject-matter proceedings automatically an interested party. CPR PD54A §§5.1-5.2 (“Where the claim for judicial review relates to proceedings in a court or tribunal, any other parties to those proceedings must be named in the claim form as interested parties under rule 54.6(1)(a) (and therefore served with the claim form under rule 54.7(b)). 5.2 For example, in a claim by a defendant in a criminal case in the Magistrates or Crown Court for judicial review of a decision in that case, the prosecution must always be named as an interested party”); R (Davenport) v Parole Board [2018] EWHC 410 (Admin) [2018] 1 WLR 2003 (in judicial review of Parole Board, Secretary of State for Justice must always be named as an interested party pursuant to PD54A §5.1, whether or not the SSJ had made representations in the proceedings before the Parole Board). 22.2.3 Meaning of person ‘directly affected’. R v Rent Officer Service, ex p Muldoon [1996] 1 WLR 1103, 1105E (Lord Keith: “That a person is directly affected by something connotes that he is affected without the intervention of any intermediate agency”); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §63 (considering “directly affected” in the context of the Scottish rules); R v Legal Aid Board, ex p Megarry [1994] COD 468 (tobacco companies’ application, to be served with judicial review proceedings against Legal Aid Board’s decision refusing legal aid for personal injuries actions against them, refused); R v Seeboard Plc, ex p Guildford The Times 6 March 1998 (Seeboard Plc heard as a person directly affected); R v Monopolies and Mergers Commission, ex p Milk Marque Ltd [2000] COD 329 (Dairy Industry Federation not directly affected, unless and until reorganisation following one possible outcome in CJEU); R v Secretary of State for the Environment, Transport and the Regions, ex p Garland 10 November 2000 unreported at §8 (district auditor not a person directly affected); R (Fuller) v Chief Constable of Dorset Constabulary [2001] EWHC Admin 1057 [2003] QB 480 at §34 (wrong not to have named local authority as interested party in a case about police power to remove travellers from the local authority’s land); R (Telefonica O2 Europe plc) v Secretary of State for Business & Regulatory Reform [2007] EWHC 3018 (Admin) at §2 (H3G as a person directly affected); R (Mencap) v Parliamentary & Health Service Ombudsman [2010] EWCA Civ 875 at §§23-24 (individual doctors not interested parties in the light of the narrow issue and remedy formulated). 22.2.4 Interveners: other persons heard with permission. Administrative Court: Judicial Review Guide (2020 edition) at §2.2.4 (“In judicial review proceedings the Court retains a power to receive evidence and submissions from any other persons. Any person can apply, under CPR 54.17(1), to make representations or file evidence in judicial review proceedings. Potential interveners should be aware that any application must be made promptly and that there are costs considerations”); Criminal Justice and Courts Act 2015 s.87(1), (10)-(11) (describing as “an ‘intervener’”, for the purposes of costs, “a person … granted permission to file evidence or make representations in judicial review proceedings” but who not “a relevant party to the proceedings” having been served as a person “directly affected”); CPR 54.17 (“(1) Any person may apply for permission – (a) to file evidence; or (b) make representations at the hearing of the judicial review. (2) An application under paragraph (1) should be made 327

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promptly”); CPR PD54A §§13.1-13.5 (“Rule 54.17 – Court’s powers to hear any person. 13.1 Where all the parties consent, the court may deal with an application under rule 54.17 without a hearing. 13.2 Where the court gives permission for a person to file evidence or make representations at the hearing of the claim for judicial review, it may do so on conditions and may give case management directions. 13.3 An application for permission should be made by letter to the Administrative Court office, identifying the claim, explaining who the applicant is and indicating why and in what form the applicant wants to participate in the hearing. 13.4 If the applicant is seeking a prospective order as to costs, the letter should say what kind of order and on what grounds. 13.5 Applications to intervene must be made at the earliest reasonable opportunity, since it will usually be essential not to delay the hearing”); R (Crompton) v South Yorkshire Police and Crime Commissioner 1 March 2017 unreported (refusing an application to intervene, because the submissions would not assist on the narrow legal issue and would only increase the length of the proceedings and costs). 22.2.5 Interveners: ‘proper persons to be heard’. The pre-CPR RSC Order 53 r 9(1) provided for hearing a “proper” person to be heard, which moreover was framed as being heard “in opposition to” the claim. Examples were: R v Coventry City Council, ex p Phoenix Aviation [1995] 3 All ER 37, 51c (Compassion in World Farming appearing under Order 53 r 9(1)); R v Secretary of State for Foreign & Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892, 904C-D (Government of Canada); R v Broadcasting Complaints Commission, ex p Barclay (1997) 9 Admin LR 265 (whether or not BBC ought to have been served as a person directly affected, undoubtedly a proper person to be heard); R v Bow Street Metropolitan Stipendiary Magistrate, ex p South Coast Shipping Co Ltd [1993] QB 645, 651A-B (DPP heard under Order 53 r 9); R v Seeboard Plc, ex p Guildford The Times 6 March 1998 (Electricity Association heard as a proper person); R v Monopolies and Mergers Commission, ex p Milk Marque Ltd [2000] COD 329 & 330 (Dairy Industry Federation a proper person to be heard, and so entitled to copies of the papers lodged by the claimant with the Administrative Court, so as to be able to make informed representation); R v Secretary of State for the Environment, Transport and the Regions, ex p Garland 10 November 2000 unreported at §9 (district auditor a proper person to be heard). 22.2.6 Costs and interveners: 2015 Act s.87. {18.2.11}-{18.2.15} 22.2.7 Third party supporting the judicial review claim. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §8 (interveners supporting the claim; others opposing it); R (Bushell) v Newcastle Upon Tyne Licensing Justices [2004] EWHC 446 (Admin) at §1 (judicial review supported by 5 interested parties) (HL is [2006] UKHL 7 [2006] 1 WLR 496). The pre-CPR RSC Order 53 r 9 was limited to ‘opposing’ the claim, but there were several cases in which ways were found to permit such intervention: R v Independent Television Commission, ex p Virgin Television Limited [1996] EMLR 318 (other unsuccessful licence bidders permitted to intervene in support of the application, as persons “directly affected”); R v Secretary of State for the Environment, ex p Standley [1997] Env LR 589, 597 (NFU permitted to make written and oral submissions, with permission, in support of the application, “as an interested party”); R v Legal Aid Board, ex p Kaim Todner [1999] QB 966, 971D (Law Society permitted to make representations in support of claimant’s claim to anonymity, although not a “party”); R v Secretary of State for Health, ex p Eastside Cheese Company (1999) 11 Admin LR 254 (Moses J) (interested party appearing in support of grant of judicial review). 22.2.8 Interested party supporting the claim on additional grounds/evidence. CPR 54.14(1) (“(1) … any … person served with the claim form who wishes to … support [the claim] on additional grounds must file and serve – (a) detailed grounds for … supporting it on additional grounds; and (b) any written evidence, within 35 days after service of the order giving permission”); R (MM (Lebanon)) v SSHD [2017] UKSC 10 [2017] 1 WLR 771 at 775D-F, 776F (nephew joined as interested party, successfully advancing “additional grounds”); R (British Bankers Association) v Financial Services Authority [2011] EWHC 999 (Admin) at §11 (claimant adopting as their third ground an additional ground which had been raised by interested party); Hampshire County Council v Secretary of State for 328

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Environment, Food and Rural Affairs [2020] EWHC 959 (Admin) [2020] 2 P & CR 16 at §13 (interested party’s submissions “raised broader, rather more fundamental questions”); cf R (McVey) v Secretary of State for Health (No 2) [2010] EWHC 1225 (Admin) at §§13-16 (Court concluding, but evidently without being referred to CPR 54.14(1), that no jurisdiction to deal with an independent and discrete claim raised by interested party against the defendant). 22.2.9 Interested party participation where defendant a non-appearing court/tribunal. R (Morris) v Woolwich Magistrates’ Court [2005] EWHC 781 (Admin) at §29 (emphasising that CPS should be more proactive in appearing in judicial review cases where defendant court not appearing, especially where an allegation of unfairness against the court); cf R (Latif) v Social Security Commissioners [2002] EWHC 2355 (Admin) at §15 (“in a normal case … the Administrative Court would not expect the Secretary of State to participate in the proceedings, so as to provide the only element of resistance to a claim. It is really a matter for the Secretary of State to seek to participate only when his interests and those of his Department are seen by him to require his participation”); {2.1.31} (neutral/non-appearing defendant); {22.2.2} (party in subject-matter proceedings automatically an interested party); {18.1.14}-{18.1.19} (costs and court/tribunal). 22.2.10 Third party participation: illustrations. R (Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542 at §6 (interventions by the National Residential Landlords Association, the Equality and Human Rights Commission and Liberty); R (Asda Stores Ltd) v Leeds City Council [2019] EWHC 3578 (Admin) [2020] PTSR 874 at §20 (Secretary of State choosing to participate by written submissions only); R (Maughan) v Oxfordshire Senior Coroner [2019] EWCA Civ 809 [2019] QB 1218 at §5 (Chief Coroner and charity INQUEST intervening in judicial review proceedings concerning standard of proof in inquest); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §26 (six interveners); R (Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 [2020] QB 1 at §72 (permission for three interveners in CA as in DC); cf In re McGuinness [2020] UKSC 6 [2020] 2 WLR 510 at §18 (jurisdictional issue raised by Attorney-General, intervening). 22.2.11 Shared representation/avoiding duplication. {22.4.21} 22.2.12 Intervener providing evidence. Al Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51 [2020] 1 WLR 1546 at §§14, 18-19, 34 (Shelter providing relevant evidence in homelessness appeal on issue of extension of time, as to difficulties in securing legal aid); R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) at §§3, 13 (Welsh Language Commissioner given permission to intervene, including filing evidence); R (SL) v Westminster City Council [2003] UKSC 27 [2013] 1 WLR 1445 at §38 (“written submissions for the two interveners, supported by evidence from expert witnesses”); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §59 (Sir John Major providing evidence about typical prorogation). 22.2.13 Joinder of parties. CPR 19.1 (“Any number of claimants or defendants may be joined as parties to a claim”), CPR 19.2(2) (“(2) The court may order a person to be added as a new party if – (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue”); {22.1.28} (substitution of claimant). 22.2.14 Inherent jurisdiction to join parties/allow interventions. R v Minister of Agriculture Fisheries and Food, ex p SP Anastasiou (Pissouri) [1994] COD 329 (Court having inherent jurisdiction to ensure that all those who might be affected by the decision have the opportunity to present their case); R v National Lottery Commission, ex p Camelot Group Plc [2001] EMLR 3 at §3 (court having jurisdiction to hear person although not falling within old RSC Order 53 rules); Warren, Felsted Parish Council v Uttlesford District Council [1996] COD 262 (inherent jurisdiction to allow third-party intervention in planning statutory review); Roe v Sheffield City Council [2003] EWCA Civ 1 [2004] QB 653 at §85 (just as public interest 329

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interveners allowed by CPR 54, “no reason why the High Court in the exercise of its inherent jurisdiction should not be able to act likewise” in other similar proceedings). 22.2.15 Joinder as a defendant. R v Secretary of State for the Environment, ex p O’Byrne The Times 12 November 1999 (local authority joined as second defendant, on terms that even if unsuccessful claimant would not have to bear its costs); R v Secretary of State for Education, ex p Cumbria County Council [1994] ELR 220, 222C (although Governing Body joined as second defendant, remedy sought only against Secretary of State; late application to amend to seek remedy against the governors rejected) and 227A-B (any thwarting of a legitimate expectation of consultation was by the governors not the Secretary of State); cf R (C) v Birmingham City Council [2008] EWHC 3036 (Admin) [2009] 1 All ER 1039 at §§5, 50 (joinder of Secretary of State appropriate in case where immigration policy relevant). 22.2.16 Joinder as a claimant. R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §6 (permission to amend to add individual as second claimant), §10 (having the consequence that the HRA ‘victim test’ met); R (National Secular Society) v Bideford Town Council [2012] EWHC 175 (Admin) [2012] 2 All ER 1175 at §2 (former councillor joined as second claimant because NSS could not be a HRA “victim”); R (Williams) v Surrey County Council [2012] EWHC 516 (Admin) (permission for joinder of second claimant with undisputed standing); Gulf Insurance Ltd v Central Bank of Trinidad and Tobago [2005] UKPC 10 (Bank joined so that could recover damages for conversion); E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66 [2009] AC 536 at §42 (generally preferable to join a child in a case concerning the child’s rights and interests), §6 (better if child separately represented); {22.1.28} (substitution of claimant). 22.2.17 Judicial review opposed/resisted only by third party. R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 at §29 (judicial review of planning permission resisted only by third-party recipient); R (Preston) v Cumbria County Council [2019] EWHC 1362 (Admin) at §3 (defendant planning authority accepting decision unlawful and consenting to quashing order), §5 (claim resisted by interestedparty developer); R (Chief Executive of the Independent Police Complaints Commission) v Independent Police Complaints Commission [2016] EWHC 2993 (Admin) [2017] ACD 7 at §8 (claim resisted only by some of the interested parties); R (V) v Independent Appeal Panel for Tom Hood School [2010] EWCA Civ 142 [2010] PTSR 1462 at §1 (judicial review was resisted by Panel and Secretary of State in High Court, but Panel taking no part in appeal to CA); R (Reading Borough Council) v Admissions Appeal Panel for Reading Borough Council [2005] EWHC 2378 (Admin) [2006] ELR 186 (school admissions decisions defended only by interested third parties); R (Friends of the Earth Ltd) v Environment Agency [2003] EWHC 3193 (Admin) [2004] Env LR 615 (judicial review conceded by Environment Agency but contested unsuccessfully by beneficiary of impugned decision); R (SSHD) v Mental Health Review Tribunal [2004] EWHC 1029 (Admin) at §1 (third party alone opposing judicial review); R (Holmes) v General Medical Council [2001] EWHC Admin 321 at §14 (judicial review of GMC’s decision (declining to entertain a complaint against a doctor) not opposed by GMC, but only by the doctor); R v Tunbridge Wells Justices, ex p Tunbridge Wells Borough Council [1996] Env LR 88, 91 (judicial review conceded by defendant justices but resisted by third party accused); R v Secretary of State for the Environment, ex p Sutton LBC (1997) 95 LGR 509 (preliminary issue fought out between claimant and third party); R v Durham County Council, ex p Huddleston [2000] 1 WLR 1484 (judicial review supported by defendant but resisted by intervening Secretary of State and beneficiary third party); R v General Medical Council, ex p Toth [2000] 1 WLR 2209 (GMC accepting that decisions should be quashed, but remedy unsuccessfully resisted by directly affected third party); R v Independent Appeals Tribunal of Hillingdon LBC, ex p Governing Body of Mellow Lane School [2001] ELR 200 (court refusing to set aside consent order even though third party pupil not having consented to it and so having been denied the opportunity to defend it in court, given that his rights fully protected on reconsideration of the decision); R v Knowsley Metropolitan Borough Council, ex p Williams [2001] Env LR 28 (magistrates’ decision not 330

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quashed even though magistrates consenting to quashing order; court persuaded that decision lawful); R (Douglas) v North Tyneside Metropolitan Borough Council [2003] EWCA Civ 1847 [2004] 1 WLR 2363 at §3 (local authority leaving it to Secretary of State to defend claim, since had merely been implementing his regulations). 22.2.18 Third-party participation in writing only. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §9 (WWF given permission to intervene by written representations only); R (Hafeez) v SSHD [2020] EWHC 437 (Admin) [2020] 1 WLR 1877 at §12 (AIRE Centre granted permission to intervene by written submissions); R (Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35 [2020] 2 WLR 1215 at §5 (Law Society intervening in writing only); R (Good Law Project) v Electoral Commission [2019] EWCA Civ 1567 [2020] 1 WLR 1157 at §65 (interested party “did not appear and was not represented at the hearing” but “we have read a skeleton argument filed on its behalf”); R (Newby Foods Ltd) v Food Standards Agency [2019] UKSC 18 [2019] 3 CMLR 19 (four interveners, all participating in writing only); R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §52 (permission to intervene in writing only); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at 593E-F (two of six interveners given permission to make written submissions). 22.2.19 Third-party participation: advantage of oral submissions. R (Medical Justice) v SSHD [2019] EWHC 1710 (Admin) at §3 (permission for Equality and Human Rights Commission to intervene, to include attendance and oral submissions, because: “Court will in some way be able to accommodate … 30 minutes”; “it would be helpful to have Counsel able to make oral submissions, both by way of clarification and elucidation of the written submissions”, “It would be unsatisfactory … [if] the Court was unable to hear from somebody” on “points that would be better made and developed orally”). 22.2.20 Third-party intervention on conditions. R (Countryside Alliance) v Attorney General [2005] EWHC 167 (Admin) [2006] UKHRR 73 at §28 (RSPCA permission to intervene on terms that no costs order for or against them); R v Department of Health, ex p Source Informatics Ltd [2001] QB 424 at §11 (permission to intervene “on stringent terms as to the length of oral argument and costs”); R v Minister of Agriculture, Fisheries & Food, ex p SP Anastasiou (Pissouri) [1994] COD 329 (late application to intervene granted subject to undertaking not to raise certain political issues); R v Secretary of State for the Environment, ex p O’Byrne The Times 12 November 1999 (local authority joined as second defendant, on terms that even if unsuccessful claimant would not have to bear its costs). 22.2.21 Interim remedy sought against third party.65 R (Hever Resort Hotel Ltd) v Birmingham Magistrates Court [2019] EWHC 2812 (Admin) (in judicial review proceedings impugning magistrates’ issuing of warrant to electricity company to disconnect electricity, claimant unsuccessfully seeking interim injunction against electricity company); R v Secretary of State for Health, ex p Scotia Pharmaceuticals International Ltd (No 1) [1997] EuLR 625, 646B (concluding, if necessary, that applicant could at domestic law obtain interim remedy against third party by reason of the latter’s status in the proceedings; notwithstanding the Siskina [1979] AC 210 (no interim remedy where no cause of action)); R v Secretary of State for the Environment, ex p Rose Theatre Trust Company [1990] COD 47 (third party successfully applying to discharge interim remedy); R v Licensing Authority Established By The Medicines Act 1968, ex p Rhone Poulenc Rorer Ltd [1998] EuLR 127, 142F (Laws J: “there is [no] … rule that an injunction in judicial review may be granted only against the public body whose decision is impugned; a third party, such as the importers in this case, who are ‘directly affected’ within Order 53 r.5(3), may be enjoined if it is just and convenient to do so”), 134G-135B (refusing to allow third parties, at hearing of application for stay pending reference, to go behind judge’s findings when making the reference (especially where they had notice of that hearing and did not appear)); R v Medicines Control Agency, ex p Smith 65The

equivalent paragraph in a previous edition was relied on in R (Brent LBC) v Fed 2000 [2006] EWHC 2282 (Admin) at §52 (Beatson J).

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and Nephew Pharmaceuticals Ltd 26 March 1999 unreported (comments as to when might be appropriate for third parties to seek protection of cross-undertaking in damages); R v Durham County Council, ex p Huddleston [2000] Env LR D21 (interim injunction against third party, granted in the wider public interest, notwithstanding absence of a cross-undertaking in damages); R (Prokopp) v London Underground Ltd [2003] EWHC 960 (Admin) at §15 (Collins J: “If a developer is about to take what may be irrevocable steps which are said to be unlawful … an individual can seek and, if appropriate, obtain interim relief. … His claim will initially be against the developer, but he must notify the [local planning authority] and add it … as defendant”) (CA is at [2003] EWCA Civ 961 [2004] Env LR 170); R v Save Guana Cay Reef Association [2009] UKPC 44 at §24 (developer giving undertaking to stop work until outcome of judicial review known). 22.2.22 Remedy granted in favour of/against a third party. In re appeals by Governing Body of JFS [2009] UKSC 1 [2009] 1 WLR 2353 at §23 (declaration granted in favour of respondent to appeal, against the Legal Services Commission as a third party to the proceedings, that withdrawal of public funding would be unlawful); R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 246 (Admin) (media obtaining declaration in judicial review proceedings, as to right of access to pleadings from court records). 22.2.23 Appeal by third party. {23.2.10} 22.2.24 Costs in favour of third party. {18.3.17} (permission refused: costs in favour of interested party); {18.2} (costs and third parties); {18.5} (costs and discontinuance/settlement. 22.2.25 Intervention by the media. R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 246 (Admin) (non-party media obtaining declaration in judicial review proceedings, as to right of access to pleadings from court file); {21.5.1} (anonymity); {21.5.21} (direction for hearing in private). 22.2.26 Third party intervention by the State/Government. The many examples include: McDonald v McDonald [2016] UKSC 28 [2017] AC 273 and Manchester City Council v Pinnock (No 1) [2010] UKSC 45 [2011] 2 AC 104 (Secretary of State intervening as to whether HRA-based proportionality defence available in possession proceedings); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §2 (Secretary of State intervening in consumer credit case where declaration of incompatibility in issue); R v Wandsworth LBC, ex p O [2000] 1 WLR 2539, 2548C (CA inviting Secretary of State to intervene); R v Rent Officer Service, ex p Muldoon [1996] 1 WLR 1103 (HL rejecting Secretary of State’s application to be served as a person directly affected, but not doubting could apply to be a proper person to be heard); Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430 at §25 (“First Secretary of State was, on account of the general importance of the case for the public administration, given leave to intervene”); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §3 (intervention by the Lord Advocate, since related case had arisen in Scotland); Roe v Sheffield City Council [2003] EWCA Civ 1 [2004] QB 653 at §87 (Sedley LJ, considering actionability for breach of statutory duty not to be a proper issue for third party intervention by the Secretary of State, just because of its knock-on effect), §104 (Hale LJ, disagreeing, given the “strong policy element”); R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738 [2003] 1 WLR 475 at §1 (Lord Chancellor’s Department intervening because of points of principle arising as to the availability of judicial review of decisions of the county court); Evans v Amicus Healthcare Ltd [2004] EWCA Civ 727 [2005] Fam 1 at §42 (Secretary of State intervening because of HRA-compatibility and questions of “construction of legislation affecting a material aspect of the public interest”). 22.2.27 Public interest intervention.66 E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66 [2009] AC 536 at §2 (Lord Hoffmann, explaining that the HL “has frequently 66The

equivalent paragraph in a previous edition was relied on in W v Registrar of Marriages [2010] HKCFI 827 at §261 (Hon Andrew Cheung J); QT v Director of Immigration [2018] HKCFA 17 (Hong Kong Court of Final Appeals) at §13.

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been assisted by the submissions of statutory bodies and non-governmental organisations on questions of general public importance”); R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323 at §5 (Lord Bingham, referring to the “valuable interventions on behalf of JUSTICE, Liberty and the Joint Council for the Welfare of Immigrants”); Roe v Sheffield City Council [2003] EWCA Civ 1 [2004] QB 653 at §84 (Sedley LJ: “The most apparent value of interventions is in public law cases, where aspects of the public interest in a legal issue of general importance may be represented by neither of the two parties before the court. Both NGOs and ministers may play a valuable role here”); Public Law Project, Third Party Interventions in Judicial Review: An Action Research Study (PLP, May 2001). From the countless illustrations, see eg R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 [2006] 2 AC 148 (Mind and Mental Health Act Commission); R (Saadi) v SSHD [2002] UKHL 41 [2002] 1 WLR 3131 (Liberty, Justice and Aire Centre); R (Limbuela) v SSHD [2005] UKHL 66 [2006] 1 AC 396 at §35 (Shelter); R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 [2005] 1 WLR 2600 at §4 (Public Law Project); R (New London College Ltd) v SSHD [2013] UKSC 51 [2013] 1 WLR 2358 (Migrants’ Rights Network and JCWI). 22.2.28 Friend of the Court (amicus curiae). Administrative Court: Judicial Review Guide (2020 edition) at §10.1.3; R (AR (Pakistan)) v SSHD [2016] EWCA Civ 807 [2017] 1 WLR 255 at §§7-8, 14 (claimant and defendant agreed a consent order for withdrawal of claim, UT decided to deal with the substantive arguments; claimant supported by defendant then successfully appealing to CA, where amicus appointed to contest the appeal); R (Secretary of State for Defence) v Pensions Appeal Tribunal [2005] EWHC 1775 (Admin) at §12 (adjournment for Attorney-General to consider providing amicus to avoid one-sided argument on important point); R v Cambridge District Health Authority, ex p B (No 2) [1996] 1 FLR 375 (Official Solicitor acting as an amicus curiae); R (Ministry of Defence) v Wiltshire & Swindon Coroner [2005] EWHC 889 (Admin) [2006] 1 WLR 134 at §42 (court can request, but up to Attorney-General to decide whether to appoint); London Borough of Islington v Camp (1999) [2004] LGR 58, 66c (“Recourse to an amicus should be sparing, given the cost to central funds, but in an appropriate case it is capable of remedying a deficiency arising out of the unwillingness or inability of one of the parties to present full submissions”). 22.2.29 Person directly affected: curtailment. R (Certain Underwriters at Lloyds London) v HM Treasury [2020] EWHC 2189 (Admin) at §25 (difficulties with service of interested parties resolved by order dispensing with service on them); Secretary of State for Foreign and Commonwealth Affairs v HM Assistant Deputy Coroner for Inner North London [2013] EWHC 1786 (Admin) [2014] ACD 24 (DC directing that persons directly affected should not be served, where problematic for them to become parties and sufficient for them to seek permission as interveners).

22.3 Substantive disposal without a hearing. Judicial review proceedings can be disposed of without a hearing, where: (1) the claim is withdrawn; (2) the defendant (and interested parties) concede; (3) in a Cart claim (where no party opposing the claim requests a substantive hearing); or (4) the parties agree to determination on the papers. 22.3.1 Cart claim: disposal on the papers. {2.3.11} 22.3.2 Substantive decision without a hearing, by agreement: CPR 54.18. Administrative Court: Judicial Review Guide (2020 edition) at §10.4); CPR 54.18 (“The court may decide the claim for judicial review without a hearing where all the parties agree”); Woolf Report, Access to Justice (1996) at 255 (proposal for disposal of some contested applications without a hearing of the judicial review, where the case is suitable and the parties agree); R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) [2019] 1 WLR 1686 at §150 (CPR 54.18 not applicable where, albeit that order not resisted, a party considers that the matter merits consideration at an oral hearing); R (Parsipoor) v SSHD [2011] EWCA Civ 276 [2011] 1 WLR 3187 (agreement under CPR 54.18 the sole route to substantive determination without a hearing, eg if defendant claiming case having become academic); R (McVey) v Secretary of State for Health (No 2) [2010] EWHC 1225 (Admin) at §9 (parties having agreed for 333

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points raised by interested parties to be dealt with without a further hearing); R (Sinclair Gardens Investments (Kensington) Ltd v Lands Tribunal [2004] EWHC 1910 (Admin) at §21 (by agreement, key issue dealt with on the basis of written submissions) (CA is [2005] EWCA Civ 1305 [2006] 3 All ER 650); R (Reading Borough Council) v Admissions Appeal Panel for Reading Borough Council [2005] EWHC 2378 (Admin) [2006] ELR 186 at §10 (where defendant agreeing decisions unlawful, order for determination on documents under CPR 54.18 unless third parties objecting within 7 days), §11 (CPR 54.18 inapt if third party not agreeing); R (Baiai) v SSHD (No 2) [2006] EWHC 1454 (Admin) [2007] 1 WLR 735 at §6 (further issues resolved on written submissions only), §76 (unsatisfactory that urgency denying judge benefit of oral argument) (HL is [2008] UKHL 53 [2009] AC 287); cf R (Hysaj) v SSHD [2017] UKSC 82 [2018] 1 WLR 221 (disposal by SC without a hearing, but with a reasoned judgment, where Secretary of State agreeing line of CA decisions wrongly decided). 22.3.3 Discontinuance (N279)/withdrawal by claimant. Administrative Court: Judicial Review Guide (2020 edition) at §22.3 (discontinuance); R (Khan) v Governor of HMP The Mount [2020] EWHC 1367 (Admin) (notice of discontinuance pursuant to CPR 38.4), §126 (no reason here to depart from normal rule under CPR 38.6(1) that discontinuing claimant should pay the costs), §§3, 104 (no sufficient basis here for setting aside the notice of discontinuance to entertain defendant’s request for a ruling on the issue in the case), §109 (under CPR 38.7, claimant would need permission to raise claim against same defendant arising out of the same or substantially the same facts); R v SSHD, ex p Gashi 15 June 2000 unreported (although claims being withdrawn, appropriate to rule on certain issues because raised or likely to be raised in several pending cases). Notice of discontinuance is Form N279. 22.3.4 Substantive order where parties agreed: judicial scrutiny. Administrative Court: Judicial Review Guide (2020 edition) at §22.4 (consent orders and uncontested proceedings), §22.5 (settlements on behalf of children and protected parties); CPR PD54A at §§17.1-17.3 (“17.1 If the parties agree about the final order to be made in a claim for judicial review, the claimant must file at the court a document (with 2 copies) signed by all the parties setting out the terms of the proposed agreed order together with a short statement of the matters relied on as justifying the proposed agreed order and copies of any authorities or statutory provisions relied on. 17.2 The court will consider the documents referred to in paragraph 17.1 and will make the order if satisfied that the order should be made. 17.3 If the court is not satisfied that the order should be made, a hearing date will be set”); R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) [2019] 1 WLR 1686 at §74, citing Gacal [2015] EWHC 1437 (Admin) at §27 (Lang J: “Because the claim is brought in the name of the Queen, and the court is exercising a supervisory jurisdiction, the court must ensure that settlements are properly made for justifiable reasons. Public law claims are not the same as private law claims, where the parties are free to reach agreement on such terms as they see fit. Therefore consent orders are scrutinised by a person exercising judicial powers, i.e. a judge, a master or an Administrative Court lawyer exercising delegated judicial functions. They are only approved and sealed if they are found to be satisfactory”), §§147, 153 (here, remedy neither resisted nor consented to, and defendant requesting oral hearing and reasoned judgment, for good reasons); R (Hysaj) v SSHD [2017] UKSC 82 [2018] 1 WLR 221 (SC considering the legal merits and giving a reasoned judgment, where judicial review appeal being allowed by consent); R (AR (Pakistan)) v SSHD [2016] EWCA Civ 807 [2017] 1 WLR 255 at §§7-8, 14 (claimant and defendant agreed a consent order for withdrawal of claim, UT decided to deal with the substantive arguments; claimant supported by defendant then successfully appealing to CA, where amicus appointed to contest the appeal); R (AS) v Croydon LBC [2011] EWHC 2091 (Admin) at §65 (“pre-hearing settlement” between claimant and defendant in ageassessment case “cannot end the case since that requires the independent input of a judge’s declaratory order”); R v St Helen’s Justices, ex p Jones [1999] 2 All ER 73 (Court declining to sign consent order agreed by the parties, not being persuaded of its power to grant the remedy in question); R (Meredith) v Merthyr Tydfil County Borough Council [2002] EWHC 634 (Admin) at §7 (Elias J: “it is incumbent upon the court to be satisfied that any orders it makes can properly be given as a matter of law … [so] that the integrity of the legal process itself should be respected”); Estate of M Kingsley (dec’d) v Secretary of State for Transport 334

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[1994] COD 358 (since reviewing court is guardian of the public interest, any order agreeing to discontinuance of the proceedings or agreeing to the granting of consent requiring the court’s approval). 22.3.5 Agreed costs-only order. CPR PD54A §17.4 (“Where the agreement relates to an order for costs only, the parties need only file a document signed by all the parties setting out the terms of the proposed order”). 22.3.6 Costs and discontinuance/early disposal. {18.5} (costs and compromise/ discontinuance/early disposal).

22.4 The substantive hearing. At the substantive hearing in the Administrative Court, the court will hear oral submissions, look at key documents and authorities, and raise questions. The court will usually have pre-read the skeleton arguments and essential documents. Generally, the claimant addresses the court, then the defendant(s) and any interested party or intervener, with the claimant having a right of reply. The oral hearing is interactive. At the end of the oral arguments the court either gives an immediate judgment ex tempore or will reserve judgment to be handed down at a later date. Handed-down judgments are usually circulated to the parties in draft for suggested corrections. The court will deal (or give directions as to dealing) with consequential matters such as the precise form of order, any applications for costs and permission to appeal, in the light of the parties’ submissions. 22.4.1 Claimant’s entitlement to an oral hearing. R (Parsipoor) v SSHD [2011] EWCA Civ 276 [2011] 1 WLR 3187 (claimant entitled to an oral hearing, permission having been granted, unless parties agreeing to paper determination under CPR 54.18); {22.1.15} (application for strike out/dismissal); {22.1.8} (procedural rigour: claimant’s duty of re-evaluation if circumstances change); {3.1.17} (procedural rigour: keeping the court informed). 22.4.2 The hearing. Administrative Court: Judicial Review Guide (2020 edition) at §10.1 (format of the hearing), §10.3 (use of the Welsh language). 22.4.3 Vacating fixtures. Administrative Court: Judicial Review Guide (2020 edition) at §6.1.1, Annex 4 Part 5 §§22-26 (listing policy: vacating fixtures). 22.4.4 Venue: regionalisation. CPR PD54D §1.1 (“This Practice Direction concerns the place in which a claim before the Administrative Court should be started and administered and the venue at which it will be determined”), §1.2 (“This Practice Direction is intended to facilitate access to justice by enabling cases to be administered and determined in the most appropriate location. To achieve this purpose it provides flexibility in relation to where claims are to be administered and enables claims to be transferred to different venues”), §2.1 (“The claim form in proceedings in the Administrative Court may be issued at the Administrative Court Office of the High Court at – (1) the Royal Courts of Justice in London; or (2) at the District Registry of the High Court at Birmingham, Cardiff, Leeds, or Manchester unless the claim is one of the excepted classes of claim set out in paragraph 3 of this Practice Direction”), §5.2 (“The general expectation is that proceedings will be administered and determined in the region with which the claimant has the closest connection, subject to the following considerations as applicable – (1) any reason expressed by any party for preferring a particular venue; (2) the region in which the defendant, or any relevant office or department of the defendant, is based; (3) the region in which the claimant’s legal representatives are based; (4) the ease and cost of travel to a hearing; (5) the availability and suitability of alternative means of attending a hearing (for example, by videolink); (6) the extent and nature of media interest in the proceedings in any particular locality; (7) the time within which it is appropriate for the proceedings to be determined; (8) whether it is desirable to administer or determine the claim in another region in the light of the volume of claims issued at, and the capacity, resources and workload of, the court at which it is issued; (9) whether the claim raises issues sufficiently similar to those in another outstanding claim to make it desirable that it should be determined together with, or immediately following, that other claim; and (10) whether 335

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the claim raises devolution issues and for that reason whether it should more appropriately be determined in London or Cardiff”); R (Deepdock Ltd) v Welsh Ministers [2007] EWHC 3346 (Admin) (judicial review of Welsh Minister should be heard in Wales); R (Condron) v Merthyr Tydfil County Borough Council [2009] EWHC 1621 (Admin) at §61 (Beatson J: “The general expectation under Practice Direction 54D … is that proceedings will be administered and determined in the region in which the claimant has the closest connection”; Court may be proactive in directing a transfer to Wales in cases involving a Welsh public authority). 22.4.5 Substantive hearing: listing policy. Administrative Court: Judicial Review Guide (2020 edition) at §6.1.1, §13.2.3, Annex 4 Part 3 §§12-18 (listing policy: substantive hearings including rolled-up hearings). 22.4.6 Single judge or Divisional Court: civil matter. Senior Courts Act 1981 s.66 (Divisional Courts); CPR 54.10(1)(2)(b) (“(1) Where permission to proceed is given the court may also give directions. (2) Directions under paragraph (1) may include – … (b) directions requiring the proceedings to be heard by a Divisional Court”); Fun World Co Ltd v Municipal Council of Quatre Bornes [2009] UKPC 8 at §24 (explaining the use of Divisional Courts for all judicial review cases “up to 1980. Since then, judicial review applications have, in the interests of speed and efficiency, normally been determined by a single judge of the English Administrative Court”); Administrative Court: Judicial Review Guide (2020 edition) at §6.1.1, §13.3, Annex 4 Part 4 §§19-21 (listing policy: Divisional Court). 22.4.7 Divisional Court: criminal cause or matter. Thakrar v CPS [2019] EWCA Civ 874 [2019] 1 WLR 5241 (discussing use of Divisional Court in judicial review of criminal cause or matter) at §§42, 45 (substantive hearing ordinarily heard by a DC), §47 (paper judge adjourning permission into open court should consider whether to direct DC, and should normally so direct in any case involving a “rolled-up hearing”); {23.2.2} (criminal cause or matter). 22.4.8 Single Lord Justice. R (Royal Society for the Prevention of Cruelty to Animals) v Secretary of State for the Environment, Food and Rural Affairs [2008] EWHC 2321 (Admin) [2009] PTSR 730 (single Lord Justice sitting in the Admin Court). 22.4.9 Court of Appeal reserving the substantive hearing to itself. {23.1.17} 22.4.10 Judge’s previous/other role. R (Mohamad) v Special Adjudicator [2002] EWHC 2496 (Admin) (Munby J, commenting that “normal practice” in the Administrative Court is for a substantive application not to come before the same judge who originally refused permission on the papers, but that no objection here); cf Broughal v Walsh Brothers Builders Ltd [2018] EWCA Civ 1610 [2018] 1 WLR 5781 at §35 (“the prior involvement of a judge at the permission stage involving a consideration of the papers does not disqualify that judge from hearing the substantive [stage] (or, for that matter an oral renewal of the application) unless the judge has expressed his views in such a way as to indicate to any fair-minded lay observer that he has reached a concluded view and is unlikely to be open to further argument”); R (Spiro) v Immigration Appeal Tribunal [2001] EWCA Civ 2094 [2002] Imm AR 356 at §7 (no inappropriateness in President of the Immigration Appeal Tribunal considering judicial review of that Tribunal, “in his role as a judge of the High Court”). 22.4.11 Private hearing. R (Bank Renewables Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 606 (Admin) [2020] 4 WLR 84 at §4 (appropriate to hear submissions in “private session” if they involved “commercial sensitivity”). 22.4.12 Rolled-up hearing. {21.4} 22.4.13 Live evidence/cross-examination. {17.4} (oral evidence/cross-examination in judicial review). 22.4.14 Limited permission: renewal of refused ground at substantive hearing. CPR 54.15 (“The court’s permission is required if the claimant seeks to rely on grounds other than those for which he has been given permission to proceed”). A typical direction as to 336

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renewal where limited permission is granted on the papers is as follows: “If permission has been granted on some grounds but refused on others, you may request that the decision to refuse permission be reconsidered at a hearing by filing and serving a completed form 86B within 7 days of the service on you of this order. The reconsideration hearing will be fixed in due course. However, if all parties agree – and time estimates for substantive hearing allow the reconsideration hearing may take place immediately before the substantive hearing. The Administrative Court Office must be notified within 21 days of the service and filing of form 86B that the parties agree to this course”. Illustrations are R (Roberts) v Leicester Crown Court [2020] EWHC 1783 (Admin) at §§2, 28 (ground on which permission refused on the papers renewed at substantive hearing, permission granted and ground decided on its legal merits); R (Smith) v HM Assistant Coroner for North West Wales [2020] EWHC 781 (Admin) at §4 (ground on which permission refused on the papers renewed at substantive hearing); R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin) at §10 (renewed application for permission on grounds for which permission rejected on the papers, heard at substantive hearing on ground for which permission granted); R (Haden) v Shropshire Council [2020] EWHC 33 (Admin) at §3 (permission granted on the papers on two of four grounds, the other two being renewed to the substantive hearing); R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin) at §10 (renewed application for permission listed to be dealt with at the substantive hearing); R (TM (Kenya)) v SSHD [2019] EWCA Civ 784 [2019] 4 WLR 109 at §76 (emphasising “the importance, in a case in which there is to be both a substantive hearing of one or more grounds for judicial review and a renewed application for permission to apply on another ground or grounds, of the parties being entirely clear as to precisely what order they are asking the court to make as to the listing of those discrete issues”); R (AG) v SSHD [2020] EWHC 386 (Admin) at §§23-24 (where permission on a ground refused, and refused again at an oral hearing, court at substantive hearing can give permission for the refused ground if “real justification”). {21.2.28} (granting limited permission/conditional permission). 22.4.15 Application for permission to rely on late evidence. {22.1.16} 22.4.16 Application to amend judicial review grounds (JRG). {22.1.22}-{22.1.26} 22.4.17 Whether to debar a defaulting party. {3.1.13} (procedural rigour: debarring orders and public authorities; R (Montpeliers & Trevors Association) v City of Westminster [2005] EWHC 16 (Admin) [2006] LGR 304 at §17 (granting permission to defendant to participate notwithstanding disobedience/defiance of the rules). 22.4.18 Trial of a preliminary issue in judicial review. CPR 1.4(1), (2)(d), (i) (court’s casemanagement powers to direct substantive resolution of discrete issues); {38.3.5} (trial of a preliminary issue on the question of standing); R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin) at §2 (preliminary hearing deciding whether Art 6 applicable to the judicial review proceedings and, if so, scope of disclosure to which claimants entitled); R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §15 (preliminary issue as to whether ouster precluding judicial review); R (T) v Ministry of Justice [2018] EWHC 2615 (Admin) [2018] ACD 134 at §4 (preliminary issue as to whether to allow cross-examination of expert); R (Miah) v Independent Police Complaints Commission [2017] EWCA Civ 2108 [2018] 1 WLR 3817 at §19 (preliminary issue as to use of closed material procedure); R (Youseff) v Secretary of State for Foreign and Commonwealth Affairs [2011] EWHC 3014 (Admin) at §23 (refusing to direct a preliminary issue in judicial review, where not probable that issue would be determinative of the dispute), §38 (discussing relevant factors); R (Ghai) v Newcastle City Council [2010] EWCA Civ 59 [2011] QB 591 at §§4-5 (preliminary issue identified by CA); R (Dowsett) v Secretary of State for Justice [2011] EWHC 2877 at §§20, 29 (whether county court having exclusive jurisdiction); R (UNISON) v NHS Wiltshire Primary Care Trust [2012] EWHC 624 (Admin) [2012] ACD 84 at §1 (delay and standing); R (Maftah) v Secretary of State for Foreign Affairs [2011] EWCA Civ 350 [2012] QB 477 (whether determination of civil right or obligation); R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909 (reviewability); R (Evans) v University of Cambridge [2002] EWHC 1382 (Admin) [2003] ELR 8 at §3 (permission 337

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granted, limited to reviewability, with permission on remaining issues to await the outcome of that hearing); R v Association of British Travel Agents, ex p Sunspell Ltd [2001] ACD 88 (reviewability); R (A) v Partnerships in Care Ltd [2002] EWHC 529 (Admin) [2002] 1 WLR 2610 (reviewability); R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin) (reviewability); R (Lim) v SSHD [2006] EWHC 3004 (Admin) (issues of precedent fact and alternative remedy); R (Balbo B & C Auto Transporti Internationali) v SSHD [2001] EWHC Admin 195 [2001] 1 WLR 1556 (alternative remedy); R (Carvill) v Commissioners of Inland Revenue [2002] EWHC 1488 (Ch) [2002] STC 1167 (fairness and legality); R (Rose) v Secretary of State for Health [2002] EWHC 1593 (Admin) [2002] 2 FLR 962 (whether Art 8 engaged); R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §4 (applicability of statute); R (M) v Lambeth LBC [2008] EWHC 1364 (Admin) (age-determination function) (SC is [2009] UKSC 8 [2009] 1 WLR 2557). 22.4.19 Neutral/non-appearing defendant. {2.1.31} 22.4.20 Procedural rigour: focusing the oral argument/dropping weak points. R (Lambert) v London Borough of Southwark [2003] EWHC 2121 (Admin) at §39 (Jackson J, referring to Counsel as having “modified, and in one or two cases abandoned, contentions set out in his skeleton argument. I make no complaint whatsoever about the changes in position of the claimant’s legal advisors. It is inevitable that issues become more focused in the run up to a court hearing. It is also sensible for any advocate to concentrate on his stronger points and to pass over or to drop his weaker ones”); Richard Buxton (a firm) v Mills-Owens [2010] EWCA Civ 122 [2010] 1 WLR 1997 at §45 (“if an advocate considers that a point is properly arguable, he should argue it without reservation. If he does not consider it to be properly arguable, he should refuse to argue it”). 22.4.21 Shared representation/avoiding duplication. R (Ewing) v Isleworth Crown Court [2019] EWHC 288 (Admin) [2019] 2 Cr App R 9 at §6 (counsel jointly instructed by Crown Court defendant and HMCTS interested party); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §77 (“the parties sensibly apportioned the oral argument between them where there was commonality of interest, thereby avoiding unnecessary duplication”); R (Chief Executive of the Independent Police Complaints Commission) v Independent Police Complaints Commission [2016] EWHC 2993 (Admin) [2017] ACD 7 at §8 (same counsel representing both the claimant and the defendant, each wishing decision to be quashed); R (Ardagh Glass Ltd) v Chester City Council [2010] EWCA Civ 172 [2011] 1 All ER 476 (an appeal as to the power to grant retrospective planning permission, same counsel acting for local planning authority and interested party potential applicant for planning decision); R (Couronne) v Crawley Borough Council [2007] EWCA Civ 1086 [2008] 1 WLR 2762 at §6 (local authorities and Secretaries of State jointly represented); R (Girling) v Parole Board [2005] EWHC 5469 [2006] 1 WLR 1917 at §61 (Parole Board and Secretary of State entitled to share legal representation if both satisfied that agreeing on the issues raised) (CA is at [2006] EWCA Civ 1779 [2007] QB 783); R (Murungaru) v SSHD [2008] EWCA Civ 1015 at §14 (counsel not able to speak for both Secretary of State and Attorney-General in his public interest role regarding appointment of special advocates); In re J (A Child) (Adopted Child: Contact) [2010] EWCA Civ 581 [2011] Fam 31 at §45 (CA warning, in a family law context, that separate legal representation with public funding should be avoided for parties in the “same interest” unless there is an unavoidable conflict of interest), §50. 22.4.22 Closed material procedure (CMP). Justice and Security Act 2013 ss.6-14 (CMP in civil proceedings); Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 (CMP involves court deciding the case having taken into account ‘closed’ materials and submissions which a party has not seen); R (Terra Services Ltd) v National Crime Agency [2020] EWHC 130 (Admin) [2020] 1 WLR 1149 (CMP not necessitating appointment of a special advocate here); R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §3 (CMP used), §31 (in accordance with declaration granted pursuant to 2013 Act s.6); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 (CMP not available in judicial review challenge to DPP’s decision not to prosecute, because a “criminal cause or matter” pursuant to s.6); B v SSHD [2018] 338

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EWHC 2651 (Admin) [2018] ACD 137 at §2 (CMP applied in judicial review of cancellation of passports, the necessary directions having been given under the 2013 Act); R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §16 (CMP not needed here); K v Secretary of State for Defence [2017] EWHC 830 (Admin) [2017] ACD 75 (deciding extent of disclosure necessary to satisfy Art 6 in claim involving CMP); QX v SSHD [2020] EWHC 1221 (Admin) [2020] ACD 83 at §27 (CMP in statutory review of Temporary Exclusion Order, under the Counter-Terrorism and Security Act 2015 Sch 3); R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §53 (CMP available, absent parliamentary authorisation, only in (i) “cases where ‘the whole object of the proceedings is to protect and promote the best interests of a child [and] disclosure of some of the evidence would be so detrimental to the child’s welfare as to defeat the whole object of the exercise” and (ii) “cases where the whole object of the proceedings is to protect a commercial interest, and where full disclosure would render the proceedings futile (cases in which a ‘confidentiality ring’ is commonplace)”), §59 (or (iii) “where [a CMP] is the procedure which Parliament has authorised in the lower court or tribunal whose decision is under review”); Practice Direction (Closed Judgments) [2019] 1 WLR 1351; R (Jordan) v Chief Constable of Merseyside Police [2020] EWHC 2274 (Admin) at §35(c) (Chamberlain J, suggesting a procedural sequence where a CMP is used in the context of a successful claim based on public interest immunity); {17.1.14} (public interest immunity); {21.5.15} (direction for a CMC/PII hearing). 22.4.23 Ex tempore/reserved judgment. Administrative Court: Judicial Review Guide (2020 edition) at §10.6.1.1 (judgment delivered ex tempore), §10.6.2 (reserved judgment). 22.4.24 Post-hearing submissions/communications. R (Fayad) v SSHD [2018] EWCA Civ 54 at §41 (Hickinbottom LJ: “it is entirely inappropriate for a party to make further unsolicited written submissions after a hearing, absent very good reason”); Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 [2005] 1 WLR 2070 at §31 (important new authority should have been drawn to the judge’s attention after the hearing, with a request to make further submissions). 22.4.25 Outcome announced with reasons to follow. R (DPP) v Walsall Magistrates’ Court [2019] EWHC 3317 (Admin) [2020] ACD 21 at §2 (“At the end of the hearing we announced our decision …, allowing the applications for judicial review and quashing the orders for disclosure, with reasons to follow”); R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin) [2020] 4 WLR 4 at §3; Packham v Secretary of State for Transport [2020] EWHC 829 (Admin) at §3. 22.4.26 Whether to give a judgment: parties compromising after argument concluded. R (Bank Renewables Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 606 (Admin) [2020] 4 WLR 84 at §12 (Garnham J: “Ordinarily, no party or combination of parties should be in a position to prevent the publication of a court judgment after argument has concluded”), §14 (acceding to joint request of the parties not to hand down judgment, where settlement reached, because of special reasons of “overwhelming public importance”); cf R v Legal Aid Board, ex p Kaim Todner [1999] QB 966 (giving judgment after claimant sought to withdraw, having been refused anonymity). 22.4.27 Circulation of a draft judgment for typos/consequentials/draft order etc. Administrative Court: Judicial Review Guide (2020 edition) at §§10.6.2, 10.6.3; R (A) v Central Criminal Court [2017] EWHC 70 (Admin) [2017] 1 WLR 3567 at §68 (Gross LJ: “I … direct that within 14 days of the hand-down of this judgment, counsel should exchange and deliver to the court brief written submissions, including proposals for a draft order. Ideally, the draft order should be capable of agreement but if no such agreement is reached, then the proposals for a draft order should clearly indicate the differences between the parties. The court anticipates dealing with any outstanding matters by way of a short written ruling, unless (contrary to expectations) it should emerge that a further oral hearing becomes unavoidable”); Egan v Motor Services (Bath) Ltd (Note) [2007] EWCA Civ 1002 [2008] 1 WLR 1589 at §§49-51 (inappropriate to write to judge on receipt of draft judgment requesting reconsideration of conclusions; exceptionally could seek further reasons or opportunity to make submissions on a decisive unargued point); R (Edwards) v Environment Agency [2008] UKHL 22 [2009] 339

THE NATURE OF JUDICIAL REVIEW

1 All ER 57 at §§66, 73 (draft judgment not an opportunity to reargue the case or introduce new arguments); R (Watson) v SSHD [2018] EWCA Civ 70 [2018] QB 912 at §25 (CA deciding, exceptionally, to consider written submissions provided after draft judgment circulated); R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2010] EWCA Civ 65, 158 (whether justification for redactions in judgment in light of principle of open justice; and discussion of function of draft judgment). 22.4.28 Cooperation: attempting to agree an order. Administrative Court: Judicial Review Guide (2020 edition) at §10.6.3 (“The parties are obliged to attempt to agree the form of the final order and any consequential orders. … The parties should submit an agreed order, which should include the terms of any orders made by the judge in Court and the terms of any agreed consequential orders, by 12 noon the day before the hand down date”), referring to CPR PD40E §§4.1, 4.2. 22.4.29 Consequential matters: appropriate remedy. {P24} (remedies); 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); Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 2183 (Admin) (separate judgment dealing with appropriate remedy). 22.4.30 Consequential matters: costs. {P18} (costs). 22.4.31 Consequential matters: permission to appeal to the CA/extension of time for PTA. Administrative Court: Judicial Review Guide (2020 edition) at §25.6.1 (“Permission to appeal against the Court’s decision following the substantive hearing is required and it can be granted by the Administrative Court. The application will need to be made at the hearing at which the decision to be appealed is made unless the court directs the application to be made later. The Court may adjourn the question of permission to appeal to another date or to be considered on written representations, but it must make an order doing so at the time of the hearing when the decision is made”), §25.6.4 (“Permission to appeal will only be granted if the Court finds that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard”); CPR 52.6 (“(1) Except where rule 52.7 [second appeals test] applies, permission to appeal may be given only where – (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard. (2) An order giving permission under this rule or under rule 52.7 may – (a) limit the issues to be heard; and (b) be made subject to conditions. (Rule 3.1(3) also provides that the court may make an order subject to conditions.) (Rule 25.15 provides for the court to order security for costs of an appeal.)”); R (Mencap) v Parliamentary & Health Service Ombudsman [2011] EWHC 3351 (Admin) at §59 (extending time for any appellant’s notice to be lodged within 14 days of the transcript of judgment becoming available); Lisle-Mainwaring v Associated Newspapers Ltd [2018] EWCA Civ 1470 [2018] 1 WLR 4766 at §§14-15 (High Court lacks jurisdiction to grant permission to appeal once case disposed of, unless raised at the time). 22.4.32 Consequential matters: certificate of a point of law (criminal cases). Administrative Court: Judicial Review Guide (2020 edition) at §25.7.1 (“There is no right of appeal from the Administrative Court to the Court of Appeal in cases relating to any criminal cause or matter”), §25.7.2 (“The only route of appeal from the Administrative Court is to the Supreme Court. An appeal to the Supreme Court is only possible where two conditions are satisfied. First, the Administrative Court must certify that the case raises a point of law of general public importance. The second is that permission to appeal must be granted”), §25.7.3 (“An application for permission to appeal to the Supreme Court and for a certificate of a point of law must be made to the Administrative Court within 28 days of the decision challenged or the date when reasons for the decision are given”), §25.7.4 (“The application for a certificate of a point of law and for permission to appeal may be made in the same application. The procedure is the same as the interim applications procedure. … The Court may decide to grant the certificate even if it decides to refuse permission to appeal. The certificate will be used 340

P22 THE SUBSTANTIVE STAGE

in any application to the Supreme Court itself for permission to appeal”); {23.2.2} (criminal cause or matter). 22.4.33 Handing down judgment. Administrative Court: Judicial Review Guide (2020 edition) at §10.6; Annex 6 (handing down judgment in Wales). 22.4.34 The sealed Order. Administrative Court: Judicial Review Guide (2020 edition) at §10.6.7.

341

P23 Appeal. There are regulated appeal rights in judicial review, for the claimant from a refusal of permission in a civil case, and for all parties from other decisions of the Court. 23.1 Permission-stage appeal 23.2 Substantive appeal 23.3 Nature of the appellate court’s approach

23.1 Permission-stage appeal. A grant of permission for judicial review (PJR) is not appealable. In a ‘civil’ case, where PJR has been refused by the Administrative Court in open court (or on the papers with a TWM certificate), appeal lies to the Court of Appeal (CA). The claimant now needs both (i) permission to appeal (PTA); and (ii) PJR. Unless PTA is granted the Supreme Court has no jurisdiction. If PTA and PJR are granted, the substantive hearing will revert to the Administrative Court unless the CA has reserved the substantive hearing to itself (either when granting PJR or by directing a rolled-up hearing). Other permission-stage decisions, for example as to interim relief or casemanagement decisions, are in principle appealable. In a ‘criminal cause or matter’ the CA has no jurisdiction, and PJR is finally determined by the Administrative Court. 23.1.1 Permission-stage appeal: overview. Administrative Court: Judicial Review Guide (2020 edition) at §25.3.1 (“Where permission to apply for judicial review has been refused after a hearing in the Administrative Court, the claimant may appeal to the Court of Appeal, but permission to appeal must be obtained from the Court of Appeal”), §25.3.2 (“Where permission has been refused by the Administrative Court on the papers, and there is no right to request reconsideration of that refusal at an oral hearing before the Administrative Court, the applicant can apply to the Court of Appeal for permission to appeal”), §25.3.3 (“An appeal (including the application for permission to appeal) against the refusal of permission to apply for judicial review must be lodged with the Court of Appeal within seven days of the date of the decision, or within the time limit ordered by the Administrative Court. This is also the case where permission has been refused and the right to renewal has been removed (cases where the Upper Tribunal is the defendant … and totally without merit cases …), although in these cases the seven days begins from the date of service of the order, not the date of the decision”), §25.3.4 (“The Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review, in which event the case will proceed in the Administrative Court unless the Court of Appeal orders otherwise”). 23.1.2 Permission-stage appeal: the rules. CPR 52.8 (“(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, an application for permission to appeal may be made to the Court of Appeal. (2) Where permission to apply for judicial review of a decision of the Upper Tribunal has been refused by the High Court on the papers or where permission to apply for judicial review has been refused on the papers and recorded as being totally without merit in accordance with rule 23.12, an application for permission to appeal may be made to the Court of Appeal. (3) An application under paragraph (1) must be made within 7 days of the decision of the High Court to refuse to give permission to apply for judicial review. (4) An application under paragraph (2) must be made within 7 days of service of the order of the High Court refusing permission to apply for judicial review. (5) On an application under paragraph (1) or (2), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review. (6) Where the Court of Appeal gives permission to apply for judicial review in accordance with paragraph (5), the case will proceed in the High Court unless the Court of Appeal orders otherwise”).

P23 APPEAL

23.1.3 UTJR: permission-stage appeal rules. CPR 52.9 (“(1) Where permission to bring judicial review proceedings has been refused by the Upper Tribunal at a hearing and permission to appeal has been refused by the Upper Tribunal, an application for permission to appeal may be made to the Court of Appeal. (2) Where an application for permission to bring judicial review proceedings has been determined by the Upper Tribunal on the papers and recorded as being totally without merit and permission to appeal has been refused by the Upper Tribunal, an application for permission to appeal may be made to the Court of Appeal. (3) An application under this rule to the Court of Appeal must be made within 7 days of – (a) the decision of the Upper Tribunal refusing permission to appeal to the Court of Appeal, where that decision was made at a hearing; or (b) service of the order of the Upper Tribunal refusing permission to appeal to the Court of Appeal, where the decision to refuse permission was made on the papers”); {2.2} (UTJR). 23.1.4 No appeal from High Court grant of permission for judicial review (PJR). R v Chief Constable of West Yorkshire, ex p Wilkinson [2002] EWHC 2353 (Admin) at §40 (“the rules do not permit an appeal from the decision … in granting permission”); R (Kurdistan Workers Party) v SSHD [2002] EWHC 644 (Admin) at §99 (referring to “the absence of any right of appeal against the grant of permission”); Administrative Court: Judicial Review Guide (2020 edition) at §25.2.1 (“Where permission to apply for judicial review has been granted neither the defendant nor any other person served with the Claim Form may apply to set aside the order granting permission to bring a judicial review”, referring to CPR 54.13). 23.1.5 Criminal cause or matter: no permission-stage appeal. {23.2.1} (appeals: distinguishing between civil and criminal matters); {23.1.5} (criminal cause or matter: no permission-stage appeal); Administrative Court: Judicial Review Guide (2020 edition) at §25.7.1 (“There is no right of appeal from the Administrative Court to the Court of Appeal in cases relating to any criminal cause or matter”), §25.7.2 (“The only route of appeal from the Administrative Court is to the Supreme Court”), §25.7.5 (“The right of appeal to the Supreme Court applies only to substantive decisions. There is no appeal from the decision of the Court if permission to apply for judicial review is refused”). 23.1.6 Permission to appeal from the judge who refused permission for judicial review? {21.2.29} 23.1.7 Permission-stage appeal: claimant duty of candour. R (Bown) v Secretary of State for Transport [2003] EWCA Civ 1170 [2003] 3 PLR 100 (where permission to appeal being sought in a “without notice procedure” in the CA, and where issues as to delay or expedition, appellant obliged to make “full disclosure” of “countervailing considerations”, or to notify the respondent) at §50 (relevant factors “should be known to the court, since they may be very relevant to its exercise of any discretion, particularly as to the significance of delay or the need for expedition. In our view, in such cases, the claimant should, as part of his duty of full disclosure, provide the court with information about countervailing considerations, so far as not apparent from the documents, or alternatively give notice to the proposed respondents to enable them to put any relevant information before the court”). 23.1.8 Importance of permission-stage appeal: illustrations. R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 at §4 (permission for judicial review refused by DC, but granted by CA), §144 (claim succeeding in demonstrating systemic unfairness); Kemper Reinsurance Company v Minister of Finance [2000] 1 AC 1, 15B (Lord Hoffmann: “The law reports reveal a number of important points of administrative law which have been decided by the Court of Appeal or House of Lords in cases in which [permission] was refused at first instance”); R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335, 349B-C (CA granting permission, dismissing substantive application and giving permission to bring (ultimately successful) appeal in HL); R v Commissioner for the Special Purposes of the Income Tax Acts, ex p Stipplechoice The Times 23 January 1985 and R v Beverley County Court, ex p Brown The Times 25 January 1985 (expressing the constitutional importance of the right of renewal to the CA, at a time of a legislative proposal to remove it). 343

THE NATURE OF JUDICIAL REVIEW

23.1.9 Permission-stage appeals: Brooke LJ’s overview. R (Werner) v Inland Revenue Commissioners [2002] EWCA Civ 979 [2002] STC 1213 at §31 (Brooke LJ: “Under [CPR 52.8] the Court of Appeal will apply the now familiar test of determining whether an appeal against a judge’s refusal of permission would have a real prospect of success, in the sense that the prospect of success is not merely ‘fanciful’ (Swain v Hillman [2001] 1 All ER 91). In applying this test it will inevitably examine the merits of the original application, and if it considers that the application is fit for consideration at a substantive judicial review hearing it will of course decide that the prospects of a successful appeal are not fanciful. It will probably go on to grant permission to apply for judicial review itself under CPR [52.8(5)]”), §32 (“If it considers that there is a real prospect of the appellant being able to show at a contested appeal hearing that the application is fit for consideration at a substantive judicial review hearing but it wishes to hear the respondent on the matter, it will probably adjourn the application to be heard on notice, with the appeal to follow if permission is granted. This will represent a speedier and more convenient way of dealing with the matter than merely granting permission to appeal there and then, and then holding things up until a substantive appeal hearing can be heard on the question whether the appeal should be allowed and permission to apply for judicial review granted”), §33 (“The House of Lords has now made it clear that if this court refuses permission to appeal against a refusal of permission to apply for judicial review there is no further right of appeal (R v Secretary of State for Trade and Industry, ex p Eastaway [2000] 1 WLR 2222). If, on the other hand, this court grants permission to appeal but then refuses permission to apply for judicial review at the substantive appeal hearing, there is potentially a right of appeal to the House of Lords (see R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593)”). 23.1.10 Permission-stage appeals: illustrations. R (Seabrook Warehousing Ltd) v HMRC [2019] EWCA Civ 1357 at §1 (CA granting permission for judicial review under CPR 52.8(5)); R (Prathipati) v SSHD [2018] EWCA Civ 1370 at §1 (permission to appeal granted after oral hearing), §44 (appeal allowed and permission for judicial review granted, with the substantive hearing remitted to the UT); R (Brookes) v Secretary of State for Work and Pensions [2010] EWCA Civ 420 [2010] 1 WLR 2448 at §3 (listed for permission to appeal with the appeal to follow if successful; CA granting permission and dealing with the substantive judicial review itself); R (C) v Nottingham City Council [2010] EWCA Civ 790 [2011] 1 FCR 127 at §27 (permission to appeal granted on the papers and a rolled-up hearing directed in the CA); R (Shiner) v HMRC [2010] EWCA Civ 558 at §13 (CA granting permission for judicial review and retaining the case in the CA, so that EU and ECHR issues could be disposed of by CA in linked cases); R (M) v Homerton University Hospital [2008] EWCA Civ 197 at §1 (permission to appeal granted at beginning of hearing, then hearing argument on appeal against refusal of permission for judicial review); R v Hammersmith and Fulham LBC, ex p Burkett [2001] Env LR 684 (CA) at §7 (permission to appeal granted after hearing appellant only, then hearing all parties on permission for judicial review); R (Plowman) v Secretary of State for Foreign and Commonwealth Affairs [2001] EWHC Admin 617 (in post-judgment argument, parties accepting that Administrative Court judge having power to give permission to appeal against refusal of permission to claim judicial review). 23.1.11 Permission-stage appeals: implications for SC jurisdiction. R v Secretary of State for Trade and Industry, ex p Eastaway [2000] 1 WLR 2222 (where CA has refused permission to appeal, HL having no jurisdiction); R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 (HL having jurisdiction to consider whether to grant permission for judicial review where CA had (a) granted permission to appeal from Administrative Court refusal of permission for judicial review but (b) had dismissed the appeal against that refusal); R (O) v SSHD [2016] UKSC 19 [2016] 1 WLR 1717 (SC dealing with appeal at permission stage of judicial review). 23.1.12 Permission-stage appeal: CA acting to preserve appeal rights to SC. R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335, 349BC (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); R v DPP, 344

P23 APPEAL

ex p Camelot Group Plc (1998) 10 Admin LR 93, 105E-F (permission treated as hearing of the judicial review by CA so that dismissal not necessarily the end for claimant’s arguments); R v Her Majesty’s Treasury, ex p Shepherd Neame Ltd (1999) 11 Admin LR 517, 518b (permission given by CA to preserve position as to petition to HL); R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 WLR 669 (on a permission appeal, CA recognising the importance of the issue, dismissing the proceedings by granting permission and treating the hearing as the substantive application, to leave permission open to the HL). 23.1.13 Permission-stage appeal: no automatic stay of immigration removal. R (Pharis) v SSHD [2004] EWCA Civ 654 [2004] 1 WLR 2590 at §19 (CA explaining that: “in future the lodging of a notice of appeal in the Court of Appeal in an immigration or asylum case when the refusal of a High Court judge to grant permission to apply for judicial review is under challenge should not be interpreted as giving rise to an automatic stay of deportation process. If the appellant wishes to seek a stay, he/she must make an express application for this purpose which the staff of the Civil Appeals Office must place before a judge of this court for a ruling on paper”). 23.1.14 Permission-stage appeal: grant of limited permission by CA. R v Radio Authority, ex p Wildman [1999] COD 255 (open to first-instance judge to allow reliance on a ground on which permission had been refused by CA, if some development had occurred, but natural to pay greatest of attention to views expressed by CA in refusing permission on that ground); R (Pelling) v Bow County Court [2001] UKHRR 165 at §13 (where CA granting limited permission, “the substance of the decision stands on the same level with regard to this court as would the decision of any permission granting judge”). 23.1.15 Appeal to CA from interlocutory orders etc. Administrative Court: Judicial Review Guide (2020 edition) at §25.4 (appeals against case-management orders), §25.5 (appeals against interim orders made by a Master); {23.2.26} (appeal against decision as to interim remedy); {20.1.11} (interim relief refused on the papers: renew to open court); R (Ghadami) v Harlow District Council [2004] EWCA Civ 891 (successful appeal against listing directions since, although CA slow to interfere with case-management decisions, here made without sufficient regard to directions originally made). 23.1.16 Procedural rigour: hopeless permission appeals to CA. R v SSHD, ex p Panther (1996) 8 Admin LR 154, 162F-G (not surprising that application for permission launched, but “a wholly different matter to renew the application, after refusal by the Judge, to this court”); R (Nine Nepalese Asylum Seekers) v Immigration Appeal Tribunal [2003] EWCA Civ 1892 (Brooke LJ: “applications of this kind represent an abuse of the processes of this court, which exists to resolve genuine points of law in judicial review cases, and is not a fourth tier appellate court of fact when the original tribunal of fact has disbelieved an applicant”). 23.1.17 CA reserving substantive hearing to itself: illustrations. See CPR 52.8(6) {23.1.2}; R (Vote Leave Ltd) v Electoral Commission [2019] EWCA Civ 1938 [2019] 4 WLR 157 at §7; R (Cleansing Service Group Ltd) v Environment Agency [2019] EWCA Civ 157 [2019] Env LR 24 at §1; R (Seabrook Warehousing Ltd) v HMRC [2019] EWCA Civ 1357 at §§1-2 (CA retaining substantive hearing itself, because of “important points of principle”); R (EM) v SSHD [2018] EWCA Civ 1070 [2018] 1 WLR 4386 at §1; R (Davis) v Watford Borough Council [2018] EWCA Civ 529 [2018] 1 WLR 3157 at §2; R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716 [2017] 4 WLR 213 at §7; R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 at §4; R (T) v HM Senior Coroner for West Yorkshire [2017] EWCA Civ 318 at §1; R (McDonald) v Kensington and Chelsea Royal LBC [2011] UKSC 33 [2011] PTSR 1266 at §3 (CA granted permission for JR and reserved substantive hearing to itself); R (Davies) v HMRC [2011] UKSC 47 [2011] 1 WLR 2625 at §8; R (AA (Iraq)) v SSHD [2012] EWCA Civ 23 at §111 (suggesting “caution before deciding to retain the substantive proceedings in this court”); R v SSHD, ex p Turgut [2001] 1 All ER 719, 736d (CA “will not usually reserve the trial of the matter to itself”); R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335, 349B-C (CA granting permission for judicial review, refusing substantive application and granting permission to appeal to HL); 345

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R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349, 354C (CA) at §2 (where CA reserved the substantive hearing to itself: “We are … exercising an original jurisdiction, but as the Court of Appeal and not as a Divisional Court”); R (West) v Lloyds of London [2004] EWCA Civ 506 [2004] 3 All ER 251 at §§1-2 (CA directing reviewability issue to be decided first, and reserving that issue to itself, given a line of first instance authority). 23.1.18 CA ruling on a question of law. Hutton v Criminal Injuries Compensation Authority [2016] EWCA Civ 1305 [2017] ACD 20 at §14 (CA granted permission for judicial review, identifying error of law, but remitting substantive hearing for UT to decide materiality: [2012] EWCA Civ 806).

23.2 Substantive appeal. In a ‘civil’ case an appeal lies to the Court of Appeal (CA) from an Administrative Court decision on a substantive hearing, if permission to appeal (PTA) is obtained from the Administrative Court or the CA. From the decision on a substantive appeal in the CA there is a further appeal to the Supreme Court (SC), with the permission of either CA or SC. In a ‘criminal cause or matter’, the substantive appeal is direct from the Administrative Court to the SC, with a certification of public importance from the Administrative Court and PTA from either Court. 23.2.1 Appeals: distinguishing between civil and criminal matters. Administration of Justice Act 1960 s.1(1)-(2) (“(1) Subject to the provisions of this section, an appeal shall lie to the Supreme Court, at the instance of the defendant or the prosecutor, – (a) from any decision of the High Court in a criminal cause or matter; … (2) No appeal shall lie under this section except with the leave of the court below or of the Supreme Court; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the Supreme Court, as the case may be, that the point is one which ought to be considered by the Supreme Court”); Senior Courts Act 1981 s.18(1)(a) (“(1) No appeal shall lie to the Court of Appeal – (a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter”); Kearney v Chief Constable of Hampshire [2019] EWCA Civ 1841 [2019] 4 WLR 144 (CA held to lack jurisdiction by reference to s.18(1)(a)). 23.2.2 ‘Criminal cause or matter’. In re McGuinness [2020] UKSC 6 [2020] 2 WLR 510 at §49 (“criminal cause or matter” intended “to refer to proceedings in which an individual, ‘the defendant’, is directly in jeopardy pursuant to a process potentially leading to his punishment under the criminal law in this jurisdiction or abroad”), §77 (“asking the question in relation to the proceedings which underlie those in the High Court: are they proceedings ‘the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so’ … and ‘which, if carried to [their] conclusion, might result in the conviction of the person charged and in a sentence of some punishment’ …?”). 23.2.3 Substantive appeal: overview. Administrative Court: Judicial Review Guide (2020 edition) at §25.6 (appeals against decisions made at the substantive hearing), §25.6.1 (“Permission to appeal against the Court’s decision following the substantive hearing is required and it can be granted by the Administrative Court. The application will need to be made at the hearing at which the decision to be appealed is made unless the court directs the application to be made later. The Court may adjourn the question of permission to appeal to another date or to be considered on written representations, but it must make an order doing so at the time of the hearing when the decision is made”), §25.6.2 (“If permission to appeal is refused by the Administrative Court, a second application for permission to appeal must be made to the Court of Appeal in the Appellant’s Notice (Form N161). The application for permission to appeal can be made to the Court of Appeal even if permission to appeal was not sought from the Administrative Court. Any party seeking to appeal should submit grounds of appeal that are focused, clear and concise. Parties should follow the relevant provisions of the CPR and practice directions on appeals”), §25.6.3 (“An appeal (including any application 346

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for permission to appeal) against a substantive decision of the Administrative Court must be lodged with the Court of Appeal within 21 days of the date of the decision or within the time limit ordered by the Administrative Court”), §25.6.4 (“Permission to appeal will only be granted if the Court finds that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard”). 23.2.4 Substantive appeal: permission to appeal. CPR 52.6 (“(1) Except where rule 52.7 [second appeals test] applies, permission to appeal may be given only where – (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard. (2) An order giving permission under this rule or under rule 52.7 may – (a) limit the issues to be heard; and (b) be made subject to conditions. (Rule 3.1(3) also provides that the court may make an order subject to conditions.) (Rule 25.15 provides for the court to order security for costs of an appeal.)”). 23.2.5 Appeal in ‘criminal cause or matter’: overview. Administrative Court: Judicial Review Guide (2020 edition) at §25.7.1 (“There is no right of appeal from the Administrative Court to the Court of Appeal in cases relating to any criminal cause or matter”), §25.7.2 (“The only route of appeal from the Administrative Court is to the Supreme Court. An appeal to the Supreme Court is only possible where two conditions are satisfied. First, the Administrative Court must certify that the case raises a point of law of general public importance. The second is that permission to appeal must be granted”), §25.7.3 (“An application for permission to appeal to the Supreme Court and for a certificate of a point of law must be made to the Administrative Court within 28 days of the decision challenged or the date when reasons for the decision are given”), §25.7.4 (“The application for a certificate of a point of law and for permission to appeal may be made in the same application. The procedure is the same as the interim applications procedure. … The Court may decide to grant the certificate even if it decides to refuse permission to appeal. The certificate will be used in any application to the Supreme Court itself for permission to appeal”), §25.7.5 (“The right of appeal to the Supreme Court applies only to substantive decisions. There is no appeal from the decision of the Court if permission to apply for judicial review is refused”). 23.2.6 Procedural rigour: appeal to the CA. CPR 52 (appeals); CPR PD52A (appeals: general provisions), PD52C (appeals to the Court of Appeal). Harverye v SSHD [2018] EWCA Civ 2848 at §56 (grounds of appeal must set out “clearly and ‘as concisely as practicable’ the relevant part of the decision and the way(s) in which it is said to be wrong or unjust. … No more is required. … Indeed, no more may be incorporated”), §57 (skeleton argument must be concise, cross-referenced to the bundle, self-contained and avoid extensive quotations), §58 (“Subject to the intervention and guidance of the court, oral submissions should fall within the scope of, and elucidate, the skeleton argument”), §59 (“compliance with the Rules will ensure that appeal hearings are properly focused, as they must be”). 23.2.7 Substantive appeal: rolled-up hearing in the CA. R (Tarmac Aggregates Ltd) v Secretary of State for Environment, Food and Rural Affairs [2015] EWCA Civ 1149 [2016] PTSR 491 at §1 (Sales LJ: “For reasons of expedition, the appeal came before us on a ‘rolledup’ basis, for the court to consider whether to grant permission to appeal and, if so, then to hear the appeal”); cf {21.4} (directing a rolled-up hearing). 23.2.8 Procedural rigour/flexibility: amendment of JRG in appellate court. R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §31 (HL granting permission to amend JRG to challenge later decision and overcome delay objection); R v Chief Constable of the North Wales Police, ex p AB [1999] QB 396, 426G-H (in CA claimant focusing on entirely new procedural fairness point); R v SSHD, ex p Bugdaycay [1987] AC 514 (Musisi’s successful unreasonableness challenge taken up for the first time in the HL); R v Portsmouth City Council, ex p Faludy [1999] ELR 115 (CA declining to consider new argument; emphasising importance of taking points at the outset); R (O’Byrne) v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 499 [2002] HLR 567 (CA) at §15 (claimant given permission to amend the notice of appeal to take the only seriously arguable point in the case) (HL is at [2002] 347

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UKHL 45 [2002] 1 WLR 3250); R (Association of Pharmaceutical Importers) v Secretary of State for Health [2001] EWCA Civ 1986 [2002] EuLR 197 at §39 (reply point, as to breach of EU Transparency Directive, not open to claimant because not pleaded); R (Hargrave) v Stroud District Council [2002] EWCA Civ 1281 [2002] 3 PLR 115 at §40 (Buxton LJ: “if an irrationality challenge is to be taken it needs to be taken early and in detail, and not left to be explained in this court”); B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 [2005] 1 WLR 3796 at §17 (CA allowing reliance for first time on HRA argument, although “regrettable” that arising “so late in the day”; “wrong to shut the argument out” since “akin to submissions going to jurisdiction”); 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 (Greenpeace Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWCA Civ 1656 [2006] Env LR 627 at §15 (“the responsible approach now is surely to have the substantial issues … properly settled by the court’s adjudication”); cf SXH v CPS [2017] UKSC 30 [2017] 1 WLR 1401 (HRA damages claim) at §§39, 47 (far too late to allow new challenge to continuation of prosecution). 23.2.9 Procedural flexibility: new ground/point advanced on appeal hearing. R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 [2014] AC 610 at §67 (allowing claimant to raise a new point which troubled the SC at the hearing); R (Badger Trust) v Welsh Ministers [2010] EWCA Civ 807 at §2 (CA raising a new point, adopted by the claimant; giving permission because “Late though the application was, the members of the court were required to consider the effect of an important statute and thought it right to do so on all … grounds”), §3 (defendant conceding that the claim should succeed on the new ground); R (Ghai) v Newcastle City Council [2010] EWCA Civ 59 [2011] QB 591 at §§4-5 (CA identifying a logically prior issue, on which ruling and which dispositive); R (R) v Children and Family Court Advisory and Support Service [2012] EWCA Civ 853 [2013] 1 WLR 163 at §44 (allowing claimant to develop new points in the CA, given the “need to undertake a comprehensive evaluation of the issues”). 23.2.10 Appeal by third party. R (MM (Lebanon)) v SSHD [2017] UKSC 10 [2017] 1 WLR 771 at 776H (successful appeal by nephew joined as interested party); R (Forge Care Home Ltd) v Cardiff and Vale University Health Board [2017] UKSC 56 [2017] PTSR 1140 at §§8, 13 (local authorities, joined as interested parties, appealing to the SC); R (Bushell) v Newcastle Upon Tyne Licensing Justices [2006] UKHL 7 [2006] 1 WLR 496 (judicial review granted to objectors, successful appeal by interested party licensee); R (Walmsley) v Lane [2005] EWCA Civ 1540 [2006] LGR 280 at §27 (successful appeal by TfL, joined as a party post-judgment); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §9 (appeal by Secretary of State against declaration of incompatibility); R (Middleton) v West Somerset Coroner [2004] UKHL 10 [2004] 2 AC 182 (Secretary of State appealing); R v Manchester Stipendiary Magistrate, ex p Granada Television Ltd [2001] 1 AC 300 (appeal by Lord Advocate); R v Secretary of State for the Environment, Transport and the Regions, ex p Garland 10 November 2000 unreported at §9 (district auditor a ‘proper person to be heard’, but not a person directly affected, so would have no right of appeal); R (Officers A & B) v HM Coroner for Inner South London [2004] EWCA Civ 1439 [2005] UKHRR 44 (appeal by deceased’s family, from judicial review of coroner granted to police officers seeking anonymity); R (Hurst) v London Northern District Coroner [2005] EWCA Civ 890 [2005] 1 WLR 3892 at §7 (appeal by Metropolitan Police Commissioner in judicial review of coroner) (HL is [2007] UKHL 13 [2007] 2 AC 189); cf George Wimpey UK Ltd v Tewkesbury Borough Council [2008] EWCA Civ 12 [2008] 1 WLR 1649 (third party permitted to appeal albeit not a party to the proceedings in the High Court). 23.2.11 Appeal judge’s previous involvement. Khreino v Khreino [2000] 1 FLR 578 (CA properly constituted where including single Lord Justice who had previously refused permission to appeal on the papers); Sengupta v Holmes [2002] EWCA Civ 1104 (not unfair for judge who had refused permission to appeal on the papers to sit on substantive appeal).

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23.2.12 Appeal against adverse reasoning/inadequate remedy. R (McE) v Prison Service of Northern Ireland [2009] UKHL 15 [2009] AC 908 (claimants having succeeded below, appealing against declaration as not going far enough); R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 [2010] 1 WLR 363 at §5-6 (defendant having succeeded, but wishing to appeal finding as to whether reviewable, so High Court having granted a declaration against it on that issue); R v London Borough of Lambeth, ex p EkpoWedderman 23 October 1998 unreported (appeal only available from “judgment or order” of the Court); R v Lord Saville of Newdigate, ex p B The Times 15 April 1999 (exceptional case where appeal appropriate against unfavourable decision, but only on the basis of one aspect of the reasoning); Curtis v London Rent Assessment Committee [1999] QB 92 (in statutory appeal from rent assessment committee, appellant entitled to appeal to CA where High Court having quashed the impugned decision (on procedural grounds) but rejected other (substantive) grounds); R v A (No 2) [2001] UKHL 25 [2002] 1 AC 45 at §§170-171 (in the circumstances, HL having jurisdiction over appeal which concerned obiter statements by CA rather than the actual decision, given the importance of the matters); R (Green) v Police Complaints Authority [2002] EWCA Civ 389 [2002] UKHRR 985 at §72 (CA entertaining “an appeal essentially against the reasons”, despite “the general principle … that appeals are against orders, not against the reasons given for them”) (HL is [2004] UKHL 6 [2004] 1 WLR 725); R (Beeson) v Dorset County Council [2002] EWCA Civ 1812 [2003] UKHRR 353 at §13 (common ground that judicial review should be granted for error of law, but Secretary of State nevertheless appealing on questions of HRA compatibility); R (Watts) v Bedford Primary Care Trust [2004] EWCA Civ 166 at §3 (judicial review refused below, but judge nevertheless “reached certain conclusions of law, embodied as declarations in his order, which the Secretary of State challenges on this appeal”); R (M) v Islington LBC [2004] EWCA Civ 235 [2005] 1 WLR 884 at §13 (appeal entertained where judge quashed the decision but claimant contending that he should have gone further); MH v Special Educational Needs and Disability Tribunal [2004] EWCA Civ 770 [2004] LGR 844 at §9 (explaining that judge below had allowed special educational needs appeal and remitted the case, but had gone on to give guidance as to the statutory scheme, against which guidance the appellant appealing to the CA). 23.2.13 Stay of High Court’s order or decision pending appeal. R (Downs) v Secretary of State for Environment, Food and Rural Affairs [2009] EWCA Civ 257 (no solid grounds to stay Administrative Court’s order pending appeal to CA). 23.2.14 Appeal and defendant’s fresh decision: rolling judicial review. {5.4} (‘rolling judicial review’). 23.2.15 Fresh evidence and appeal. {17.2.19} (fresh evidence in the CA); {17.2.20} (fresh evidence in the SC).

23.3 Nature of the appellate court’s approach. On a judicial review appeal, the Court of Appeal adopts an increasingly conspicuous principled restraint in considering whether an evaluative assessment arrived at by the Administrative Court was ‘wrong’. 23.3.1 Appeal: whether on ‘review’ the decision was ‘wrong’. CPR 52.21(1)-(4) (“(1) Every appeal will be limited to a review of the decision of the lower court unless – (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (2) Unless it orders otherwise, the appeal court will not receive – (a) oral evidence; or (b) evidence which was not before the lower court. (3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (4) The appeal court may draw any inference of fact which it considers justified on the evidence”); Singh v Public Service Commission [2019] UKPC 18 at §37 (“appellate court … will exercise disciplined restraint before departing from an evaluative decision by a lower court”). 349

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23.3.2 Appellate court’s approach to findings of fact: general. R (Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542 at §66 (Hickinbottom LJ, describing “the cautious approach” applicable “when considering findings of fact (including factual assessments) by the judge below”, but not agreeing here with all of judge’s analysis, intermediate assessments and findings of fact), referring R (Smech Properties Ltd) v Runnymede Borough Council [2016] EWCA Civ 42 [2016] JPL 677 at §29 (Sales LJ: “Where an appeal is to proceed, like this one, by way of a review of the judgment below rather than a re-hearing, it will often be appropriate for this court to give weight to the assessment of the facts made by the judge below, even where that assessment has been made on the basis of written evidence which is also available to this court. The weight to be given to the judge’s own assessment will vary depending on the circumstances of each particular case, the nature of the finding or factual assessment which has been made and the nature and range of evidential materials bearing upon it”); R (Roche Registration Ltd) v Secretary of State for Health [2015] EWCA Civ 1311 [2016] 4 WLR 46 at §35 (Sales LJ: “It is not sufficient that this court might have reached a different view of the facts if it had started from scratch or had decided to hold a re-hearing”). 23.3.3 Appellate court’s approach: findings of fact on written evidence. R (Adamson) v Kirklees Metropolitan Borough Council [2020] EWCA Civ 154 at §58 (referring to DB v Chief Constable of Police of Northern Ireland [2017] UKSC 7 [2017] NI 301 per Lord Kerr at §80: “The case for reticence on the part of the appellate court, while perhaps not as strong in a case where no oral evidence has been given, remains cogent”); R (British Telecommunications Plc) v HM Treasury [2020] EWCA Civ 1 at §4 (“the outcome of this appeal turns on the validity of two findings of fact made by the Divisional Court … the Divisional Court was entitled to make those findings of fact and, accordingly, the appeal is dismissed”), §45 (“We can only overturn a finding of fact if we conclude that it was wrong: CPR 52.21(3)”), §47 (“asking whether the Divisional Court had legitimate and proper grounds for reaching the findings of fact which are challenged on this appeal”), §§85, 105 (“legitimate and proper grounds” here); R (Z) v Hackney LBC [2019] EWCA Civ 1099 [2019] PTSR 2272 at §67 (Lewison LJ: “an appeal court should be reluctant to interfere with a lower court’s findings of fact, even where those findings are based on written rather than oral evidence”); DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301 at §80 (Lord Kerr, explaining that in “an appeal founded on a challenge to factual findings”, the “case for reticence on the part of the appellate court, while perhaps not as strong in a case where no oral evidence has been given, remains cogent”); R (Dickinson) v HMRC [2018] EWCA Civ 2798 [2019] 4 WLR 22 at §63 (appropriate to “give due weight to the distinct advantage that a first-instance judge has in assessing and evaluating evidence, even if the evidential material is entirely in writing”); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 at §48 (CA analysing the factual position for itself). 23.3.4 Appellate court’s approach: findings of fact as inferences from a document. R (Adamson) v Kirklees Metropolitan Borough Council [2020] EWCA Civ 154 at §60 (not appropriate for CA to “defer to the findings at first instance … where the result turns on inferences to be drawn from (and in the present case the interpretation of and the weight to be given to) a single document”) at §59 (referring to R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2019] UKSC 58 [2020] 2 WLR 1 at §31, describing a situation where a finding of fact is based “largely on the inferences to be drawn from legal or official documents”). 23.3.5 Appellate court’s approach: High Court had/digested different material. R (JJ Management LLP) v HMRC [2020] EWCA Civ 784 [2020] 3 WLR 545 at §69 (Simler LJ: “this court has not been provided with the underlying material that was available to the judge, and is in no position to go behind any of his findings (even if we wished to do so)”); R (Bowen) v Secretary of State for Justice [2017] EWCA Civ 2181 [2018] 1 WLR 2170 at §73 (“in this case, the court has to afford considerable deference to the judge’s decision …, given the amount of material deployed before her to which our attention was not and could not have been drawn within the time estimate for the hearing and the pre-reading estimates given 350

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by the parties”), §84 (judge’s conclusions “not obviously wrong”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010 at §166 (“appellate courts should be cautious in overturning findings of fact made by first instance judges. This is because first instance judges will have taken into account the whole ‘sea of the evidence’ rather than indulged in impermissible ‘island hopping’ to parts only of the evidence”). 23.3.6 Appeal against decision on question of interpretation. R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074 at §59 (CA disagreeing with High Court as to correct, objective interpretation of scheme of delegation); R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §35 (CA disagreeing with DC as to correct interpretation), §46 (“I have come to a different conclusion from the Divisional Court on the proper construction”); Lambeth LBC v Secretary of State for Communities and Local Government [2019] UKSC 33 [2019] 1 WLR 4317 at §§27-35 (SC deciding correct interpretation); Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669 [2019] PTSR 1714 at §§29, 35, 40 (CA deciding whether judge’s interpretation of policy correct); R (Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales [2016] EWCA Civ 797 [2018] 1 WLR 228 at §22 (whether judge “was right” as to question of statutory interpretation); R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46 [2016] AC 137 (correctness approach to question of statutory interpretation); {16.4} (interpretation as hard-edged review). 23.3.7 Appeal against decision as to whether breach of statutory duty. R (Garner) v Elmbridge LBC [2011] EWCA Civ 891 at §9 (whether discharge of statutory duty involved “a question of fact for the judge to decide”), §10 (but “we in this court are in as good a position as the judge to form our own view on this factual issue because the judge was considering the matter on the basis of documents that are now before this court”). 23.3.8 Appeal against decisions on breach of HRA. R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199 (Art 14 justification) at §41 (describing “the limited role that an appellate court should play when reviewing the decision of the lower court on the issue of proportionality under the ECHR. The appeal court does not second guess the first instance judge. It does not carry out the balancing task afresh as though it were rehearing the case but must adopt a traditional function of review, asking whether the decision of the judge below was wrong”); TDT v SSHD [2018] EWCA Civ 1395 [2018] 1 WLR 4922 at §§76-77 (judge was “wrong” to find Art 4 credible suspicion threshold had not been crossed); R (VC) v SSHD [2018] EWCA Civ 57 [2018] 1 WLR 4781 at §136 (CA declining to interfere where “no errors of law” in the judge’s approach, in a “finely balanced” case as to whether Art 3 threshold crossed). 23.3.9 Appeal against decision on HRA proportionality. R (R) v Chief Constable of Manchester [2018] UKSC 47 [2018] 1 WLR 4079 at §64 (Lord Carnwath, explaining that in considering HRA proportionality the CA should ask whether the decision of the court below is “wrong”, whether because of “some specific error of principle” or “because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion”); R (TP) v Secretary of State for Work and Pensions [2020] EWCA Civ 37 at §122 (“it is not the role of this Court simply to substitute its own assessment of proportionality for that of the High Court. Its function remains the traditional one of review, asking whether the decision of the court below was wrong”), §167; R (Z) v Hackney LBC [2019] EWCA Civ 1099 [2019] PTSR 2272 at §66 (need “to demonstrate an error or flaw in reasoning … such as to undermine the cogency of the conclusion … if there is no such error or flaw, the appeal court should not make its own assessment of proportionality”); R (Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 [2020] QB 1 (CA finding “no error of principle in the reasoning” of the DC); DPP v Ziegler [2019] EWHC 71 (Admin) [2020] QB 253 at §104 (“the test to be applied by an appellate court is not whether the first instance court’s conclusion was one which no reasonable court could have reached but whether that court’s assessment as to proportionality was ‘wrong’”); R (Mott) v Environment Agency [2018] UKSC 10 [2018] 1 WLR 1022 at §26 (“It was sufficient … that the [Court of Appeal] found no error in the judge’s 351

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reasoning, without needing to conduct their own independent assessment of proportionality”); R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182 [2018] QB 149 at §115 (High Court “entitled to conclude” that regulations struck a fair balance), §216 (evaluation of expert evidence “was a matter for the judge”); Re B (A Child) (Care Proceedings: Appeal) [2013] UKSC 33 [2013] 1 WLR 1911 at §84 (Lord Neuberger: “It is well established that a court entertaining a challenge to an administrative decision, i.e. a decision of the executive rather than a decision of a judge, must decide the issue of proportionality for itself. … However, this does not mean that an appellate court entertaining a challenge to a judicial decision, as opposed to an executive decision, must similarly decide the issue of proportionality for itself”), §88 (“If, after reviewing the judge’s judgment and any relevant evidence, the appellate court considers that the judge approached the question of proportionality correctly as a matter of law and reached a decision which he was entitled to reach, then the appellate court will not interfere”); cf Taylor v Solihull Metropolitan Borough Council [2020] EWHC 412 (Admin) [2020] ACD 412 at §50 (“Appellate courts hearing appeals on a point of law should not interfere with proportionality analyses … unless an error of law or logic or approach can be identified”, citing Granada UK and Retail Ltd v Pensions Regulator [2019] EWCA Civ 1032 [2019] Pens LR 20 at §§152-156); Scotch Whisky Association v Lord Advocate [2017] UKSC 76 [2017] SLT 1261 at §37 (“no basis on which the UK Supreme Court should depart from the [lower court]’s conclusions” on points relating to EU-law proportionality), §63 (courts below decided that the impugned measure was proportionate: “It is for the Supreme Court to determine whether this was a judgment that they were entitled to reach”). 23.3.10 Analogy: extradition appeals against decision on Art 8 proportionality. Extradition appeals are from the district judge (who hears oral evidence) to the High Court. BY v Cyprus [2019] EWHC 2637 (Admin) at §42 (“it is unnecessary for an appellate court to go so far as to find ‘a judicial review type error’”), citing Love v United States of America [2018] EWHC 172 (Admin) at §26 (appellate court decides whether district judge “was wrong”, including because “the overall evaluation was wrong”), §43 (“the correct focus is on the outcome, namely whether the decision on proportionality itself was wrong, rather than on any errors or omissions in the lower court’s reasoning”, citing Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin) [2016] 1 WLR 551 at §24); cf Norris v Government of the United States of America (No 2) [2010] UKSC 9 [2010] 2 AC 487 at §68 (“it is for this court to reach its own decision as to whether [the appellant’s] extradition would be compatible with his article 8 rights”). 23.3.11 Appeal against decision on Art 14 justification. R (TD) v Secretary of State for Work and Pensions [2020] EWCA Civ 618 at §47 (where error of approach by High Court, CA proceeding to “make its own assessment of the question of justification”), referring to R (R) v Chief Constable for Greater Manchester [2018] UKSC 47 [2018] 1 WLR 4079 at §56; R (H) v Ealing LBC [2017] EWCA Civ 1127 [2018] PTSR 541 at §103 (in relation to Art 14 justification: “This court cannot interfere with the judge’s conclusion unless the judge made an error of law or principle or his conclusion was outside the range of a proper decision”). 23.3.12 Appeal against decision on justification for discrimination. 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. There must be a critical and thorough evaluation of the evidence by the first instance judge. The appellate court does not re-perform that assessment (save where relevant new evidence is admitted) but considers whether the reasoning of the judge below was justified”), §§57, 67, 78 (judge entitled to conclude as he did); R (H) v Ealing LBC [2017] EWCA Civ 1127 [2018] PTSR 541 (justified indirect discrimination under s.19 Equality Act 2010) at §78 (“the judge was not entitled to reject [the] justification defence for the reasons he gave”), §81 (“I do not consider it was open to the judge to form that view on the material before him”).

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23.3.13 Appeal against decision on reasonableness. Flintshire County Council v Jayes [2018] EWCA Civ 1089 [2018] ELR 416 at §42 (the judge “erred in his conclusion” as to unreasonableness), §62 (the judge “did … err in law by concluding that it was Wednesbury unreasonable”); R (Joshi) v SSHD [2018] EWCA Civ 1108 at §33 (whether “reasonable grounds for suspecting” was “a matter for the judge to consider and decide on the evidence before him”); BDW Trading Ltd v Secretary of State for Communities and Local Government [2016] EWCA Civ 493 [2017] PTSR 1337 at §30 (CA disagreeing with the judge as to whether the inspector was “entitled to proceed as she did”); R (Muqtaar) v SSHD [2012] EWCA Civ 1270 [2013] 1 WLR 649 (application of Hardial Singh principles) at §46 (Richards LJ: CA should give “considerable respect” to the conclusions of the High Court judge “applying the law to the facts in an obviously careful and conscientious manner”, questions such as “unreasonable” involving “a large area of judgment”), applied in R (JM) v SSHD [2017] EWCA Civ 1669 [2018] 1 WLR 2329 at §84. 23.3.14 Appeal against decision on whether sufficiency of evidence/inquiry. Kenyon v Secretary of State for Housing Communities and Local Government [2020] EWCA Civ 302 at §39 (whether “judge erred in law” as to conclusion on sufficiency of evidence); R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §60 (on judicial review for failure of Tameside duty, appellate court asking whether High Court decision “wrong”); R (Kaur) v SSHD [2018] EWCA Civ 1423 [2018] Imm AR 1364 at §§37, 57 (CA concluding that High Court was “wrong” to find SSHD had failed to give proper consideration to an issue). 23.3.15 Appeal against decision on legitimate expectation. R (Alliance of Turkish Businesspeople Ltd) v SSHD [2020] EWCA Civ 553 [2020] 1 WLR 2436 at §67 (CA “entitled to review and interfere with the judge’s assessment, even though it involved an evaluation of facts”, as to “proportionality and fairness” of breach of substantive legitimate expectation, where judge failed to deal with relevant aspect); Gerber v Wiltshire Council [2016] EWCA Civ 84 [2016] 1 WLR 2593 at §40 (judge erred in finding legitimate expectation). 23.3.16 Appeal against decision as to substantive unfairness. R (Dickinson) v HMRC [2018] EWCA Civ 2798 [2019] 4 WLR 22 at §§62-63 (no basis for Court of Appeal to interfere with judge’s assessment of “conspicuous unfairness”, where “based upon a thorough-going review”, CA was “referred to none of the written materials”, and appropriate to “give due weight to the distinct advantage that a first-instance judge has in assessing and evaluating evidence”), §64 (“no reason … to disturb the judge’s findings” on substantive unfairness); {54.1} (substantive unfairness). 23.3.17 Appeal against decision as to legal adequacy of consultation. R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 [2016] 1 WLR 3923 at §§63-64 (CA disagreeing with High Court as to adequacy and fairness of consultation). 23.3.18 Appeal against decision as to breach of PSED {55.2.6}. R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 [2016] 1 WLR 3923 at §88 (CA reaching “a different view” from the High Court as to whether breach of PSED). 23.3.19 Appeal against decision as to procedural fairness. R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §38 (treated as sufficient that CA “disagree with the judge” as to extent of duty of procedural fairness), §54 (appeal allowed although the judge “directed himself correctly in law as to the minimum standards of procedural fairness”), §66 (disagreeing with judge on the question of whether apparent bias); R (Roche Registration Ltd) v Secretary of State for Health [2015] EWCA Civ 1311 [2016] 4 WLR 46 at §72 (whether judge was “right” as to finding on procedural fairness); R (L) v West London Mental Health NHS Trust [2014] EWCA Civ 47 [2014] 1 WLR 3103 (disagreement as to what procedural fairness required); R (Osborn) v Parole Board [2010] EWCA Civ 1409 [2011] UKHRR 35 at §58 (Sedley LJ: “whether a step or decision was unfair 353

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is an appellate question, not a review question”) (SC is [2013] UKSC 61 [2014] AC 1115); R (Abbey Mine Ltd) v Coal Authority [2008] EWCA Civ 353 at §27 (conclusion on unfairness one of “principle” being “open in this court to be fully re-considered”); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §32 (CA, dealing with the question whether inspection team had disclosed the gist to the claimant, “satisfied that the judge’s analysis is substantially sustainable and that we ought not to interfere with it”). 23.3.20 Appeal on decision as to amenability to judicial review. R (Holmcroft Properties Ltd) v KPMG LLP [2018] EWCA Civ 2093 at §56 (amenability to judicial review as “a question of law” for the appellate court). 23.3.21 Appeal against decision as to issues of delay. Mauritius Shipping Corp Ltd v Employment Relations Tribunal [2019] UKPC 42 at §12 (lower court’s decision to refuse permission on grounds of lack of promptness needing to be “one which was not open to it”); R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 at §21(8) (CA only interferes with delay discretions, as to extension of time and whether to refuse remedy, if “flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the judge’s conclusion is clearly wrong and beyond the scope of legitimate judgment”); Fishermen and Friends of the Sea v Environmental Management Authority [2018] UKPC 24 [2018] PTSR 1979 at §22 (“the discretion [to extend time] is that of the trial judge, with which an appellate court will only interfere if it finds some flaw in his reasoning”); Gerber v Wiltshire Council [2016] EWCA Civ 84 [2016] 1 WLR 2593 at §51 (judge wrong to grant an extension of time); R (Macrae) v Herefordshire District Council [2012] EWCA Civ 457 at §§12-22 (Sullivan LJ, treating the question of “promptness” as one for the CA to reconsider for itself), §36 (Pill LJ, identifying an error of principle requiring the CA “to re-exercise the discretion”); R (Manchester City Council) v St Helens Borough Council [2009] EWCA Civ 1348 [2010] PTSR 1157 at §63 (no “error of principle” in refusal of extension of time nor “plainly wrong”, so CA not interfering); R (T) v A School [2002] EWCA Civ 1349 [2003] ELR 160 at §23 (on appeal from refusal of permission for judicial review, CA treating delay as a matter of discretion for the Administrative Court judge); R v Restormel Borough Council, ex p Corbett [2001] EWCA Civ 330 [2001] 1 PLR 108 at §29 (decision as to refusal of remedy an exercise of “judgment”, so “closer re-examination on appeal than a pure exercise of discretion”); R v Secretary of State for Health, ex p Furneaux [1994] 2 All ER 652, 657f-658h; R v Vale of Glamorgan Borough Council, ex p James [1997] Env LR 195, 202 (“delay was entirely a matter for his discretion and there was no error of principle which would justify this court in interfering with his decision upon it”); R v Greenwich LBC, ex p Patterson (1994) 26 HLR 159 (CA overturning dismissal for delay); R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 AC 738, 750D (treating refusal of a remedy for delay as a matter for discretion not to be disturbed provided the Administrative Court takes into account the relevant factors), 749C (suggesting that question of what constitutes “detriment to good administration” resting on findings of fact with which appellate courts reluctant to interfere). 23.3.22 Appeal from case-management decisions. R (Michael) v Governor of HMP Whitemoor [2020] EWCA Civ 29 [2020] 1 WLR 2524 at §56 (“a case management decision will not be interfered with or reversed by appellate courts unless it was … ‘plainly wrong in the sense of being outside the generous ambit where reasonable decision-makers may disagree’”); Re Jordan’s Application for Judicial Review [2019] UKSC 9 [2019] HRLR 225 at §42 (overturning case-management decision taken without evident consideration of proportionality); BPP Holdings Ltd v HMRC [2017] UKSC 55 [2017] 1 WLR 2945 at §26 (appropriate for the UT to “develop guidance so as to achieve consistency” in the FTT, and for the CA to do the same in relation to the High Court, but not for the SC to interfere with that guidance), §33 (“appellate judge should only interfere where [a case-management] decision is … a decision which the appellate judge considers cannot be justified”); R (Hussain) v Secretary of State for Justice [2016] EWCA Civ 1111 [2017] 1 WLR 761 at §19 (Sales LJ, referring to “a case management decision of a kind that, on familiar principles, this court would only question if the judge has misdirected himself or has reached a decision which 354

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is clearly wrong, in the sense that no judge properly directing himself as to the relevant test could reach it”). 23.3.23 Appeal against decision as to expedition. R (Liberty) v Prime Minister [2019] EWCA Civ 1761 [2020] 1 WLR 1193 at §§5, 11 (case-management decision, here refusal of expedition, only if error of principle or plainly wrong as to be outside ambit of discretion). 23.3.24 Appeal against decision as to standing. {38.1.5} (standing: a question of judgment and appreciation). 23.3.25 Appeal against decision as to alternative remedy. R (M) v London Borough of Bromley [2002] EWCA Civ 1113 [2002] 3 FCR 193 at §36 (CA declining to interfere with Administrative Court on question of alternative remedy unless “plainly wrong”). 23.3.26 Appeal against decision as to interim remedy. R (Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA 594 at §80 (if correctly approached, CA will only interfere as to interim relief if “conclusions … irrational or otherwise plainly incorrect in law”); R (Mendes) v SSHD [2020] EWCA Civ 924 (allowing appeal against refusal of interim relief and remitting the case to the High Court); R (SB (Afghanistan)) v SSHD [2018] EWCA Civ 215 [2018] 1 WLR 4457 at §87 (interim remedies in immigration cases set aside on appeal); R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603, 664E-665B; R v Inspectorate of Pollution, ex p Greenpeace Ltd [1994] 1 WLR 570, 574H-575A, 576B-C, 578C; Francis v Royal Borough of Kensington and Chelsea [2003] EWCA Civ 443 [2003] 2 All ER 1052 at §30; R v Secretary of State for the National Heritage, ex p Continental Television BVio [1994] COD 121 (appeal against refusal of interim remedies); {20.1.11} (interim relief refused on the papers: renewal to open court). 23.3.27 Appeal against decision on live evidence/cross-examination. R (Jedwell) v Denbighshire County Council [2015] EWCA Civ 1232 [2016] PTSR 715 at §59 (appeal allowed against High Court refusal to allow cross-examination of planning officer in judicial review, the judge having “approached the question of cross-examination in a way that was wrong in principle”); Jones v Secretary of State for Wales [1995] 2 PLR 26 (CA allowing an appeal from a decision refusing cross-examination). 23.3.28 Appeal against decision on disclosure. R v Secretary of State for the Department of Environment, ex p London Borough of Islington (1991) [1997] JR 121 (allowing an appeal from an order for disclosure). 23.3.29 Appeal against permission to amend grounds for judicial review (JRG). R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297 at §57 (approach on appeal from permission to amend JRG). 23.3.30 Appeal against ruling on admissibility of evidence. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2018] UKSC 3 [2018] 1 WLR 973 (DC erred in law in treating leaked cable as inadmissible), §23 (asking whether the admission of the document “could have made a difference” to the outcome). 23.3.31 Appeal against decision as to remedy. R (PML Accounting Ltd) v HMRC [2018] EWCA Civ 2231 [2019] 1 WLR 2428 at §82 (first-instance judge had “a discretion whether to grant relief and on well-established principles [the CA] will not interfere with the exercise of that discretion unless the judge took irrelevant considerations into account or failed to take relevant considerations into account or was otherwise wrong”), §89 (“judge’s decision … was plainly a decision open to him”); R (YZ (China)) v SSHD [2012] EWCA Civ 1022 at §57 (discretion to refuse remedy was properly exercised; “There is no basis for interference by an appellate court”); R (Health & Safety Executive) v Wolverhampton City Council [2010] EWCA Civ 892 [2011] PTSR 645 at §37 (CA overturning judgment below where Admin Court “was persuaded to refuse relief … on a false basis”); R (Brown) v Carlisle City Council [2010] EWCA Civ 523 [2011] Env LR 71 at §§32-42 (judge had been wrong to refuse permission for judicial review on grounds that no remedy would be appropriate as a matter of discretion); 355

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R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 (CA overturning DC’s decision to refuse a remedy); R (Smith) v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291 [2006] 1 WLR 3315 (CA interfering with judge’s refusal of remedy as to whether material procedural flaw); R (Edwards) v Environment Agency [2006] EWCA Civ 877 [2007] Env LR 126 (CA) at §127 (discretionary refusal of remedy a matter for the High Court judge) (HL is [2008] UKHL 22 [2009] 1 All ER 57); R v Restormel Borough Council, ex p Corbett [2001] EWCA Civ 330 [2001] 1 PLR 108 at §29 (decision as to remedy an exercise of “judgment”, so “closer to re-examination on appeal than a pure exercise of discretion” albeit that judge’s conclusion “carries great weight”); R (Wainwright) v Richmond upon Thames LBC [2001] EWHC 1090 (Admin) at §53 (CA interfering as to discretionary refusal of remedy); R v Tandridge District Council, ex p Al Fayed [2000] 1 PLR 58, 62E (leaving open whether CA “free to exercise its discretion afresh”); R v Sheffield City Council, ex p H [1999] ELR 511, 520H (asking whether “satisfied that the first instance court erred in principle or arrived at a conclusion that was clearly wrong”); R v Secretary of State for the Environment, ex p Walters (1998) 30 HLR 328 (CA refusing to interfere); R v Islington LBC, ex p Degnan (1998) 30 HLR 723, 732 (asking whether “the discretion was clearly exercised on wrong principles”); R v Civil Service Appeal Board, ex p Bruce [1989] 2 All ER 907 (CA refusing to intervene). 23.3.32 Appeal against decision on costs. R (Parveen) v Redbridge LBC [2020] EWCA Civ 194 [2020] 4 WLR 53 at §23 (applying Lejonvarn v Burgess [2020] EWCA Civ 114 at §50: “There are … only two ways in which this court may interfere with a costs decision. The first is if there has been an error of law. The second … is … that the discretion was exercised in a manner which led to an unjust or perverse result”); R (Faqiri) v Upper Tribunal [2019] EWCA Civ 151 [2019] 1 WLR 4497 at §27 (whether judge erred in approach or exceeded the wide ambit of discretion such that decision wrong); Singh v Public Service Commission [2019] UKPC 18 at §2 (“issues as to costs generally fall within the discretion of the first instance judge”), §37 (ask whether “the lower court has made an error of law or of principle, or reached a decision which no reasonable court, applying law and principle correctly, could have reached”); R (Hunt) v North Somerset Council [2015] UKSC 51 [2015] 1 WLR 3375 at §15 (SC overturning costs order in judicial review, for error). 23.3.33 Other. R (Tracey) v Cambridge University Hospitals NHS Foundation Trust [2014] EWCA Civ 822 [2015] QB 543 at §9 (CA having allowed an appeal against a High Court order that there be no further hearing of judicial review proceedings on the basis that they had become academic: [2014] EWCA Civ 33).

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P24 Remedies. Where a ground for judicial review is established the Court has discretionary remedial power: to quash, mandate, prohibit, injunct and declare. 24.1 The remedial toolkit 24.2 The declaration 24.3 Remedy as a discretionary matter 24.4 The remedies in action

24.1 The remedial toolkit. Judicial review has ancient roots in proceedings for a trilogy of distinct ‘prerogative remedies’: certiorari, mandamus and prohibition. Now known as quashing, mandatory and prohibiting orders, these operate within the unified judicial review procedure, alongside the remedies of declarations, injunction, and permissible monetary remedies (damages, debt and restitution). 24.1.1 CPR 54-exclusive remedies: mandatory, prohibiting, quashing orders. Senior Courts Act 1981 s.31(1) (“(1) An application to the High Court for one or more of the following forms of relief, namely – (a) a mandatory, prohibiting or quashing order; (b) a declaration or injunction under subsection (2); or (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, shall be made in accordance with rules of court by a procedure to be known as an application for judicial review”); CPR 54.2 (“When this Section must be used. The judicial review procedure must be used in a claim for judicial review where the claimant is seeking – (a) a mandatory order; (b) a prohibiting order; (c) a quashing order; or (d) an injunction under section 30 of the [Senior Courts] Act 1981 (restraining a person from acting in any office in which he is not entitled to act).”); CPR 54.3 (“Where the claimant is seeking a declaration or injunction in addition to one of the remedies listed in rule 54.2, the judicial review procedure must be used”); Fun World Co Ltd v Municipal Council of Quatre Bornes [2009] UKPC 8 at §§24, 54 (outside judicial review proceedings, an English High Court “could not, therefore, entertain an application for a mandatory order”); {2.1.7} (common law origins, statutory underpinning); {2.1.19} (the lexicon of judicial review: ancient and modern); Administrative Court: Judicial Review Guide (2020 edition) at §§11.3-11.5. 24.1.2 CPR 54-permitted remedies: declaration, injunction, damages, restitution, sum due. Senior Courts Act 1981 s.31(2) (“A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made”), s.31(4) (“On an application for judicial review the High Court 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”); CPR 54.3(1) (“(1) The judicial review procedure may be used in a claim for judicial review where the claimant is seeking – (a) a declaration; or (b) an injunction. (Section 31(2) of the Supreme Court Act 1981 sets out the circumstances in which the court may grant a declaration or injunction in a claim for judicial review) (Where the claimant is seeking a declaration or injunction in addition to one of the remedies listed in rule 54.2, the judicial review procedure must be used)”). Administrative Court: Judicial Review Guide (2020 edition) at §11.6 (declaration), §11.8 (injunction), §11.9 (damages, restitution, debt). 24.1.3 Statutory test for grant of declaration or injunction in judicial review. Senior Courts Act 1981 s.31(2) (“A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to – (a) the nature of the matters in respect of which relief may be granted by mandatory, prohibiting or quashing orders; (b) the nature of the persons and bodies against whom relief may be granted by such orders;

THE NATURE OF JUDICIAL REVIEW

and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be”). 24.1.4 Statutory test for grant of damages, restitution, sum due in judicial review. Senior Courts Act 1981 s.31(4) (“On an application for judicial review the High Court 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 court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application”). 24.1.5 Monetary remedy must not be the sole remedy sought. CPR 54.3(2) (“A claim for judicial review may include a claim for damages, restitution or the recovery of a sum due but may not seek such a remedy alone”); {2.6.19} (judicial review linked to damages claim not an abuse of process); {2.6.16} (judicial review as a springboard: tort claims); {2.6.17} (judicial review as a springboard: restitution claims). 24.1.6 Duty to refuse a remedy under statutory materiality test (HL:NSD). {4.1.3} (HL:NSD test: refusal of a remedy); {4.1.5} (disapplication of the HL:NSD test: certified exceptional public interest). 24.1.7 The 1977 reforms: unification of remedies. O’Reilly v Mackman [1983] 2 AC 237, 283D (Lord Diplock, explaining that the new 1977 RSC Order 53 r 1 “enables an application for a declaration or an injunction to be included in an application for judicial review”), 283H (“a procedure by which every type of remedy for infringement of the rights of individuals that are entitled to protection in public law can be obtained in one and the same proceeding by way of an application for judicial review”); {2.1.14} (the 1977 procedural reforms).

24.2 The declaration. The declaration, with its flexibility and breadth, has a special function and importance in public law. By means of a declaration the Court can pronounce, in a binding order, on what is the correct or required position as a matter of law. 24.2.1 Statutory test for grant of declaration in judicial review. Senior Courts Act 1981 s.31(2) (“A declaration may be made … under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to – (a) the nature of the matters in respect of which relief may be granted by mandatory, prohibiting or quashing orders; (b) the nature of the persons and bodies against whom relief may be granted by such orders; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be”). 24.2.2 HRA s.4: declaration of incompatibility. {12.2} 24.2.3 Declaration can be sole remedy sought. CPR 54.3(1)(a) (declaration may be sought by judicial review), cf CPR 54.3(2) (monetary remedy must not be the sole remedy sought); CPR 40.20 (“The court may make binding declarations whether or not any other remedy is claimed”); Milebush Properties Ltd v Tameside Metropolitan Borough Council [2011] EWCA Civ 270 [2011] PTSR 1654 at §34 (Mummery LJ: “declaratory relief … is available in diverse circumstances in both public and private law proceedings … whether or not any other remedy is claimed”); R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1, 36G-H (declaration available “whether or not the court could also make a prerogative order”). 24.2.4 Declaration is binding. CPR 40.20 (“The court may make binding declarations”); 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). 24.2.5 Basic conditions for a declaration. R (Robert Hitchins Ltd) v Worcestershire County Council [2014] EWHC 3809 (Admin) at §72 (Hickinbottom J: “This court has power to grant 358

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a declaration in judicial review proceedings where it considers it ‘just and convenient in all the circumstances of the case’ …, even where a declaration is the only relief claimed. … That is clearly a wide discretion, but it has to be exercised judicially. It has been said that the court should only make such a declaration if three conditions are satisfied, namely (i) the question under consideration is a ‘real question’, (ii) the person seeking the declaration has a ‘real interest’, and (iii) there has been ‘proper argument’”, referring to Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 1 WLR 1756A-B), §74 (Greenwich conditions satisfied here). 24.2.6 Virtues of the declaration. R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) [2019] 1 WLR 1686 at §174 (Walker J: “in modern times the declaration has proved to be a particularly apt remedy in public law … and … time and again it has demonstrated its usefulness as a flexible remedy, capable of adaptation to new circumstances”); R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481 at §48 (tracing the history of the declaration back to 1883); Governor and Company of the Bank of Scotland v A Ltd [2001] EWCA Civ 52 [2001] 1 WLR 751 at §45 (declarations having “performed a crucial function” in the emerging “modern law of judicial review”); R v Ministry of Agriculture, Fisheries and Food, ex p Dairy Trade Federation Limited [1998] EuLR 253, 257E-F (Dyson J: “Declarations are a useful discretionary remedy, and the courts are increasingly adopting a flexible and pragmatic approach to their use”); In re S (Hospital Patient: Court’s Jurisdiction) [1996] Fam 1, 19G (importance of the law being able to give “practical help”); Gouriet v Union of Post Office Workers [1978] AC 435, 501C-D (declaration “a useful power” which “over the course of the last hundred years it has become more and more extensively used”), 513G (“it was recognised no later than 1899 that it was an ‘innovation of a very important kind’”); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2018] UKSC 3 [2018] 1 WLR 973 at §52 (declaration could “limit any invalidity”) §53 (accepting that failure properly to consult on one aspect “could lead to a declaration of limited validity”). 24.2.7 Collateral declaration/declaration in favour of the defendant/third party. R (Simply Learning Tutor Agency Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 2461 (Admin) at §61 (declaration in favour of defendant’s construction of the statutory provision); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 (claim rejected and declarations granted in favour of defendant); R v SSHD, ex p Gashi 15 June 2000 unreported at §§6, 15 (no declaration needed, in favour of defendant, because judgment speaking for itself); In re appeals by Governing Body of JFS [2009] UKSC 1 [2009] 1 WLR 2353 at §23 (declaration granted in favour of respondent to appeal, against the Legal Services Commission, that withdrawal of public funding would be unlawful); R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 [2010] 1 WLR 363 at §§5-6 (defendant having succeeded, but wishing to appeal High Court’s finding as to whether reviewable, so High Court granting a declaration against it on that issue); R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 246 (Admin) (media obtaining declaration in judicial review proceedings, as to right of access to pleadings from court records). 24.2.8 Declaration that measure not justified yet. R (Coll) v Secretary of State for Justice [2017] UKSC 40 [2017] 1 WLR 2093 at §45 (declaration that direct discrimination contrary to Equality Act 2010 s.13(1), for which no justification “has yet been shown”); R (Ward) v Hillingdon LBC [2019] EWCA Civ 692 [2019] PTSR 1738 at §111 (declaration that indirect discrimination contrary to Equality Act 2010 s.19 “unlawful unless justified” and defendant “has not yet shown such justification”); {58.4.6} (not justified yet). 24.2.9 Declaration in action: illustrations. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §280 (declaration sufficient; the declaration “will ensure that the [Airports National Policy Statement] has no legal effect unless and until the Secretary of State decides to conduct a review … in accordance with the judgment of this court”); R (TD) v Secretary of State for Work and Pensions [2020] EWCA Civ 618 at §93 (declaration that claimants’ Art 14 rights breached), §94 (“It will be a matter for the Secretary of State to decide how to respond … the design of any … scheme will in the first instance be for the 359

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Secretary of State, although it must be done in a way which is lawful, including by reference to the Convention rights”); R (Nmai) v SSHD [2020] EWHC 1139 (Admin) at §72 (declaration that claimant a British citizen: {49.2.3} (British citizenship raising an objective question of fact)); R (O’Brien) v Independent Adjudicator [2019] EWHC 2884 (Admin) [2020] 1 WLR 1393 at §86 (declaration of unlawfulness sufficient here); R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin) [2019] ACD 148 at §56 (declaration of unlawfulness the appropriate remedy); R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §175 (declaration of breach of common law duty of fairness); R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 (declaration that Brexit notification could not lawfully be given without primary legislation); Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §153 (declaration that Art 2 investigative duty breached); Wightman v Secretary of State for Exiting the European Union (Case C-621/18) [2019] QB 199 (successful proceedings seeking declaration that Brexit notification not irrevocable); R (Othman) v SSHD [2019] EWHC 340 (Admin) at §92 (declaration that claimant a British citizen); R (TW) v Hillingdon LBC (No 2) [2019] EWHC 157 (Admin) (order confirming that declarations in previous proceedings continue in force); R (L) v Chief Constable of Surrey [2017] EWHC 129 (Admin) [2017] 1 WLR 2047 at §21 (declaration that arrest unlawful “would lead to the removal of any record … from the police national computer”); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §91 (declaration that segregation unlawful); R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52 at §46 (formal declaration would add nothing to judgment recording Secretary of State’s concessions); R (Andrews) v Minister for the Home Office [2019] EWHC 1126 (Admin) at §33 (declaration that voter assistance device not meeting requirement in applicable rule); R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 [2011] 1 AC 437 at §79 (declaration that off-site development not a lawful consideration in making of compulsory purchase order); R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54 [2011] 2 AC 15 at §§3, 17 (declaration that overpaid benefits only recoverable under the Act); R (Walker) v Secretary of State for Justice [2009] UKHL 22 [2010] 1 AC 553 at §§3, 37, 123 (declaratory relief appropriate, in relation to Secretary of State’s breach of duty to provide treatment courses in prisons); R v Hillingdon LBC, ex p Islam (Tafazzul) [1983] 1 AC 688 (declaration that finding of intentional homelessness unsustainable); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (declaration that unfair treatment of probationary police officer); R v SSHD, ex p Doody [1994] 1 AC 531 (declarations as to procedural duties owed to mandatory lifers). 24.2.10 Declaration generally appropriate where unlawfulness shown. {24.3.2} 24.2.11 Advisory declarations/opinions: court’s jurisdiction. R (Bus and Coach Association Ltd) v Secretary of State for Transport [2019] EWHC 3319 (Admin) at §38 (court having “power to make” an order “declaring the meaning or effect of a legislative provision”); R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) [2019] 1 WLR 1686 at §165 (“this court can give a declaration which amounts to an advisory opinion on a theoretical question, so long as that question needs to be answered for a real practical purpose”); In re S (Hospital Patient: Court’s Jurisdiction) [1996] Fam 1, 18A (“the development of a new advisory declaratory jurisdiction”); R v SSHD, ex p Mehari [1994] QB 474, 491G-H (“there are circumstances in which the public law court ought to exercise the jurisdiction, which it certainly possesses, to give advisory opinions”); Woolf Report, Access to Justice (1996) at 252 (advocating “advisory declarations when it is in the public interest” but “limited to cases where the issue was of public importance and was defined in sufficiently precise terms, and where the appropriate parties were before the court”); Law Com No 226, Administrative Law: Judicial Review and Statutory Appeals at 120. 24.2.12 Advisory declarations/opinions: use sparingly. R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 597 (Admin) at §44 (“the court’s general disinclination to give advisory opinions”); R (Stamford Chamber of Trade & Commerce) v Secretary of State for Communities & Local Government [2010] EWCA Civ 992 at §13 360

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(Laws LJ: “Though there are cases and perhaps especially in the public law field where it is right for the court to give an advisory opinion, that remains an exceptional course requiring particular justification. The court’s resources have to be deployed as effectively as possible and the court has to have in mind the overriding objective set out in Part 1 of the Civil Procedure Rules”); R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2759 (Admin) [2003] 3 LRC 335 at §46 (“advisory declarations” as “valuable tools” which “should be sparingly used. Their essential purposes are, first, to reduce the danger of administrative activities being declared illegal retrospectively, and, secondly, to assist public authorities by giving advice on legal questions which is then binding on all”), §47(iii) (need “demonstrably good reason”), §52 (jurisdiction “to be exercised only in exceptional circumstances”); R v Ministry of Agriculture, Fisheries and Food, ex p Live Sheep Traders Ltd [1995] COD 297 (advisory opinion “will be looking prospectively to the future, not retrospectively at the past”); R (Mahmood) v SSHD [2001] 1 WLR 840 at §29 (court “not generally concerned to give advisory opinions as to how public authorities ought to act” but “there may be circumstances when it is its duty to do so”); R (Burke) v General Medical Council [2005] EWCA Civ 1003 [2006] QB 273 at §21 (“The court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice”); R (Chester) v Secretary of State for Justice [2010] EWCA Civ 1439 [2011] 1 WLR 1436 at §30 (inappropriateness of “an advisory opinion as to the legally proper content of forthcoming legislation”) (SC is [2013] UKSC 63 [2014] AC 271); R (Clue) v Birmingham City Council [2010] EWCA Civ 460 [2011] 1 WLR 99 at §81 (declining to address certain hypothetical scenarios, to “give what is, in effect, an advisory opinion as to the legal position on hypothetical facts where there has been no decision by the primary decision-maker”); {4.5} (utility: hypothetical/academic matters). 24.2.13 Advisory declaration/opinion: application entertained. R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) [2019] 1 WLR 1686 at §167 (“satisfied that in the present case there was a real practical purpose in the grant of the incompatibility declaration”); R (Customs and Excise Commissioners) v Canterbury Crown Court [2002] EWHC 2584 (Admin) at §27 (Laws LJ: “there is a plain public interest in this court entertaining what has become an application for an advisory declaration”); London Borough of Islington v Camp (1999) [2004] LGR 58 (claim entertained albeit no dispute or proposed action, because serving a useful purpose in the public interest); P v P (Ancillary Relief: Proceeds of Crime) [2003] EWHC 2260 (Fam) [2004] Fam 1 (declarations clarifying legal advisers’ duties in relation to assets being proceeds of crime); R (Simply Learning Tutor Agency Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 2461 (Admin) at §§37-39 (entertaining judicial review claim for a declaration on a question of statutory interpretation, where genuine dispute and real practical effect). 24.2.14 Advisory declaration/opinion: invitation declined. R (Bus and Coach Association Ltd) v Secretary of State for Transport [2019] EWHC 3319 (Admin) at §67 (inappropriate where “no issue or dispute between the parties” and declaration would lack “binding legal force”); R (Stamford Chamber of Trade & Commerce) v Secretary of State for Communities & Local Government [2010] EWCA Civ 992 at §13 (matter fact-specific and historic only); R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2759 (Admin) [2003] 3 LRC 335 (declining to rule on interpretation of UN Resolution, relevant to imminent decision as to war on Iraq); R v Portsmouth Hospitals NHS Trust, ex p Glass [1999] 2 FLR 905 (Court declining declaration as to circumstances where doctors could override wishes of nextof-kin; inapt to seek prospective clarity given need for focus on particular circumstances); R v SSHD, ex p Pinfold [1997] COD 338 (wrong to embark on giving guidance as to how the new Criminal Cases Review Commission should discharge its functions); R v DPP, ex p London Borough of Merton [1999] COD 358 (declining to entertain hypothetical matter where likely to be of limited assistance for the future); R (Henlow Grange Health Farm Ltd) v Bedfordshire County Council [2001] EWHC Admin 179 (judicial review inappropriate where in effect would be an advisory declaration while Secretary of State’s planning decision awaited); Amalgamated Metal Trading Ltd v City of London Police Financial Investigation Unit [2003] EWHC 703 (Comm) [2003] 1 WLR 2711 (whether monies were proceeds of 361

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crime should be left for resolution between parties between whom it arose); {4.5} (utility: hypothetical/academic issues). 24.2.15 Advisory declaration/opinion: other cases. R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWCA Civ 1719 [2019] QB 1075 (DC granting, and CA upholding, declarations as to scope of customary international law and common law regarding immunities of members of special missions, following a special mission visit, to clarify the law); Wightman v Secretary of State for Exiting the European Union (Case C-621/18) [2019] QB 199 (permission for judicial review and reference to the CJEU on the issue of whether Brexit notification could lawfully be withdrawn), §28 (not an advisory opinion “on general or hypothetical questions … but … necessary for the effective resolution of a dispute”), §29 (“a genuine and live issue, of considerable practical importance”); R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 [2011] 1 AC 1 (SC addressing, with some disquiet, important Art 1 and Art 2 issues albeit academic in the present case), §129 (Lord Walker: “It is not the function of this court to deliver advisory opinions”), §155 (Lord Brown: “This is really not an area of the law in which advisory opinions are likely to prove especially helpful”), also §§113, 134 (“it is not at all clear what this court is doing”); Hounslow LBC v Powell [2011] UKSC 8 [2011] 2 AC 186 at §§47, 101 (declining to give detailed procedural guidance as to Art 8 defences and possession claims); Oxfordshire County Council v Oxford City Council [2006] UKHL 25 [2006] 2 AC 674 (CPR8 claim by registration authority for guidance on issues arising from town green registration inquiry); British Pregnancy Advisory Service v Secretary of State for Health [2011] EWHC 235 (Admin) [2012] 1 WLR 580 (declaration as to proper interpretation of Abortion Act); Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387 [2010] 1 WLR 318 (Part 8 claim as to validity of provision in collective agreement; wrong to take an unduly purist view or issue involving no immediate lis between the parties, where important question of statutory interpretation, brought before the Court by an appropriate procedure); R (Governor of HMP Wandsworth) v Kinderis [2007] EWHC 998 (Admin) [2008] QB 347 (prisoner governor’s judicial review to establish which of two inconsistent orders applicable); R (Howard League for Penal Reform) v SSHD [2002] EWHC 2497 (Admin) [2003] 1 FLR 484 at §140 (not the court’s task “to set out to write a textbook or practice manual or to give advisory opinions”); R v Inland Revenue Commissioners, ex p Bishopp (1999) 11 Admin LR 575, 588f-589a (“the greater the extent to which the dispute between the parties is based on hypothetical facts, the more likely it is that, as a matter of discretion, the court will refuse”); R v Birmingham City Council, ex p Equal Opportunities Commission [1994] ELR 282, 292E-293B (permission set aside “because what was being sought was a declaration of an advisory nature which was not connected with any relevant decision”); R (Ellis) v Chief Constable of Essex Police [2003] EWHC 1321 (Admin) [2003] 2 FLR 566 (legality of police “Offender Naming Scheme”) at §37 (“If the situation was one where the scheme was obviously lawful or obviously unlawful, then the court could grant a declaration to this effect. This would be desirable because it would remove any doubt as to the legality of the scheme”); R (Lord Chancellor) v Chief Land Registrar [2005] EWHC 1706 (Admin) [2006] QB 795 (Lord Chancellor seeking declarations as to lawfulness or otherwise of his scheme, doubts having been expressed by the Chief Land Registrar); General Dental Council v Savery [2011] EWHC 3011 (Admin) (claim by GDC for declaration as to entitlement to disclose records for disciplinary purposes). 24.2.16 Declaration as to criminality of conduct. R (Bus and Coach Association Ltd) v Secretary of State for Transport [2019] EWHC 3319 (Admin) at §47 (“a civil court should avoid giving a declaration on a question which it is the role of the criminal courts to decide” and “should only grant a declaration that particular future conduct would or would not be contrary to the criminal law if there is a cogent reason to do so”); R (Fire Brigade Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (Admin) [2018] 3 CMLR 27 at §110 (inappropriate to grant any relief whose effect would be that authority’s conduct criminal); Rushbridger v HM Attorney-General [2003] UKHL 38 [2004] 1 AC 357 (only appropriate in an exceptional case to entertain civil proceedings for a declaration as to the legality in criminal law of a proposed course of conduct); R (Kay) v Metropolitan Police Commissioner [2008] UKHL 69 [2008] 1 WLR 2723 (declaration apt despite criminal consequences); R (I-CD 362

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Publishing Ltd) v Secretary of State [2003] EWHC 1761 (Admin) at §27 (wrong in principle to entertain claim for declaration as to whether proposed future modified conduct would bring claimant within statutory provision and so be non-criminal); R (Haynes) v Stafford Borough Council [2006] EWHC 1366 (Admin) [2007] 1 WLR 1365 at §§32, 52 (appropriate to decide issue in the public interest, where construing statutory scheme and not declaring commission of any offence by any individual); R v DPP, ex p Camelot Group Plc (1998) 10 Admin LR 93, 104C (adopting a flexible approach, the only rigid rule being that Court should not entertain the matter where criminal proceedings already on foot); R v Medicines Control Agency, ex p Pharma Nord Ltd (1998) 10 Admin LR 646, 660F-H (court would not be interfering with imminent criminal proceedings); R v Environment Agency, ex p Dockgrange Ltd [1997] Env LR 575 (Court dealing with the matter); R (Smeaton) v Secretary of State for Health [2002] EWHC 886 (Admin) [2002] 2 FLR 146 (whether use of morning-after pill would constitute criminal offence); R (NTL Group Ltd) v Ipswich Crown Court [2002] EWHC 1585 (Admin) [2003] QB 131 (whether claimant would commit criminal offence by diverting e-mails to obey special protection order); Blackland Park Exploration Ltd v Environment Agency [2003] EWCA Civ 1795 [2004] Env LR 652 (CA granting a declaration that claimant operating a “landfill”), §16 (parties having genuine and anxious interest in resolution of issue); R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] EWHC 713 (Admin) [2005] 1 WLR 2930 at §§21-25 (appropriate to deal with whether defendant would be exposed to criminal liability, where issue genuinely arising as alleged error of law in its decision, and the prosecuting authority having been served as an interested party); Bowman v Fels [2005] EWCA Civ 226 [2005] 1 WLR 3083 at §18 (CA proceeding despite being “wary of usurping the function of the criminal courts by interpreting a criminal statute unless it is very desirable”); British Pregnancy Advisory Service v Secretary of State for Health [2011] EWHC 235 (Admin) [2012] 1 WLR 580 (declaration as to proper interpretation of Abortion Act). 24.2.17 Declaration that primary legislation was incompatible with EU law. {12.1.1} 24.2.18 HRA s.4: declaration of incompatibility. {12.2}

24.3 Remedy as a discretionary matter.67 It is a first principle of judicial review that remedies (relief) are discretionary: as to whether to grant a remedy and as to what remedy. One prescribed basis for refusing a remedy is where it would mean prejudice, hardship or detriment to good administration in a case where the claimant is unduly delayed. Other procedural bars (standing, alternative remedy) and issues of materiality or utility can also be analysed in terms of the discretion to refuse a remedy. Beyond these, the Court will need a cogent reason if it is to exercise its residual discretion, to decline the claimant a practical and effective remedy, in a case establishing a material public law error on the part of the defendant public authority. 24.3.1 Duty to refuse a remedy under statutory materiality test (HL:NSD). {4.1.3} (HL:NSD test: refusal of a remedy); {4.1.5} (disapplication of the HL:NSD test: certified exceptional public interest); Administrative Court: Judicial Review Guide (2020 edition) at §§10.5.3, 11.11.1. 24.3.2 Declaration generally appropriate where unlawfulness shown. R (Hunt) v North Somerset Council [2015] UKSC 51 [2015] 1 WLR 3375 at §12 (Lord Toulson: “in circumstances where a public body has acted unlawfully but where it is not appropriate to make a mandatory, prohibitory or quashing order, it will usually be appropriate to make some form of declaratory order to reflect the court’s finding. In some cases it may be sufficient to make no order except as to costs; but simply to dismiss the claim when there has been a finding of illegality is likely to convey a misleading impression and to leave the claimant with

67The

equivalent paragraph in a previous edition was relied on in Woomera Co Ltd v Commissioner for Transport [2009] UKCFI 377 at §37 (Hon Saunders J); R (Adow) v Newham LBC [2010] EWHC 951 (Admin) at §14 (McCombe J).

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an understandable sense of injustice. That said, there is no ‘must’ about making a declaratory order, and if a party who has the benefit of experienced legal representation does not seek a declaratory order, the court is under no obligation to make or suggest it”); In re Brownlee [2014] UKSC 4 [2014] NI 188 at §34 (where unlawfulness in making of rules, but where accepted need to amend the rules retrospectively, declaration of unlawfulness appropriate); R (First Stop Wholesale Ltd) v HMRC [2012] EWHC 1106 (Admin) at §39 (Singh J: “in principle, if a claimant has succeeded in establishing that there has been an error of public law in the Administrative Court, normally, other things being equal, the court should reflect that in some form of declaratory relief. Justice would tend to suggest no less”); {24.3.14} (quashing order as a normal consequence of unlawfulness); {24.3.15} (quashing as a normal consequence of unlawfulness: other cases). 24.3.3 The Court’s discretion as to remedy.68 Bahamas Hotel Maintenance & Allied Workers v Bahamas Hotel Catering & Allied Workers [2011] UKPC 4 at §40 (Lord Walker: “All relief granted by way of judicial review is discretionary, and the principles on which the Court’s discretion must be exercised take account of the needs of good public administration”); R (Edwards) v Environment Agency [2008] UKHL 22 [2009] 1 All ER 57 at §63 (court’s discretion as to remedy, to be exercised having regard to “the nature of the flaw in the decision and the ground for exercise of the discretion”); R (Bibi) v Newham LBC [2001] EWCA Civ 607 [2002] 1 WLR 237 at §40 (“The court has two functions – assessing the legality of actions by administrators and, if it finds unlawfulness on the administrators’ part, deciding what [remedy] it should give”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 840B (“the court has an ultimate discretion … and may refuse to [set aside] in the public interest, notwithstanding that it holds and declares the decision to have been made ultra vires”); R v Secretary of State for the Environment, ex p Walters (1998) 30 HLR 328, 381 (need for “close attention both to the nature of the illegality of the decision, and its consequences”), applied in R (Fudge) v South West Strategic Health Authority [2007] EWCA Civ 803 at §67; R v Inner London South District Coroner, ex p Douglas-Williams [1999] 1 All ER 344, 347d-f (whether remedy “necessary or desirable … in the interests of justice”), applied in R (Onwumere) v SSHD [2004] EWHC 1281 (Admin) at §22; R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763, 774C-775B (remedy refused for reasons relating to “the needs of public administration”); R v Islington LBC, ex p Degnan (1998) 30 HLR 723, 730 (balancing exercise, as to “the individual right and the public interest in decisions being taken lawfully” and “the practical effect – or lack of it – of the illegality found”); R (Sacupima) v Newham LBC [2001] 1 WLR 563, 572E (effects of impugned decision only for short duration); R v Avon County Council, ex p Terry Adams Ltd [1994] Env LR 442, 477-478 (public interest consequences of granting remedy); R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §§45-46 (commercial motives of claimant not a reason to refuse relief); Administrative Court: Judicial Review Guide (2020 edition) at §§10.5.2, 11.10.1. 24.3.4 The discretion as to remedy encapsulated. R (Save our Surgery Ltd) v Joint Committee of Primary Care Trusts [2013] EWHC 1011 (Admin) at §4 (Nicola Davies J: “the grant of relief in judicial review is discretionary. The discretion must be exercised judicially and in most cases in which a decision has been found to be flawed it would not be a proper exercise of the discretion to refuse to quash it. … The discretion of the court in deciding whether to grant any remedy is a wide one. It can take into account many considerations including the need for good administration, delay, the effect on third parties and the utility of granting new relevant remedy. The decision can be exercised so as to partially uphold or partially quash the relevant administrative decision. … The interest of the particular applicant is not merely a threshold issue which ceases to be material once the requirement of standing has been satisfied, it may also bear upon the court’s exercise of its discretion as to the remedy, if any, which it should grant in the event that the challenge is well-founded. … When the defendant 68The

equivalent paragraph in a previous edition was relied on in R (Jones) v Mansfield District Council [2003] EWCA Civ 1408 [2004] Env LR 391 at §59 (Carnwath LJ).

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is a responsible public body the court may allow the judgment to ‘speak for itself’ and decline to grant further relief”), cited in Bonner v Secretary of State for Justice [2018] EWHC 2819 (Admin) at §61; Credit Suisse v Allerdale Borough Council [1997] QB 306, 355D (“The discretion of the court in deciding whether to grant any remedy is a wide one. It can take into account many considerations, including the needs of good administration, delay, the effect on third parties, the utility of granting the relevant remedy. The discretion can be exercised so as partially to uphold and partially quash the relevant administrative decision or act”); Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435, 460 (“The court has an overall discretion as to whether to grant [a remedy] or not. In considering how that discretion should be exercised, the court is entitled to have regard to such matters as the following: (1) The nature and importance of the flaw in the challenged decision. (2) The conduct of the [claimant]. (3) The effect on administration of granting [the remedy]”). 24.3.5 Discretion as to remedy: materiality/utility at common law. {4.2} (materiality/ absence of prejudice at common law); {4.5} (utility: hypothetical/academic issues); Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin) (statutory review) at §84 (Dove J: “If the court is satisfied that the decision would necessarily have been the same without the error of law which infects it then the court can exercise its discretion not to quash the decision. That judgment must be reached on the basis of the facts and matters as known at the time of the decision being taken”); R (H) v SSHD [2018] EWHC 2191 (Admin) at §78 (declining a declaration which would not “serve any purpose”); R (Champion) v North Norfolk District Council [2015] UKSC 52 [2015] 1 WLR 3710 (refusing relief as a matter of discretion) at §62 (“There is no reason to think that a different process would have resulted in a different decision, and [the claimant]’s interests have not been prejudiced”); Administrative Court: Judicial Review Guide (2020 edition) at §11.10.2.2 (error of law not material), §11.10.2.3 (remedy would serve no useful purpose), §11.10.2.4 (claimant has suffered no harm or prejudice). 24.3.6 Refusal of remedy: delay. Administrative Court: Judicial Review Guide (2020 edition) at §11.10.2.1; {26.1.17} (delay issues at the substantive hearing: s.31(6) only); {26.1.19} (delay affecting type of remedy). 24.3.7 Refusal of remedy: standing. {38.3.9} (standing addressed at the stage of discretion as to remedy). 24.3.8 Refusal of remedy: alternative remedy. {36.3.14} (alternative remedy and discretion to grant/refuse remedy). 24.3.9 Refusal of remedy: defendant relied on to comply with judgment. {10.1.16} (remedy and cooperation/respect: defendant relied on to comply). 24.3.10 Discretion as to remedy: remedy refused (illustrations). R (Wingfield) v Canterbury City Council [2019] EWHC 1974 (Admin) at §78 (court “may refuse relief where there has been a breach of EU law, if the substance of the EU right has been complied with”); R (PML Accounting Ltd) v HMRC [2018] EWCA Civ 2231 [2019] 1 WLR 2428 at §83 (reasons for discretionary refusal of relief); R (English Speaking Board (International) Ltd) v SSHD [2011] EWHC 1788 (Admin) at §§59-61 (refusing to quash regulations despite unlawful failure to consult, given limited damaging impact, desirable purpose and procedural nature of flaw); R (P) v HM Coroner for the District of Avon [2009] EWCA Civ 1367 at §33 (refusal to quash inquest jury’s verdict and order a fresh inquest, despite material misdirection by coroner, because lessons learned and no further benefits identified); R (Dimmock) v Secretary of State for Education and Skills [2007] EWHC 2288 (Admin) [2008] 1 All ER 367 at §44 (remedy not needed where deficiency solved by new clarificatory guidance); R (Tu) v SSHD [2002] EWHC 2678 (Admin) [2003] Imm AR 288 (no remedy where nationality unclear) at §24 (“pragmatic and sensible” solution); R v Criminal Injuries Compensation Board, ex p Aston [1994] PIQR 460 (technical flaw could have made no difference); R v Walton Street Justices, ex p Crothers [1995] COD 159 (no injustice caused and not in the interests of justice); R v Chief Constable of Devon and Cornwall, ex p Hay [1996] 2 All ER 711, 726e (not proper to 365

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“wind the film back” and put an officer back in service); King v East Ayrshire Council The Times 3 November 1997 (successful ground of challenge had not been advanced originally); R v SSHD, ex p Harry [1998] 1 WLR 1737, 1748F-G (relief not needed given indication of change of process and assurances as to future cases); R v Legal Aid Board, ex p W (Minors) [2000] 1 WLR 2502, 2510H (remittal would cause delay “incompatible with the welfare of the children”); R v Secretary of State for the Environment, Transport and the Regions, ex p Garland 10 November 2000 unreported at §44 (inequitable where claimant had previously agreed not to challenge); {10.3.10} (judicial responses to claimant non-disclosure); {31.3.4} (unclean hands etc). 24.3.11 Discretion as to remedy: remedy granted (illustrations). Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §152 (could be breach of court’s own HRA s.6 obligation if the court declined to give even a declaration having detected a breach of a Convention right); R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 (regulations quashed), §49 (“wrong message to public authorities” if race equality impact assessment breach “cured” by conducting assessment to validate impugned decision); R (Carlton-Conway) v London Borough of Harrow [2002] EWCA Civ 927 [2002] 3 PLR 77 (where planning officer should not have dealt with matter under delegated powers, judicial review granted even though planning committee had since ratified the decision); R v Immigration Appeal Tribunal, ex p Iqbal Ali [1994] Imm AR 295, 298-299 (fact that claimant now 21 not “in principle, a reason why I should refuse, in my discretion, to quash a decision made when he was younger and which may have been the wrong decision and the reasoning for which is, in any event, not clear”); R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 347B-C (quashing the decision, “a breach of the rules of natural justice having been established”, albeit that “the difficulties of reopening the matter now are obvious”); R v Manchester City Council, ex p S [1999] ELR 414 (remedy granted to require school to admit the claimant, having been unlawfully not admitted, even though school now full); R v Hillingdon Health Authority, ex p Goodwin [1984] ICR 800, 811D-E (remedy meaning delay but not so serious as to justify refusal); R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §§45-46 (commercial motives of claimant, in seeking to put pressure on lessee, not a reason to refuse relief); {20.1.25} (no interim relief: dangers of deciding to press ahead); {24.3.2} (declaration generally appropriate where unlawfulness shown); {24.3.14} (quashing order as a normal consequence of unlawfulness). 24.3.12 Discretion as to remedy: choice of remedy. R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin) [2020] QB 478 at §86 (although Crown Court not a party, quashing Crown Court decisions as well because inevitable consequence of logic of judgment); Fishermen and Friends of the Sea v Minister of Planning, Housing and the Environment [2017] UKPC 37 at §§52-53 (inappropriate to quash regulations, court proposing to declare unlawfulness of permit fee prescribed by the regulations, with mandatory order requiring reconsideration and amendment); R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §33 (declaration of unlawful consultation, but declining mandatory order: “it would not be proportionate to order Haringey to undertake a fresh consultation exercise in relation to a [scheme] which will have been in operation for two years and which it is not minded to revise”); R (Majed) v Camden LBC [2009] EWCA Civ 1029 at §32 (declaration, not quashing order, where failure to notify but planning permission implemented and enforcement action inconceivable); R (Guiney) v Greenwich LBC [2008] EWHC 2012 (Admin) (declaration only where aspect of planning permission complained of not capable of partial quashing); R (Rashid) v SSHD [2005] EWCA Civ 744 [2005] INLR 550 at §37 (wrong to declare entitlement to refugee status where claimant could no longer meet the criteria), §39 (declaring entitlement to indefinite leave to remain as “the appropriate response in the circumstances”); R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1986] 1 WLR 1 (declining to quash regulations, but declaring that they had been made unfairly), 14G-15B; R v Bristol Corporation, ex p Hendy [1974] 1 WLR 498 (mandatory order refused where breach of statutory duty caused by circumstances beyond defendant’s control); R (Murray) v Parole Board [2003] EWCA Civ 1561 at §24 (“logistical difficulties” 366

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no answer to question whether parole review delays excessive in breach of HRA:ECHR Art 5(4), but “answer would be, generally speaking, that no mandatory relief should be granted despite the breach”); CO Williams Construction v Donald George Blackman [1995] 1 WLR 102, 109E-H (impossible to “put the clock back and reverse the effect of the cabinet’s decision”, albeit leaving questions as to possible damages); R v Southwark Coroner’s Court, ex p Epsom Health Care NHS Trust [1995] COD 92 (quashing part of coroner’s verdict, but declining to order a new inquest, since no practical purpose, no need to remove any stigma and public interest in leaving central finding in place). R v Secretary of State for the Environment Transport and the Regions, ex p Watson [1999] Env LR 310, 325 (claimant “restricted to the [remedy] that adequately recognises the public law interest that he asserts”). 24.3.13 Discretion as to remedy: other illustrations. R (Community Pharmacies (UK) Ltd) v NHS Litigation Authority [2016] EWHC 1595 (QB) [2016] PTSR 1402 at §67 (Langstaff J, explaining that he would have refused relief as a matter of discretion on the basis that claimant was “arguing that the [defendant] was in error by adopting the very argument that [the claimant] had advanced before it”); Ganga v Commissioner of Police [2011] UKPC 28 at §29 (PC would have refused remedy as an exercise of discretion where claimants sought judicial review of Commissioner’s recommendations without even making representations to the decision-maker to seek to persuade it not to act on them); R v Inner London South District Coroner, ex p Douglas-Williams [1999] 1 All ER 344, 347d-f (where judicial review of coroner on grounds of misdirection of jury, test for remedy whether it is necessary or desirable to grant remedy in the interests of justice); R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) at §214 (fact that only one claimant relevant to the discretion as to remedy). 24.3.14 Quashing order as a normal consequence of unlawfulness. R (Edwards) v Environment Agency [2008] UKHL 22 [2009] 1 All ER 57 at §63 (“in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it”), applied in Criminal Injuries Compensation Authority v First-Tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1175 at §7(ii) (“In most cases in which a decision has been found to be flawed, it would not be a proper exercise of the court’s discretion to refuse to quash that decision”); R (Jones) v Metropolitan Police Commissioner [2019] EWHC 2957 (Admin) [2020] 1 WLR 519 at §75 (quashing “the usual relief” where decision made without statutory power); R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin) [2020] QB 478 at §80 (“an order made in excess of jurisdiction should generally be quashed”); R (Law Centres Federation Ltd) v Lord Chancellor [2018] EWHC 1588 (Admin) at §108 (“a wrong should not go without a remedy save in very exceptional circumstances, and this is not the type of case in which to deny the successful claimant the normal order”); cf Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334 [2020] 1 WLR 584 (PSED breach not material) at §21 (no general rule that PSED breach must involve decision being set aside). 24.3.15 Quashing as a normal consequence of unlawfulness: other cases. Tata Steel UK Ltd v Newport City Council [2010] EWCA Civ 1626 at §15 (“a planning permission is a public act and if it is found to be unlawful the normal result is it should be quashed and the matter regularized”); Berkeley v Secretary of State for the Environment [2001] 2 AC 603, 616F (“exceptional” not to quash ultra vires decision), 608C-D (discretion to refuse remedy “very narrow”), 615G (directly enforceable EU right); R (Jones) v Mansfield District Council [2003] EWCA Civ 1408 [2004] Env LR 391 at §59 (need for “care” in applying Berkeley); R (Richardson) v North Yorks County Council [2003] EWCA Civ 1860 [2004] 1 WLR 1920 at §42 (leaving open whether Berkeley’s true reach narrow); R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §46 (referring to Berkeley); R (Blewett) v Derbyshire County Council [2004] EWCA Civ 1508 [2004] Env LR 293 at §119 (applying Berkeley); R v Attorney General, ex p Imperial Chemical Industries [1987] 1 CMLR 72, 109 (“wrong in principle” to deny remedy “unless, at any rate, there are extremely strong reasons in public policy for doing so”); R v General Medical Council, ex p Toth [2000] 1 WLR 2209 at §6 (need “strong reasons in public policy”); R v Restormel 367

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Borough Council, ex p Corbett [2001] EWCA Civ 330 [2001] 1 PLR 108 at §17 (“the judge should incline to quash what is shown to be an unlawful decision”); R v Director General of Water Services, ex p Oldham Metropolitan Borough Council (1998) 96 LGR 396, 416b (wrong to refuse a remedy where unlawful failure of statutory enforcement); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1172F (“regrettable” if wronged litigant “sent away from a court of justice empty-handed”); R (South Wales Sea Fisheries Committee) v National Assembly for Wales [2001] EWHC Admin 1162 at §§54-55 (Court should be slow to leave in place invalid Order); R (Barwise) v Chief Constable of West Midlands Police [2004] EWHC 1876 (Admin) at §37 (“only in exceptional cases that relief will be refused if unlawful conduct is established”); R (Brent LBC) v Fed 2000 [2005] EWHC 2679 (Admin) [2006] ELR 169 at §67 (inappropriate to deny remedy where effect would be to qualify a clear statutory duty or usurp approving body’s function); R (Pridmore) v Salisbury District Council [2004] EWHC 2511 (Admin) [2005] 1 PLR 39 at §§39-41 (where cavalier disregard of planning requirements, denial of remedy “would come close to undermining the mandatory scheme of the legislation”); R (B) v Head Teacher of Alperton Community School [2001] EWHC Admin 229 at §23 (panel lacking jurisdiction and so “no question of discretion arises. The claimant is entitled to [a remedy] as of right”); R v Lincolnshire County Council and Wealden District Council, ex p Atkinson, Wales and Stratford (1996) 8 Admin LR 529, 539G (lacking jurisdiction), 549H (means entitled to a remedy “ex debito justiciae”); Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655, 695A (“where a statutory authority has acted ultra vires any person who would be affected by its act if it were valid is normally entitled ex debito justiciae to have it set aside”); Credit Suisse v Allerdale Borough Council [1997] QB 306, 342B-H (“general discretion” remains); Boddington v British Transport Police [1999] 2 AC 143, 176A-C (“grave objections to giving courts discretion to decide whether governmental action is lawful or unlawful”); Attorney General’s Reference No 2 of 2001 [2003] UKHL 68 [2004] 2 AC 72 at §176 (whether relief could be automatic under HRA:ECHR Art 6), §122 (“paradox” of the “illegal act which the court nevertheless does not restrain”); R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 at §41 (discretion to withhold relief “if there are pressing reasons for not disturbing the status quo”), §85 (finding of ultra vires “should normally lead to the delegated legislation being quashed”). 24.3.16 Quashing is not a ‘disciplinary’ action. R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 [2016] 1 WLR 3923 at §87 (Laws and Treacy LJJ, expressing “strong reservations about the proposition that the court should necessarily exercise its discretion to quash a decision as a form of disciplinary measure. … The court’s approach should not ordinarily be that of a disciplinarian, punishing for the sake of it”), §88 (“considerations of a purely disciplinary nature are insufficient to warrant the quashing of the decision in this case”).

24.4 The remedies in action. The judicial review case law provides a wealth of ready working examples of the ways in which the remedies operate in practice, in various contexts. 24.4.1 Quashing order in action. R (British Blind and Shutter Association) v Secretary of State for Housing Communities and Local Government [2019] EWHC 3162 (Admin) at §112 (regulation quashed, where unfairness in consultation as to scope of prohibition); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 (quashing regulations); R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 (quashing Crown Court refusal to extend time to challenge costs payable under third-party remediation order); R (Stody Estate Ltd) v Secretary of State for Environment, Food and Rural Affairs [2018] EWHC 378 (Admin) at §38 (quashing decision imposing penalty); R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §119 (Fees Order quashed); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309 (quashing refusal of student grants for error of law); Wheeler v Leicester City Council [1985] AC 1054 (quashing ban on rugby club training on council land); {2.6.1} (quash and remit); {2.6.6} (remittal and scope/guidance/directions as to reconsideration). 368

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24.4.2 Substitutionary remedy: Court’s power of retaking the decision. Senior Courts Act 1981 s.31(5)(b), (5A), (5B) (“(5) If, on an application for judicial review, the High Court quashes the decision to which the application relates, it may in addition – … (b) substitute its own decision for the decision in question. (5A) But the power conferred by subsection (5)(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 which the court or tribunal could have reached. (5B) Unless the High Court otherwise directs, a decision substituted by it under subsection (5)(b) has effect as if it were a decision of the relevant court or tribunal”); CPR 54.19(2)(b) (“(1) This rule applies where the court makes a quashing order in respect of the decision to which the claim relates. (2) The court may – … (b) in so far as any enactment permits, substitute its own decision for the decision to which the claim relates. (Section 31 of the Supreme Court Act 1981 enables the High Court, subject to certain conditions, to substitute its own decision for the decision in question.)”); {24.4.8}-{24.4.12} (mandatory order). 24.4.3 Substitutionary remedy: illustrations. R (Commissioner of Police for the Metropolis) v Police Medical Appeal Board [2020] EWHC 345 (Admin) at §72 (not satisfied that defendant a “tribunal”), §73 (“the court should be wary of exercising this power because of the danger that the court might substitute its own view of the merits”); R (Chief Constable of Northumbria) v Police Appeals Tribunal [2019] EWHC 3352 (Admin) at §69 (substituting dismissal), §56 (as the only reasonable decision on the facts); General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 at §37 (Lord Mance: “judicial review may, in appropriate circumstances, lead the court to a conclusion that there exists only one possible outcome”); R (Notting Hill Genesis) v Camberwell Green Magistrates Court [2019] EWHC 1423 (Admin) [2019] ACD 79 at §30 (declining to “retake the decision myself” where “I do not have the materials before me which would warrant me adopting any such course”); R (Chief Constable of Avon and Somerset) v Police Medical Appeal Board [2019] EWHC 557 (Admin) at §25 (not “one of those rare cases in which, given the findings of fact which were made by the Board, on an application of the appropriate legal test only one conclusion is possible”); Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1175 at §7(iv) (“The reviewing court … may substitute its own view for that of the relevant decision-maker but usually only if, once allowance has been made for the error, only one decision was open to the decision-maker”), §20 (substitutionary remedy inappropriate where “the new answer supplied … was not necessarily the only one open to the [defendant]”); cf R (Tarmac Aggregates Ltd) v Secretary of State for Environment, Food and Rural Affairs [2015] EWCA Civ 1149 [2016] PTSR 491 at §47 (CA quashing planning inspector’s decision, deciding “to replace it with a determination that the EA should issue … [a] permit”). 24.4.4 Substitutionary-type remedy: older cases. R (Y) v Aylesbury Crown Court [2012] EWHC 1140 (Admin) at §§20, 54 (DC granting judicial review on grounds of inadequate reasons, of a decision varying reporting restrictions, and quashing but not remitting, substituting its own decision because “without the error, there would have been only one decision” namely to refuse the variation); R (Rojas) v Snaresbrook Crown Court [2012] EWHC 3569 (Admin) at §34 (ordering that bail be granted on conditions, where withdrawal of bail was unreasonable); R (O’Connor) v Avon Coroner [2009] EWHC 854 (Admin) [2011] QB 106 at §32 (remitting, as Court unable to say only one decision could have been reached); R (Mowlem Plc) v HM Assistant Deputy Coroner for Avon [2005] EWHC 1359 (Admin) at §26 (substituting words for inapt coroner’s verdict); R (Thames Water Utilities Ltd) v Bromley Magistrates’ Court [2005] EWHC 1231 (Admin) at §5 (where district judge wrongly declining to determine point of law, Court able “to resolve the question of law” since “no useful purpose would seem to be served by remitting the matter”); R (SSHD) v Chief Asylum Support Adjudicator [2003] EWHC 269 (Admin) (Court directing dismissal of asylum support appeal by reference to CPR 54.19(2)(b)) (CA is [2003] EWCA Civ 1673); R (Cunningham) v Exeter Crown Court [2003] EWHC 184 (Admin) at §22 (where irrational costs refusal appropriate to “direct the Crown Court to award the claimant his costs”); R v Inner London Crown Court, ex p Provis [2000] COD 481 (court substituting order whereby 369

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licensing appeal allowed, because unfair to remit and allow police a second opportunity to resist); R (Longfield Care Homes Ltd) v HM Coroner for Blackburn [2004] EWHC 2467 (Admin) at §32 (coroner’s verdict “quashed and amended”); R (Governing Body of London Oratory School) v Schools Adjudicator [2005] EWHC 1842 (Admin) [2005] ELR 484 at §17 (remedy of quashing but not remitting to schools adjudicator not constituting a substitutionary decision under CPR 54.19(2)(b)); R (Allan) v South Tyneside Law Courts [2010] EWHC 107 (Admin) at §15 (where defendant’s costs order wrongly refused, Court taking the “unusual course” of proceeding “to exercise afresh the discretion which was open to the district judge”, with liberty to apply); cf Manchester City Council v Pinnock (No 2) [2011] UKSC 6 [2011] 2 AC 104 (SC having power to make substitutionary possession order). 24.4.5 Power to vary sentence. Senior Courts Act 1981 s.43 (“Power of High Court to vary sentence on application for quashing order. (1) Where a person who has been sentenced for an offence – (a) by a magistrates’ court; or (b) by the Crown Court after being convicted of the offence by a magistrates’ court and committed to the Crown Court for sentence; or (c) by the Crown Court on appeal against conviction or sentence, applies to the High Court in accordance with section 31 for a quashing order to remove the proceedings of the magistrates’ court or the Crown Court into the High Court, then, if the High Court determines that the magistrates’ court or the Crown Court had no power to pass the sentence, the High Court may, instead of quashing the conviction, amend it by substituting for the sentence passed any sentence which the magistrates’ court or, in a case within paragraph (b), the Crown Court had power to impose. (2) Any sentence passed by the High Court by virtue of this section in substitution for the sentence passed in the proceedings of the magistrates’ court or the Crown Court shall, unless the High Court otherwise directs, begin to run from the time when it would have begun to run if passed in those proceedings; but in computing the term of the sentence, any time during which the offender was released on bail in pursuance of section 37(1)(d) of the Criminal Justice Act 1948 shall be disregarded. (3) Subsections (1) and (2) shall, with the necessary modifications, apply in relation to any order of a magistrates’ court or the Crown Court which is made on, but does not form part of, the conviction of an offender as they apply in relation to a conviction and sentence”); R (Corner) v Southend Crown Court [2005] EWHC 2334 (Admin) (substituting 2 year driving ban for 4 year ban); R v Exeter Crown Court, ex p Chennery [1996] COD 207 (substituting 12 for 18 months sentence); R v Pateley Bridge Justices, ex p Percy [1994] COD 453 (substituting 1 day for 1 month imprisonment); R v Truro Crown Court, ex p Adair [1997] COD 296 (substituting lower fine); R v St Helen’s Justices, ex p Jones [1999] 2 All ER 73 (s.43(3) not apt to apply to an order subsequent to conviction, made for a new intervening cause; here, neglect or default in paying fine). 24.4.6 Partial quashing. {43.1.7} 24.4.7 Mandatory order: general. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 650B (Lord Scarman, describing mandamus (mandatory order) as “the most elusive of the prerogative writs and orders”); R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11 [2010] 2 AC 70 at §49 (mandatory order to require registration of a town or village green); {24.4.25} (avoiding remedy that would fetter the defendant). 24.4.8 Mandatory order: requiring performance/preventing breach of duty. R (AM) v Newham LBC [2020] EWHC 327 (Admin) [2020] PTSR 1077 at §121 (mandatory order to secure suitable accommodation within 12 weeks); R (W) v SSHD [2020] EWHC 1299 (Admin) at §76(b) (mandatory order to publish instruction to caseworkers within seven days); R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) [2019] 1 WLR 1686 (mandatory order for payment of pension arrears); R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28 [2015] PTSR 909 at §31 (mandatory order to require new air-quality plans to comply with EU law duty, to be made within a defined timetable specified in the order); Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286, 1296F-G (failure to act within reasonable time could be compelled by mandatory order); R (Khan) v London Borough of Newham [2001] EWHC Admin 589 (mandatory order to require discharge of housing duty, notwithstanding council’s lack of resources); Fleming 370

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v Lees [1991] COD 50 (preventing breach of duty); R v Newcastle Justices, ex p Skinner [1987] 1 WLR 312 (failure to conduct a means inquiry); R (AB and SB) v Nottingham City Council [2001] EWHC Admin 235 (2001) 4 CCLR 295 at §53 (mandatory order to require full assessment of needs, within the maximum period laid down in relevant guidance document). 24.4.9 Mandatory order: sole legally permissible result. R (TI) v Bromley Youth Court [2020] EWHC 1204 (Admin) [2020] 2 Cr App R 22 at §44 (mandatory order to appoint an intermediary, being “the only appropriate course in this case”); R (S (A Child) v NHS England [2016] EWHC 1395 (Admin) [2016] Med LR 329 at §36 (making mandatory order, not quashing and remitting, where: “I am satisfied … that a decision to refuse the treatment could not be supportable”); R (O) v Hammersmith and Fulham LBC [2011] EWCA Civ 925 [2012] 1 WLR 1057 at §44 (whether an outcome “the only result legally open”); R (TR) v Asylum and Immigration Tribunal [2010] EWHC 2055 (Admin) at §39 (ordering extension of time, to which reconsideration would inevitably lead); R (S) v SSHD [2007] EWCA Civ 546 at §46 (“there was only one way in which the Secretary of State could reasonably exercise his discretion”); R (Luminar Leisure Ltd) v Norwich Crown Court [2004] EWCA Civ 281 [2004] 1 WLR 2512 at §20 (whether the only manner in which a case could properly have been resolved); R v Ealing LBC, ex p Parkinson (1996) 8 Admin LR 281, 287F (describing the situation “where the public law court is able to conclude that only one result was legally open to the body in question”); cf R (AM (A Child)) v SSHD [2018] EWCA Civ 1815 [2019] 1 All ER 455 at §96 (mandatory order inappropriate where breach of duty to act fairly). 24.4.10 Mandatory order: defendant wrongly declining jurisdiction. Lewisham LBC v Lewisham Juvenile Court Justices [1980] AC 273 (mandatory order against justices for erroneously declining jurisdiction to hear the Council’s complaint); R v Statutory Committee of the Pharmaceutical Society of Great Britain, ex p Pharmaceutical Society of Great Britain [1981] 1 WLR 886 (mandatory order where committee erroneously concluded that no jurisdiction because of conditional discharge in criminal proceedings); R v Oxford Justices, ex p D [1987] QB 199 (mandatory order for magistrates’ clerk’s refusal to issue a summons for access, on the erroneous basis that magistrates lacking jurisdiction); R v Reading Crown Court, ex p Hutchinson [1988] QB 384 (mandatory order where wrongly declining to examine lawfulness of bylaws); cf R v Comptroller-General of Patents Designs & Trade Marks, ex p Gist-Brocades [1986] 1 WLR 51, 66F (preferring “a declaration or certiorari to quash as being erroneous in law his decision denying his own jurisdiction”); {47.1.11} (jurisdiction: wrongly declining to exercise a power). 24.4.11 Mandatory order: to effect claimant’s return to the UK. PN (Uganda) v SSHD [2019] EWCA Civ 1508 at §11 (on successful judicial review claim, SSHD directed to take steps to return claimant to the UK). 24.4.12 Mandatory order for release on bail. R (A) v SSHD [2008] EWHC 142 (Admin) at §39 (mandatory order for release, by grant of bail); R v Stoke-on-Trent Crown Court, ex p Marsden [1999] COD 114 (ordering release of claimant and directing attendance at Crown Court the following day for bail conditions to be set); In re Corey [2013] UKSC 76 [2014] AC 516 (judicial review court having no jurisdiction to order bail, not having found the detention unlawful, and where moreover it would run counter to the legislative scheme); {20.1.18} (bail as a mandatory interim remedy: judicial review of bail refusal). 24.4.13 Prohibiting order in action: illustrations. R (Brook) v Preston Crown Court [2018] EWHC 2024 (Admin [2018] ACD 95 at §74 (having quashed a search warrant and held the search to be unlawful, Court going on to hold that police not to be permitted to apply to retain the seized material); B v Chief Constable of Northern Ireland [2015] EWHC 3691 (Admin) [2016] ACD 30 at §68 (order prohibiting arrests); R (Watson) v Dartford Magistrates Court [2005] EWHC 905 (Admin) (prohibiting order to prevent prosecution from adducing certain witness evidence, where adjournment had been unlawfully granted); R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 (prohibiting order granted where unlawful decision to increase taxi licence numbers, in breach of undertaking to consult); R v Electricity Commissioners, ex p London Electricity 371

THE NATURE OF JUDICIAL REVIEW

Joint Committee Co [1924] 1 KB 171 (prohibiting order in respect of proposed scheme, being ultra vires); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 79H-80B (Lord Lowry, approving the use of prohibiting order against magistrates in R v Bow Street Magistrates, ex p Mackeson (1981) 75 Cr App R 24 and R v Telford Justices, ex p Badhan [1991] 2 QB 78); R v Dudley Justices, ex p Gillard [1986] AC 442, 448G (Lord Bridge, referring to prohibiting order as “the effective and sufficient remedy”); R v Horseferry Road Justices, ex p Independent Broadcasting Authority [1987] QB 54 (prohibiting order granted in context of criminal proceedings commenced in a magistrates’ court, since Broadcasting Act 1981 s.4(3) not creating a criminal offence); R v Faversham and Sittingbourne Justices, ex p Stickings [1996] COD 439 (prohibiting order to prevent fresh trial, where unlawful decision setting aside ruling as to admissibility of evidence); R (UNISON) v Secretary of State for Health [2010] EWHC 2655 (Admin) at §11 (Court would not make a prohibiting order which inhibited Secretary of State from introducing legislation). 24.4.14 Declaration. {24.2} 24.4.15 Injunction in action. {24.1.3} (statutory test for an injunction in judicial review); R v North Yorkshire County Council, ex p M [1989] QB 411 (parents obtaining injunction of local authority’s decision to foster their daughter without consulting a court-appointed guardian ad litem); cf Bradbury v Enfield LBC [1967] 1 WLR 1311 (injunction to prevent local authority from ceasing to maintain school, without going through statutory procedure); R v Environment Agency, ex p Dockgrange Ltd [1997] Env LR 575 (see transcript) (order to restrain any enforcement action inconsistent with the declaration of the Court); R (C) v Chief Constable of Greater Manchester [2011] EWCA Civ 175 [2011] 2 FLR 383 at §19 (wrong to order an injunction to prohibit future decision on a future application). As to interim injunctions: {P20} (interim relief). 24.4.16 Remedy/injunction for the benefit of a class/non-parties. R (NN) v SSHD [2019] EWHC 1003 (Admin) [2019] ACD 71 at §21a (“NGOs frequently seek relief including injunctive relief for the benefit of a set of unascertained (and sometimes unascertainable) individuals who can be identified solely on the basis that they have a characteristic or status which means the impugned action may be applied to them”, referring to Medical Justice [2010] EWHC 1425 (Admin) and R (Detention Action) v First-tier Tribunal [2015] EWCA Civ 840 [2015] 1 WLR 5341). 24.4.17 Prospective-only remedy/ruling: limiting retrospective effect.69 R (Brown) v Secretary of State for Justice [2017] UKSC 81 [2018] AC 215 at §35 (Lady Hale: “Decisions of … any court … generally operate retrospectively to alter the previous understanding of the law. It may be possible for the court to declare that a new understanding of the law will operate only prospectively. … But such a course would be wholly exceptional”); 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 (judgment on remedies) at §19 (declaration “that the Regulations are prospectively unlawful”); R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35 [2015] AC 49 at §156 (Lord Reed, leaving open “the possibility, if necessary to protect legal certainty, of … granting a remedy with only prospective effect”); Cadder v HM Advocate [2010] UKSC 43 [2010] 1 WLR 2601 at §58 (considering whether “the court has a general inherent power to limit the retrospective effect of its decisions”), §59 (precluded here by the statutory scheme and inappropriate to deny a remedy); Sabha v Attorney-General [2009] UKPC 17 at §42 (declaration not to be treated as retrospective so as to affect honours previously granted); R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19, 26H (“there may be situations in which it would be desirable, and in no way unjust, that the effect of judicial rulings should be prospective or limited to certain claimants”); R v Warwickshire County Council, ex p Collymore [1995] ELR 69The

equivalent paragraph in a previous edition was relied on in R (British Academy of Songwriters, Composers and Authors) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin) [2015] Bus LR 1435 (judgment on remedies) at §16 (Green J).

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217 (court ruling that council’s policy had been applied over-rigidly, but not retrospective); R v East Sussex County Council, ex p Ward (2000) 3 CCLR 132 at §37 (permission for judicial review granted on condition that no remedy would be granted in respect of an earlier period). 24.4.18 Suspension of quashing order. Ahmed v HM Treasury (No 2) [2010] UKSC 5 [2010] 2 AC 534 at 689 (refusing to suspend quashing of ultra vires Orders, which would give the impression of lawfulness and obfuscate the effect of the judgment); R (Devon County Council) v Secretary of State for Communities and Local Government (No 2) [2010] EWHC 1847 (Admin) (refusing to stay quashing order, to await election and potential legislative solution); R (Rockware Glass Ltd) v Chester City Council [2007] Env LR 32 (suspending quashing of permit for industrial plant, pending fresh and lawful decision, to avoid disproportionate effect of closing down or unlawful operation). 24.4.19 Remedy conditional on an undertaking by the claimant. B v Chief Constable of Northern Ireland [2015] EWHC 3691 (Admin) [2016] ACD 30 at §9 (“on the claimants each giving to the court the undertaking offered, the court will declare that the arrest of that claimant for the purpose of interview under caution would be unlawful”); R v Bow Street Magistrates’ Court, ex p Mitchell [2000] COD 282 (magistrates’ costs order quashed and remitted on condition of claimant giving an undertaking that full disclosure of his financial position would be given to the magistrates). 24.4.20 Remedy for lack/insufficiency of reasons. {64.5} 24.4.21 Remedy where defendant is functus officio. {47.1.15} (jurisdiction: public authority becoming functus officio). 24.4.22 Remedy and reinstating office-holders/employees. Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (HL declining to grant mandatory order, although “very tempted”); Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1584D-E (Lord Reid: wrong to grant remedy if “would involve the reinstatement of the appellant”); Vine v National Dock Labour Board [1957] AC 488 (declaration granted); R v Chief Constable of Devon and Cornwall, ex p Hay [1996] 2 All ER 711, 726e (not proper to “wind the film back” and put an officer back in service). 24.4.23 Remedy and setting aside a contract. R (Structadene Ltd) v Hackney LBC [2001] 2 All ER 225 (where decision to dispose of land unlawful, court quashing the decision and declaring that the contract invalid); R (the Transport and General Workers Union) v Walsall Metropolitan Borough Council [2001] EWHC Admin 452 [2002] ELR 329 (on judicial review, Court quashing a decision to enter into a contract, the decision being procedurally flawed since parent governors should not have been excluded; declaration granted that contract void and of no effect); {34.5.3}-{34.5.4} (reviewability and contractual subject-matter). 24.4.24 Remedy and severability. {43.1} (severability). 24.4.25 Avoiding remedy which would fetter the defendant. {P15} (the forbidden method); Fletcher v Governor of Whatton Prison [2015] EWHC 3451 (Admin) [2016] ACD 39 at §14 (Dingemans J, discussing appropriateness of remedy where ongoing unlawfulness: “it is for the Secretary of State, who is subject to the public law duty, to determine how that public law duty is to be discharged. It is not the role of the Courts to manage how the duty is to be discharged. This is because the way in which the public law duty is to be discharged raises issues of policy for the Secretary of State, and because the Courts do not have the expertise to manage the discharge of the public law duty”); R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) at §187 (avoiding, in relation to the consequences of finding a breach of planning control, any remedy which would “substitute the court for the planning authorities”); Rajkumar v Lalla 29 November 2001 unreported (PC) at §23 (“While 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, that is not the position in the present case”); R (Hughes) v Commissioner of Local Administration [2001] EWHC Admin 349 (inappropriate to make order that on 373

THE NATURE OF JUDICIAL REVIEW

reconsideration ombudsman bound to find injustice, as it would fetter her discretion, although Court making clear that it expected such a finding and that there would inevitably be a further reference to the Courts if a contrary conclusion was reached); R (D) v SSHD [2003] EWHC 155 (Admin) [2003] 1 FLR 979 at §30 (“I am not in a position to conclude that such reconsideration could have only one possible outcome. It is for the Prison Service to reach a lawful decision following a procedurally and substantively correct reconsideration”); R (Hirst) v SSHD [2002] EWHC 602 (Admin) [2002] 1 WLR 2929 at §86 (declaration granted that policy unlawful, but quashing order inappropriate because court “would in effect be dictating the policy”); R v SSHD, ex p Chugtai [1995] Imm AR 559, 569 (although appearing inevitable that IAT would need to grant permission to appeal, not “appropriate in these cases to make an order of mandamus … the proper course is to quash the decision and for them to reconsider in the light of this judgment”); R v SSHD, ex p Mersin [2000] INLR 511, 513H-514B (court “can identify breaches of the law by the Secretary of State” but it would be “trespassing on the [defendant]’s own discretion if I were to formulate an injunction or [mandatory order] directing him how to deal with these cases in the future”), applied in R (Arbab) v SSHD [2002] EWHC 1249 (Admin) [2002] Imm AR 536 (not appropriate for Court to rule on proper management of government department); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309, 350F-351A (certiorari and mandamus granted, but declaration refused, to avoid “any semblance of the courts assuming the function assigned by Parliament to the local education authority”); R (T) v Secretary of State for Health [2002] EWHC 1887 (Admin) (2003) 6 CCLR 277 at §62 (declaration would have involved “trespassing in matters over which Parliament enjoys exclusive jurisdiction, namely making legislation”). 24.4.26 No order/judgment speaking for itself/declaratory judgment. R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 at §12 (“In cases affecting the Secretary of State, the court frequently adopts the view that the Secretary of State will be guided by its opinion without the necessity of a formal order of mandamus or declaration”); R (DS) v SSHD [2019] EWHC 3046 (Admin) [2020] Imm AR 409 §85 (“this judgment is sufficient remedy for the illegality”); R (O) v Parkview Academy [2007] EWCA 592 [2007] ELR 454 at §46 (acceptance of undertakings a sensible exercise of discretion); R (Purja) v Ministry of Defence [2003] EWCA Civ 1345 [2004] 1 WLR 289 at §73 (“Very often the court allows its judgment to speak for itself rather than grant express declaratory relief”); R (Barry) v Liverpool City Council [2001] EWCA Civ 384 [2001] LGR 361 at §27 (“When the [defendant] is a responsible public body it is often considered unnecessary to make a formal declaration”); R (Wandsworth LBC) v Secretary of State for Transport [2005] EWHC 20 (Admin) at §313 (“a declaration in the terms of this judgment should suffice”); {23.2.12} (appeal against adverse reasoning/inadequate remedy). 24.4.27 Order including liberty to apply. R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481 (declaration requiring a legislative amendment, to secure EU-law compatibility, within a specified timeframe) at §100 (“liberty to apply to vary the order or the terms of the declaration we grant if subsequent events (which must be supported by evidence) require any change to the timetable”); R (ClientEarth) v Secretary of State for Environment, Food and Rural Affairs (No 3) [2018] EWHC 398 (Admin) (court ordering publication of supplementary air quality plan by specified date), §14 (granting liberty to apply “to provide a quick, efficient and low cost means of enabling the current claimant … to bring the matter back before the Court”); R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28 [2015] PTSR 909 at §§32-35 (SC making mandatory order for air-quality plan within a defined timetable, but with provision for “liberty to apply to the Administrative Court for variation of the timetable, or for determination of any other legal issues which may arise”); Fletcher v Governor of Whatton Prison [2015] EWHC 3451 (Admin) [2016] ACD 39 at §16 (permission to apply for further relief if access to in-prison programme refused); Wheeler v Leicester City Council [1985] AC 1054, 1079F (liberty to apply in case injunction becoming necessary); R v West Yorkshire Coroner, ex p Smith [1983] QB 335, 359G (liberty to apply for mandatory order); R v Rochdale Metropolitan Borough Council, ex p Schemet [1994] ELR 89, 109G-110D (liberty to re-apply for mandatory order, “in the unlikely event of the local education authority … seeking to continue to apply a policy which the court has said is unlawful”); R v Human 374

P24 REMEDIES

Fertilisation and Embryology Authority, ex p Blood [1999] Fam 151 (no formal order except liberty to apply, to CA); R v Director General of Electricity Supply, ex p Scottish Power Plc 3 February 1997 unreported (liberty to apply to CA for further directions); R v Wandsworth LBC, ex p M [1998] ELR 424, 429A-B (declaration and liberty to apply); R (Arca) v Cumbria County Council [2003] EWHC 232 (Admin) (discharging earlier order for “liberty to apply”, and dismissing attempt to rely on it to show continuing unlawfulness); R (Kind) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWHC 1324 (Admin) [2006] QB 113 (liberty to apply granted); Surratt v Attorney-General [2008] UKPC 38 (application made under liberty to apply granted previously, at [2007] UKPC 55 [2008] 1 AC 655). 24.4.28 Adjourning question of remedy/further remedy. R v St Albans Magistrates’ Court, ex p Read (1994) 6 Admin LR 201, 204B-E (mandatory order granted; adjourning application for a quashing order, to be pursued if no urgent hearing); R v Social Fund Inspector, ex p Ali (1994) 6 Admin LR 205, 224A (application adjourned, so that “if the promised review does not take place … the court can hear argument if necessary on the natural justice point”); R v London Borough of Newham, ex p Watkins (1994) 26 HLR 434, 441 (judicial review adjourned, on council’s undertaking to recommend re-hearing by appeals panel, and subsequently revived on panel’s refusal to conduct such a rehearing); R (Lloyd) v Dagenham LBC [2001] EWCA Civ 533 (2001) 4 CCLR 196 at §§3-5 (judicial review adjourned on basis of undertakings given to the Court, and then restored when dispute arising as to whether those undertakings had been breached). 24.4.29 Application/issue arising out of order made. R v Ministry of Agriculture Fisheries and Food, ex p Anastasiou (Pissouri) Ltd [1999] EuLR 168 (application for an injunction to restrain modified conduct adopted in the light of declaratory remedy granted at hearing of the judicial review of existing judicial review proceedings; application regarded as “arising from” the declaratory remedy); R v Secretary of State for Trade, ex p Vardy [1993] ICR 720, 762E-F (referring to a matter “which any court which had to consider the matter in future might well conclude was within the declaration [granted]”); R v British Coal Corporation, ex p Price (No 2) [1993] COD 323 (Court unable to add to declaration made, being now functus; and in any event premature until clear what defendant had decided to do; but granting liberty to apply); R v British Coal Corporation, ex p Price [1993] COD 482 (application for declaration of noncompliance with the earlier order, rejected on the facts). 24.4.30 New/further/ongoing issue: fresh proceedings. R (TW) v Hillingdon LBC (No 2) [2019] EWHC 157 (Admin) (fresh judicial review proceedings succeeding in demonstrating that defendant had still failed to comply with impact assessment duty, court ordering continuation of declarations given in previous proceedings); Silver Mountain Investments Ltd v Attorney-General of Hong Kong [1994] 1 WLR 925, 937C (refusing to allow claimant to amend pleadings and adduce fresh evidence to support new ground: “these matters, if they have merit, could more appropriately be dealt with by a fresh application for [permission] to apply for judicial review”); R v Oldham Metropolitan Borough Council, ex p Garlick [1993] AC 509, 521A-B (“As the local housing authority is in any event going to review its decision there is no purpose in entering upon a Wednesbury review at this stage”); {2.1.34} (whether a special approach to issue estoppel/res judicata/abuse of process). 24.4.31 Directed notification of judgment. R v SSHD, ex p Sanusi [1999] INLR 198 (directing judgment brought to personal attention of Minister); R v Feltham Justices, ex p Haid [1998] COD 440 (directing judgment be sent to Criminal Policy Division of Lord Chancellor’s Department, and to Judicial Studies Board, to ensure magistrates properly advised and trained); R v SSHD, ex p Bulger [2001] EWHC Admin 119 at §60 (directing transcript to go to DPP to consider forgery of documents); {3.1.20} (procedural rigour (immigration cases): the Hamid jurisdiction (referral to the SRA)).

375

P25 Monetary remedies. A judicial review claim can incorporate a claim for damages: including actionable compensation rights, HRA ‘just satisfaction’, restitution or sums due. 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’

25.1 Availability of damages, restitution or sum due (debt). A claim for judicial review can include damages, restitution and sum due (debt) in the remedies sought. Judicial review claims including HRA-based challenges can also include a claim for HRA ‘just satisfaction’. The inclusion of monetary claims avoids parallel or sequential sets of proceedings. The monetary remedy or its quantification may be left until substantive issues of lawfulness have been determined, and may be adjourned or transferred for separate hearing, if not agreed. Judicial review may also achieve a monetary outcome in other ways (eg overturning a refusal of payment under a compensation scheme). 25.1.1 Statutory test for grant of damages, restitution, sum due in judicial review. Senior Courts Act 1981 s.31(4) (“On an application for judicial review the High Court 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 court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application”); R (Fayad) v SSHD [2018] EWCA Civ 54 at §47 (Singh LJ: “these provisions govern … the procedure for making a claim for damages, not substantive law … In particular they do not create a cause of action for damages where none would otherwise exist”). 25.1.2 Monetary remedy: HL:NSD test. Senior Courts Act 1981 s.31(2A) (“The High Court … (b) may not make an award under subsection (4) …, 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”); {4.1} (highly likely: not substantially different (HL:NSD)). 25.1.3 Monetary remedy must not be the sole remedy sought. CPR 54.3(2) (“A claim for judicial review may include a claim for damages, restitution or the recovery of a sum due but may not seek such a remedy alone. (Section 31(4) of the Supreme Court Act sets out the circumstances in which the court may award damages, restitution or the recovery of a sum due on a claim for judicial review)”); R (ZA (Pakistan)) v SSHD [2020] EWCA Civ 146 at §69 (“Claims for damages alone may not be brought in the Administrative Court”); D v Home Office [2005] EWCA Civ 38 [2006] 1 WLR 1003 at §58 (“no jurisdiction to entertain a claim for damages alone”); R (Kurdistan Workers Party) v SSHD [2002] EWHC 644 (Admin) at §87 (damages claim “not in itself a good reason for permitting judicial review”). 25.1.4 Monetary remedy accompanying claim for a declaration. Husson v SSHD [2020] EWCA Civ 329 at §28 (pursuit of a declaration sufficient for UT to have jurisdiction to order damages in judicial review, under s.16(6) Tribunals Courts and Enforcement Act 2007); R (ZA (Pakistan)) v SSHD [2020] EWCA Civ 146 at §71 (“in reality the claim for declarations added nothing to the claim for damages”); R (N) v SSHD [2003] EWHC 207 (Admin) [2003] HRLR 583 (declaration and HRA damages entertained) (CA is Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 [2004] QB 1124); R v Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58, 156H-157B (CA declaration that segregation unlawful the backcloth to HL dealing with damages); R v Dorset Police Authority, ex p Vaughan [1995] COD 153 (declaration would have been appropriate to form the basis for a civil claim to enforce pension

P25 MONETARY REMEDIES

rights); R v Chelmsford Crown Court, ex p Chief Constable of the Essex Police [1994] 1 WLR 359, 368G-369F. 25.1.5 Claim for HRA just satisfaction. {9.5} (HRA just satisfaction); CPR 16PD §15.1(1)(2) (“A party who seeks to rely on any provision of or right arising under the Human Rights Act 1998 or seeks a remedy available under that Act – (1) must state that fact in his statement of case; and (2) must in his statement of case – (a) give precise details of the Convention right which it is alleged has been infringed and details of the alleged infringement; (b) specify the relief sought …; (c) state if the relief sought includes – … (ii) damages in respect of a judicial act to which section 9(3) of that Act applies”). 25.1.6 Interest. Senior Courts Act 1981 s.35A (power of HC to award interest on damages or debt); R (Elite Mobile Plc) v Customs and Excise Commissioners [2004] EWHC 2923 (Admin) (debt claim for statutory VAT repayment in judicial review claim, giving rise to interest under s.35A Senior Courts Act 1981); R v Ministry of Agriculture Fisheries and Food, ex p Lower Burytown Farms Ltd [1999] EuLR 128 (declaration granted on judicial review, of claimant’s entitlement to interest under s.35A on statutory debt payable pursuant to an EU Directive). 25.1.7 Procedural rigour: properly pleading money claims. R (Fayad) v SSHD [2018] EWCA Civ 54 at §48 (Singh LJ: “In order to know whether there is a proper cause of action for damages in a claim for judicial review one still has to go to some other source of substantive law. It may be, for example, that there is a cause of action in negligence; trespass to goods or the person; or for breach of statutory duty. However, the fact that such a cause of action can in principle arise (as a matter of procedure) in a claim for judicial review should not mean that the usual principles for making such a claim do not apply. The claim should be properly pleaded and particularised”), §56 (not “thrown in at the end of a claim form … as an afterthought”); {3.1.8} (procedural rigour: proper pleading of damages claim); {19.2.11} (procedural rigour: HRA damages claims). 25.1.8 Damages in judicial review claims: the 1977 breakthrough. R (Fayad) v SSHD [2018] EWCA Civ 54 at §45 (Singh LJ: “It was in order to give the court sufficient flexibility that, when RSC Order 53 was amended in the late 1970s and primary legislation was introduced in 1981 to govern what became ‘an application for judicial review’, it was made clear that a claim for damages could be included in judicial review proceedings”); O’Reilly v Mackman [1983] 2 AC 237, 283A-C (Lord Diplock: “the new Order 53 [1977] permits the applicant for judicial review to include … a claim for damages and empowers the court to award damages on the hearing of the application if satisfied that such damages could have been awarded to him in an action begun by him by writ at the time of making the application”, contrasting the previous “handicap … that a claim for damages for breach of a right in private law of the applicant resulting from an invalid decision of a public authority could not be made in an application under Order 53. Damages could only be claimed in a separate action begun by writ”); {2.1.14} (the 1977 procedural reforms). 25.1.9 Claim for restitution in judicial review. R (Kemp) v Denbighshire Local Health Board [2006] EWHC 181 (Admin) [2007] 1 WLR 639 (judicial review claim seeking healthcare funding as restitution, constituting recovery of a “debt”); Waikato Regional Airport Ltd v Attorney General [2003] UKPC 50 (restitution granted in New Zealand judicial review proceedings, where airport levy unfairly imposed); {2.6.17} (judicial review as a springboard: restitution claims). 25.1.10 Claim for sum due (debt) in judicial review. R (CP) v North East Lincolnshire Council [2019] EWCA Civ 1614 [2020] PTSR 664 at §75 (council in breach of duty to include a cost within a personal budget), §83 (“the Council had acted unlawfully and, accordingly, was liable to compensate [the claimant] in respect of any monetary shortfall in accordance with normal public law principles of legal accountability of public bodies”), §89 (“an orthodox public law right to be paid monies due to her under the Care Act 2014 and which

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the Council has unlawfully failed or refused to pay”); R (Elite Mobile Plc) v Customs and Excise Commissioners [2004] EWHC 2923 (Admin) (debt claim for statutory VAT repayment in judicial review claim); R (Kemp) v Denbighshire Local Health Board [2006] EWHC 181 (Admin) [2007] 1 WLR 639 (judicial review claim seeking healthcare funding as restitution constituting recovery of a “debt”); cf Steed v SSHD [2000] 1 WLR 1169 (statutory right to compensation). 25.1.11 Judicial review and compensation schemes. JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 (criminal injuries compensation scheme violating Art 14); R (D2M Solutions Ltd) v Secretary of State for Communities and Local Government [2017] EWHC 3409 (Admin) [2018] PTSR 1125 at §35 (judicial review and Planning Inspectorate’s ex gratia compensation scheme to compensate for errors); R (Nealon) v Secretary of State for Justice [2016] EWCA Civ 335 [2017] QB 571 (judicial review of decision under statutory scheme for compensating victims of miscarriages of justice); R (Mullen) v SSHD [2004] UKHL 18 [2005] 1 AC 1 (judicial review of refusal to pay statutory and ex gratia compensation following quashing of criminal conviction); R v Investors Compensation Scheme Ltd, ex p Bowden [1996] 1 AC 261 (judicial review and Investors Compensation Scheme); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513 (failure to implement statutory scheme); {25.2.16} (statutory compensation). 25.1.12 Judicial review of non-payment/failure to pay.70 R v Liverpool City Corporation, ex p Ferguson & Ferguson [1985] IRLR 501 (judicial review for a declaration of entitlement to be paid); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] STC 1500 (declaration of entitlement to be paid forthwith); R v Tower Hamlets LBC, ex p Chetnik Developments Ltd [1988] AC 858 (judicial review of the failure to make restitution); R (Wright) v SSHD [2006] EWCA Civ 67 [2006] HRLR 727 (refusal of compensation not capable of creating pre-HRA entitlement to Art 5 damages); R v Coventry City Council, ex p Coventry Heads of Independent Care Establishments (1998) 1 CCLR 379, 386E-387H (whether council obliged to increase payments for residential home places in line with DSS rates essentially a contractual dispute and so unsuitable for judicial review); R v Inland Revenue Commissioners, ex p Matrix-Securities Ltd [1994] 1 WLR 334, 346H-347A (had claimant spent money promoting scheme in reliance on Revenue clearance, “fairness demands that [it] should be reimbursed for this out of pocket expense and it could be regarded as an abuse of power for the revenue to refuse to do so”). 25.1.13 Deferring damages for separate hearing. Administrative Court: Judicial Review Guide (2020 edition) at §11.93 (“Where the assessment and award of damages is likely to be a lengthy procedure the general practice of the Administrative Court is to determine the judicial review claim, award the other remedy sought (if appropriate), and then transfer the claim to either the County Court or appropriate division of the High Court to determine the question of damages. It is the duty of all parties to address their minds to the possibility of such transfer as soon as it becomes apparent that issues other than damages have been resolved; for example, in unlawful detention claims where the claimant is released from detention during the proceedings but continues the claim in order to seek damages”); R (Kurdistan Workers Party) v SSHD [2002] EWHC 644 (Admin) at §87 (Richards J: “In practice, where there is a claim for damages as part of an otherwise appropriate claim for judicial review, the claim for damages would normally be left over to be dealt with as a discrete issue, if still relevant, after the main issues of public law had been determined. Even if still dealt with under CPR Part 54, rather than transferred out of the Administrative Court, it would still generally be subject to directions bringing it broadly into line with a damages claim commenced in the normal way”); R (Green) v Commissioner of Police of the Metropolis [2018] EWHC 3657 (Admin) at §32 (directions as to written submissions on HRA just satisfaction). 70The

equivalent paragraph in a previous edition was relied on in Touchwood Services Ltd v HMRC [2007] EWHC 105 (Ch) at §12 (Lindsay J).

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25.1.14 Procedural rigour: transfer out of damages. Administrative Court: Judicial Review Guide (2020 edition) at §11.93 (“Where the assessment and award of damages is likely to be a lengthy procedure the general practice of the Administrative Court is to determine the judicial review claim, award the other remedy sought (if appropriate), and then transfer the claim to either the County Court or appropriate division of the High Court to determine the question of damages. It is the duty of all parties to address their minds to the possibility of such transfer as soon as it becomes apparent that issues other than damages have been resolved; for example, in unlawful detention claims where the claimant is released from detention during the proceedings but continues the claim in order to seek damages”), referring to R (ZA (Pakistan)) v SSHD [2020] EWCA Civ 146 at §§72-74 (“The overriding objective requires that cases are allotted an appropriate share of the court’s resources, see CPR Part 1.1(2)(e). Parties are required to help the court to further the overriding objective, see CPR Part 1.3. Therefore, once the appellant had been released from detention both parties should have addressed their minds to the issue of whether the claim should have been transferred either to the Queen’s Bench Division or the County Court. There would also have been many advantages in such a transfer. … So far as the Appellant is concerned there would have been no need to obtain permission to bring the claim. … There would have been a process for calling witnesses and for cross examination. This would have meant that the Appellant could give oral evidence in support of his case. … From the point of view of the Respondent there would have been statements of case and proper case management of the claim, which would have given clarity to the case being made. There would have been formal disclosure of documents. … A transfer to the Queen’s Bench Division or County Court would also have made matters easier for the trial judge who would have had the benefit of assessing what had happened after hearing live evidence from witnesses. … It is hoped that in the future all parties should give timely consideration to the issue of transfer from the Administrative Court when, as often happens in these cases, issues of continuing detention have been resolved”); {21.5.30} (direction for transfer out of the Administrative Court). 25.1.15 Procedural flexibility: allowing damages claim to continue. R (Linse) v Chief Constable of North Wales [2020] EWHC 1288 (Admin) [2020] 1 WLR 3540 at §§38-42 (having held the retention of the vehicle unlawful, court awarding claimant damages, to be assessed, for wrongful disposal of vehicle), §39 (“to require separate county court proceedings … will serve only to increase costs and add delay. Having regard to the overriding objective … damages should be assessed in the present claim”); R (McDonagh) v Enfield LBC [2018] EWHC 1287 (Admin) [2018] HLR 43 at §8 (other remedies withdrawn so “the damages claim now stands alone … having regard to the overriding objective I am satisfied that it is appropriate for me, sitting in the Administrative Court, to hear and determine the claim for damages without any continuing claim for other relief”), referring to Morris v Newham LBC [2002] EWHC 1262 (Admin).

25.2 Recognised species of monetary claim. Monetary claims where public bodies have acted unlawfully succeed in judicial review only if they fit within established categories of cause of action. These include claims in negligence (actionable duty of care), actionable breach of statutory duty, misfeasance in public office, other tort claims, breach of contract, and just satisfaction under HRA s.7. 25.2.1 Damages under EU law. {8.1.15} 25.2.2 HRA ‘just satisfaction’. {9.5} 25.2.3 Damages for breach of contract. R (Supportways Community Services Ltd) v Hampshire County Council (No 2) [2006] EWCA Civ 1170 (2006) 9 CCLR 498 (damages awarded as to breach of contractual duty to conduct services review); Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (1999) 67 Con LR 1 (liability to tenderer for breach of implied contract); {25.3.3} (damages: the logic of public law standards applicable via contract).

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25.2.4 Tort claims: general considerations. Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 [2018] AC 736 at §32 (“At common law, public authorities are generally subject to the same liabilities in tort as private individuals and bodies”); Armes v Nottinghamshire County Council [2017] UKSC 60 [2018] AC 355 (local authority vicariously liable for torts committed by foster parents); Cox v Ministry of Justice [2016] UKSC 10 [2016] AC 660 (Ministry of Justice vicariously liable for tort committed by prisoner working in prison kitchen). 25.2.5 Aggravated and exemplary damages. Holownia v SSHD [2019] EWHC 794 (Admin) [2019] ACD 59 at §48 (approach to aggravated damages), §53 (approach to exemplary damages); R (KG) v SSHD [2018] EWHC 3665 (Admin) at §69 (awarding aggravated damages in unlawful immigration detention case); Wamala v Tascor Services Ltd [2017] EWHC 1461 (QB) [2017] 4 WLR 155 at §§548-557 (awarding aggravated and exemplary damages in immigration removal case); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 (declining to order exemplary and vindicatory damages in the context of unlawful immigration detention). 25.2.6 Misfeasance in public office. Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (1999) 67 Con LR 1 (misfeasance where operated a “buy British” policy in a tendering context, knowing or reckless as to its unlawfulness, and had falsified the reasons for the decision); Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29 [2002] 2 AC 122 at §§3, 30 (police officer’s forgery of a statement constituting misfeasance), §3 (aggravated damages available); Three Rivers District Council v Bank of England [2003] 2 AC 1, 191B-196E (need for: (1) a public officer; (2) exercising power as a public officer; (3) targeted malice (conduct specifically intended to injure a person or persons) or action with knowledge or reckless indifference (ie subjective recklessness – not caring) to the illegality of the act and the probability of causing injury to the claimant (or his class); (4) no separate requirement of proximity; (5) causation necessary; (6) losses only recoverable if actually foreseen as probable); R Cruickshank Ltd v Chief Constable of Kent County Constabulary [2002] EWCA Civ 1840 at §§28-29 (summarising the effect of Three Rivers); Society of Lloyd’s v Henderson [2007] EWCA Civ 930 [2008] 1 WLR 2255 (Lloyd’s not a “public officer” as required for misfeasance); Southwark LBC v Dennett [2007] EWCA Civ 1091 [2008] LGR 94 (need for subjective recklessness); Akenzua v SSHD [2002] EWCA Civ 1470 [2003] 1 WLR 741 (misfeasance applicable to personal death or personal injury; no need to be “the predictable victim”); Watkins v SSHD [2006] UKHL 17 [2006] 2 AC 395 (need for proof of special damage; exemplary damages only if special damage); Karagozlu v Metropolitan Police Commissioner [2006] EWCA Civ 1691 [2007] 1 WLR 1881 (transfer to closed conditions sufficiently special damage); Racz v Home Office [1994] 2 AC 45 (possibility of Home Office vicarious liability for any misfeasance by prison officers); Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 (considering extent of any immunity from liability for misfeasance, in the context of criminal investigations); O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 [2005] 2 AC 534 (admissibility of similar fact evidence in claim for misfeasance); Muuse v SSHD [2010] EWCA Civ 453 at §61 (misfeasance ruling flawed because no finding as to reckless indifference). 25.2.7 False imprisonment. R (Jollah) v SSHD [2020] UKSC 4 [2020] 2 WLR 418 (damages for false imprisonment; here, where curfew constituted a deprivation of liberty); Majewski v SSHD [2019] EWHC 473 (Admin) [2019] ACD 73 (Swift J, assessing quantum of damages for unlawful immigration detention); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 (false imprisonment in immigration detention); R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 (common law principles applicable to immigration detention). 25.2.8 Actionable breach of statutory duty: general. M v Home Office [1994] 1 AC 377, 412H-413A (“no reason in principle why, if a statute places a duty on a specified minister or other official which creates a cause of action, an action cannot be brought for breach of statutory duty claiming damages or for an injunction”).

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25.2.9 Actionable breach of statutory duty: rules and regulations. Calveley v Chief Constable of Merseyside [1989] AC 1228, 1237C-H (whether breach of Regulations sounded in damages); P v Liverpool Daily Post & Echo Newspapers Plc [1991] 2 AC 370, 419G-420D (whether Rules conferring cause of action in damages); R v Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58 (whether breach of Prison Rules sounded in damages); Smith v Northamptonshire County Council [2009] UKHL 27 [2009] ICR 734 (scope of liability as employer for breach of regulations). 25.2.10 Actionable statutory duty: illustrations. Kirvek Management and Consulting Services Ltd v Attorney General of Trinidad and Tobago [2002] UKPC 43 [2002] 1 WLR 2792 at §§16-19 (actionable breach of statutory duty under Trinidad and Tobago legislation, for failure by court registry to place money into an interest-bearing account); Mitchell v Department of Transport [2006] EWCA Civ 1089 [2006] 1 WLR 3356 (actionable statutory duty to maintain the highway). 25.2.11 No actionable statutory duty: illustrations. Murphy v Electoral Commission [2019] EWHC 2762 (QB) [2020] 1 WLR 480 at §47 (statutory duty to return documents not actionable); O’Rourke v Camden LBC [1998] AC 188 (homelessness duties under the Housing Act 1985 not actionable); Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 [2003] 1 WLR 1763 (statutory duty to give reasons for deferring access to lawyer not actionable in damages, at least absent loss or injury); Phelps v Hillingdon LBC [2001] 2 AC 619, 652F (local authority education duties). 25.2.12 Negligence: general. Poole Borough Council v GN [2019] UKSC 25 [2019] 2 WLR 1478 at §65 (Lord Reed: “public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived”); Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 [2019] AC 831 at §15 (first ask whether within an “established categories of specific situations where a duty of care is recognised” and, if not, ask “whether it would be fair, just and reasonable to impose such a duty”); James-Bowen v Commissioner of Police for the Metropolis [2018] UKSC 40 [2018] 1 WLR 4021 at §23 (approach to extending a duty of care to a new situation); Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 [2018] AC 736 at §§31-42 (summarising the principles applicable to liability of public authorities in negligence); Husson v SSHD [2020] EWCA Civ 329 at §§42-50 (discussing the applicable principles including “voluntary assumption of responsibility”); Razumas v Ministry of Justice [2018] EWHC 215 (QB) (extent of actionable duty of care owed by MOJ to serving prisoners). 25.2.13 Negligence: actionable duty of care (illustrations). Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 [2019] AC 831 (actionable duty of care owed by NHS Trust); Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 [2018] AC 736 (actionable duty of care owed by police carrying out arrest); Woodland v Swimming Teachers Association [2013] UKSC 66 [2014] AC 537 (local authority owing a non-delegable duty of care to ensure safety at school swimming lessons); Attorney-General of the British Virgin Islands v Hartwell [2004] UKPC 12 [2004] 1 WLR 1273 (actionable duty of care breached in entrusting an unsuitable officer with firearms). 25.2.14 Negligence: no actionable duty of care (illustrations). Poole Borough Council v GN [2019] UKSC 25 [2019] 2 WLR 1478 (council owing no actionable duty of care to protect children placed in care from harm from neighbours); Seddon v Driver and Vehicle Licensing Agency [2019] EWCA Civ 14 [2019] 1 WLR 4593 (DVLA owing no actionable duty of care to purchaser of registered vehicle); Armes v Nottinghamshire County Council [2017] UKSC 60 [2018] AC 355 (local authority having no actionable non-delegable duty to ensure care in the upbringing of children in their care); Michael v Chief Constable of South Wales Police [2015] UKSC 2 [2015] AC 1732 (police owing no actionable duty of care in delayed response to 999 call). 381

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25.2.15 Other species of tort liability: illustrations. Gulf Insurance Ltd v Central Bank of Trinidad and Tobago [2005] UKPC 10 (damages for tort of conversion awarded in judicial review proceedings); R (Atapattu) v SSHD [2011] EWHC 1388 (Admin) (liability for conversion for wrongful retention of a Sri Lankan passport); Checkprice (UK) Ltd v Her Majesty’s Commissioners for Revenue & Customs [2010] EWHC 682 (Admin) [2010] STC 1153 (damages for conversion available in judicial review); Ashley v Chief Constable of Sussex Police [2008] UKHL 25 [2008] 1 AC 962 (assault and battery); Slough Estates Plc v Welwyn Hatfield District Council [1996] 2 PLR 50 (deceit); Gregory v Portsmouth City Council [2000] 1 AC 419 (malicious prosecution); Tomlinson v Congleton Borough Council [2003] UKHL 47 [2004] 1 AC 46 (occupiers liability); In re Organ Retention Group Litigation [2004] EWHC 644 (QB) [2005] QB 506 (wrongful interference); Clift v Slough Borough Council [2010] EWCA Civ 1171 [2011] 1 WLR 1774 (defamation); Feakins v DEFRA [2005] EWCA Civ 1535 [2006] Env LR 1099 (trespass); Keegan v Chief Constable of Merseyside [2003] EWCA Civ 936 (malicious procurement of warrant); Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 (conspiracy to injure); R Cruickshank Ltd v Chief Constable of Kent County Constabulary [2002] EWCA Civ 1840 (interference with contractual relations capable of lying against public officials); Wainwright v Home Office [2003] UKHL 53 [2004] 2 AC 406 (intentional infliction of harm); Dennis v Ministry of Defence [2003] EWHC 793 (QB) [2003] Env LR 741 (nuisance); Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61 [2004] 2 AC 1 (rule in Rylands v Fletcher); Chagos Islanders v Attorney General [2004] EWCA Civ 997 at §§20-26 (Sedley LJ, explaining that common law tort claims are not available in English law against “the State” or “the Crown” as such, but only against limbs of the state having “corporate legal personality” or for personal responsibility of individuals or Crown vicarious liability for individuals’ conduct; “the state is not a potential tortfeasor”). 25.2.16 Statutory compensation. Huddlestone v Bassetlaw District Council [2019] EWCA Civ 21 [2019] PTSR 1129 (statutory compensation for quashed planning interventions); JS Bloor (Wilmslow) v Homes and Communities Agency [2017] UKSC 12 [2018] 1 All ER 817 (statutory compensation for compulsory purchase); Mitsui Sumitomo Insurance Co (Europe) Ltd v Mayor’s Office for Policing and Crime [2016] UKSC 18 [2016] AC 1488 (statutory compensation from police fund in respect of riot); R (O’Brien) v Independent Assessor [2007] UKHL 10 [2007] 2 AC 312 (statutory compensation for miscarriage of justice detention); {25.1.11} (judicial review and compensation schemes).

25.3 Public law reparation: ‘no damages for maladministration’. The fact that a defendant public authority acted unlawfully in a public law sense – so that a ground for judicial review is established – does not of itself give rise to the claimant being entitled to, or the Court being empowered to grant, a monetary claim. Some established claims, like misfeasance in public office and actionable breach of statutory duty, have a ‘public law’ nature. HRA ‘just satisfaction’ is by its nature a claim against a public authority. Ironically, a body which successfully argues that it is not amenable to judicial review because the relationship is ‘consensual’ may find that equivalent public law duties arise as implied contract terms, leading to the logic of damages for breach of contract if those duties have been breached. Parliament and the Courts have not (or not yet) fashioned a general or residual public law solution to the challenges posed by the recognised injustice where unlawfulness by a public authority cries out for a monetary response. 25.3.1 No general right to damages for public law wrongs. R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52 at §43 (Lord Wilson: “The claimant is not entitled to damages for the breach of his right at common law to receive an adequate explanation for his recall”); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57 [2006] 1 AC 529 at §96 (Lady Hale: “Our law does not recognise a right to claim damages for losses caused by unlawful administrative action. … There has to be a distinct cause of action in tort or under the Human Rights Act 1998”); R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603, 382

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672H (Lord Goff: “in this country there is no general right to indemnity by reason of damage suffered through invalid administrative action”); Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, 526A (describing the difference between a basis for judicial review and “actionable wrong”); Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 [2003] 1 WLR 1763 at §49 (rejecting the idea of a new innominate tort). 25.3.2 No damages for maladministration: other cases. R v Ealing LBC, ex p Parkinson (1996) 8 Admin LR 281, 285C-F (Laws J, describing the “general principle of administrative law, namely that the law recognises no right of compensation for administrative tort”), 291H; R (Nurse Prescribers Ltd) v Secretary of State for Health [2004] EWHC 403 (Admin) at §82 (compensation “not available directly in judicial review proceedings arising out of a claim for disappointment of a legitimate expectation”); K v SSHD [2002] EWCA Civ 775 at §30 (CA insistence on proximity requirement for a common law duty of care, lest “the court would have in effect created a category of administrative tort sounding in damages”); R (Banks) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 416 (Admin) at §117 (unfair herd movement restriction order, but Court “not … able to award damages in these proceedings to the claimants even though they have suffered substantial financial loss”); R v Knowsley Borough Council, ex p Maguire [1992] COD 499 (rejecting, in the context of refusal of taxi licences, ingenious arguments as to contract, breach of statutory duty and negligence, attempting to remedy the absence of damages for breach of administrative law); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWHC 1743 (Admin) at §42 (rejecting the suggestion of a “novel” claim for “breach of common law rights”). 25.3.3 Damages: the logic of public law standards applicable via contract. Rashid v Oil Companies International Marine Forum [2019] EWHC 2239 (QB) at §74 (equivalent public law standards applicable to domestic body), §71 (here, contractual relationship), §90 (breach of natural justice, constituting breach of contract) §108 (£126,841 damages awarded); {27.2.10} (‘public law’ principles in contract claims/claims against ‘private bodies’); R (AW) v St George’s, University of London [2020] EWHC 1647 (Admin) at §§68, 78 (contract between University and student including implied duty to act fairly, duty of adherence to policy, and duty to act in accordance with regulations); Dymoke v Association for Dance Movement Psychotherapy UK Ltd [2019] EWHC 94 (QB) at §60 (implied contract terms as to lawfulness, reasonableness and fairness, referring to Braganza v BP Shipping Ltd [2015] UKSC 17 [2015] 1 WLR 1661). 25.3.4 Unavailability of monetary remedy: cause of injustice/need for a solution. Somerville v Scottish Ministers [2007] UKHL 44 [2007] 1 WLR 2734 at §77 (Lord Scott: “A chapter of public law still, however, largely unwritten relates to the ability of courts, in actions where public law challenges to administrative action have succeeded, to award compensation to those who have sustained loss as a consequence of the administrative action in question”); Jain v Trent Strategic Health Authority [2009] UKHL 4 [2009] AC 853 at §42 (Lady Hale, describing “a serious injustice here which deserved a remedy”, where “the common law of negligence does not supply one”); Stovin v Wise [1996] AC 923, 931F-G (Lord Nicholls: “a coherent, principled control mechanism has to be found”), 933F-G (referring to the “knotty problem” and “unease over the inability of public law, in some instances, to afford a remedy matching the wrong”), 940E (“public law is unable to give an effective remedy. … A concurrent common law duty is needed to fill the gap”); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 359B-C (Lord Wilberforce, speaking of English law’s “unwillingness to accept that a subject should be indemnified for loss sustained by invalid administrative action”: “In more developed legal systems this particular difficulty does not arise”); Justice/All Souls Report, Administrative Justice: Some Necessary Reforms (1988), p.364 (“A remedy should be available where a person suffers loss as a result of wrongful administrative action not involving negligence”; and “where loss is caused by excessive or unreasonable delay in reaching a decision”); Recommendation No R(84)15 of the Committee of Ministers (18 September 1984) (reparation from public authorities). 383

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25.3.5 Observations about the nature of a solution. D v East Berkshire Community Health NHS Trust [2005] UKHL 23 [2005] 2 AC 373 at §49 (Lord Bingham (dissenting in the result): “the concept of duty has proved itself a somewhat blunt instrument for dividing claims which ought reasonably to lead to recovery from claims which ought not”), §50 (“the law of tort should evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems”), §§92-94 (Lord Nicholls); Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 [2003] 1 WLR 1763 at §71 (the solution, in addressing any lacuna in the law, should be a matter for public law not private law); Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 [2004] 1 WLR 1057 at §2 (Lord Steyn: “This is a subject of great complexity and very much an evolving area of the law”; “On the one hand the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy. On the other hand, there are cases where the courts must recognise on principled grounds the compelling demands of corrective justice”); R v Commissioners of Customs and Excise, ex p F & I Services Ltd [2001] EWCA Civ 762 at §73 (Sedley LJ: “That the cases do not include damages for abuses of power falling short of [misfeasance] in public office does not necessarily mean that door is closed to them in principle. But the policy implications of such a step are immense, and it may well be that – despite the presence for some years in the rules of a power to award damages on an application for judicial review – a legal entitlement to them cannot now come into being without legislation”); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWHC 1743 (Admin) at §44 (“consideration should be given by Parliament to providing some possibility of a claim for damages for unlawful executive action which causes loss. It is clearly not something which can be done by the courts”); Sandhar v Department of Transport, Environment and the Regions [2004] EWCA Civ 1440 [2005] 1 WLR 1632 at §57 (Brooke LJ: “I do not see how this court can remedy what appears to be a significant injustice”, but “I for one would welcome it if some administrative means could be found of assisting [the claimant] out of public funds”); R v Commissioners of Customs and Excise, ex p F & I Services Ltd [2000] STC 364, 380c-d (Carnwath J, referring to negligence and public authorities as “a developing area of the law” in a “fluid state”) (CA is [2001] EWCA Civ 762); R (A) v SSHD [2004] EWHC 1585 (Admin) (recognising actionable duty of care in asylum welfare benefits context, as an incremental step in the development of the law); Mohammed v Home Office [2011] EWCA Civ 351 [2011] 1 WLR 2862 at §§25-26 (availability of redress from the ombudsman); cf Ramesh Lawrence Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385, 399F-G (constitutional “redress”, not in tort but in public law); CO Williams Construction v Donald George Blackman [1995] 1 WLR 102, 109H (statutory damages under s.5(2)(f) of the Administrative Justice Act of Barbados). 25.3.6 Public law damages and the Law Commission. Watkins v SSHD [2006] UKHL 17 [2006] 2 AC 395 at §10 (relying on the then ongoing work of the Law Commission in relation to monetary remedies in public law), §26 (describing the “undesirability of introducing by judicial decision, without consultation, a solution which the consultation and research conducted by the Law Commission may show to be an unsatisfactory solution to what is in truth a small part of a wider problem”); Mohammed v Home Office [2011] EWCA Civ 351 [2011] 1 WLR 2862 at §§19-23 (Sedley LJ, describing the work of the Law Commission, aborted in the light of government opposition: “the state’s independent law reform advisory body has had to abandon a project affecting the liability of government to govern principally because the control exercise by government over Parliament would frustrate any reform, however wise or necessary, which would make government’s life more difficult”).

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B. PARAMETERS OF JUDICIAL REVIEW further dominant themes shaping the law and practice P26 P27 P28 P29 P30 P31 P32 P33 P34 P35 P36 P37 P38 P39 P40 P41 P42 P43 P44

Delay Public/private law Ouster Interpretation Function Context Modified review Flux Reviewability/non-reviewability Principle of legality Alternative remedy Proportionality method Standing Discretion/duty Inalienability Legitimate expectation Onus Severance Nullity {1.1} means “see paragraph 1.1”

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P26 Delay. Claims must be prompt and within 3 months (or with an extension of time); undue delay can preclude permission or (if prejudicial) a remedy. 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

26.1 The approach to delay. The rules require judicial review claims to be commenced promptly and in any event within three months. At the permission stage the Court can refuse permission because of undue delay (lack of promptness): (i) where there is no good reason for extending time; or (ii) because of the combined effect of the delay and likely hardship, prejudice or detriment from the remedy sought. At the substantive hearing a remedy may be refused for delay, but on ground (ii) alone, unless ground (i) has been left open by the permission judge. At a rolled-up hearing grounds (i) and (ii) are both open. 26.1.1 Delay in judicial review: the rules. Senior Courts Act 1981 s.31(6) (“Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant – (a) [permission] for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration”); CPR 54.5(1)-(3) (“Time limit for filing claim form … (1) The claim form must be filed – (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose. (2) The time limits in this rule may not be extended by agreement between the parties. (3) This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review”); CPR PD54A §4.1 (“Where the claim is for a quashing order in respect of a judgment, order or conviction, the date when the grounds to make the claim first arose, for the purposes of rule 54.5(1)(b), is the date of that judgment, order or conviction”); R (Melton) v School Organisation Committee [2001] EWHC Admin 245 (CPR 54 approach to delay no less rigorous than it had been under the RSC Order 53 case law); {9.4.8} (delay and proceedings under the HRA: the one-year rule (s.7(5)). 26.1.2 Planning judicial review: six-week time limit. CPR 54.5(5) (“Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose”); CPR 54.5(A1) (“In this rule – ‘the planning acts’ has the same meaning as in section 336 of the Town and Country Planning Act 1990”); Administrative Court: Judicial Review Guide (2020 edition) at §5.4.3.1; Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54 [2019] PTSR 1406 at §7 (for six-week planning time limit: “Time starts to run on the day after the date of the decision letter itself”); R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1004 at §45 (declining to apply a “six-week rule” for planning cases falling outside CPR 54.5(5)); R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 at §21(1) (duty of promptness “accentuated” where challenging planning permission). 26.1.3 Procurement judicial review: special time limit. Administrative Court: Judicial Review Guide (2020 edition) at §5.4.3.3 (public contract judicial reviews), §5.4.3.4 (utilities contracts), §5.4.4.4 (no extensions of time in public contract cases); CPR 54.5(6) (“Where the application for judicial review relates to a decision governed by the Public Contracts Regulations 2015, the claim form must be filed within the time within which an economic

PARAMETERS OF JUDICIAL REVIEW

operator would have been required by regulation 92(2) of those Regulations (and disregarding the rest of that regulation) to start any proceedings under those Regulations in respect of that decision”); CPR 54.5(A1) (“In this rule – … ‘decision governed by the Public Contracts Regulations 2015’ means any decision the legality of which is or may be affected by a duty owed to an economic operator by virtue of regulations 89 or 90 of those Regulations (and for this purpose it does not matter that the claimant is not an economic operator); and ‘economic operator’ has the same meaning as in regulation 2(1) of the Public Contracts Regulations 2015”). Riverside Truck Rental Ltd v Lancashire County Council [2020] EWHC 1018 (TCC) (extensions of time refused); Secretary of State for Transport v Arriva Rail East Midlands Ltd [2019] EWCA Civ 2259 [2020] 3 All ER 948 at §133 (“fact-sensitive” approach to whether, in procurement context, whether claimant challenging later act or decision may rely on alleged breaches of public law duties in an earlier act or decision). 26.1.4 Statutory review: special time limits. Administrative Court: Judicial Review Guide (2020 edition) at §5.4.3.2 (“statutory reviews and appeals (and some judicial review procedures) in planning cases are subject to strict and short time limits for starting proceedings. In some cases, the relevant legislation does not permit the period to be extended. Claimants need to check the provisions in relevant statutes with care”), §5.4.4.4 (time cannot be extended); {28.2} (time-limit ousters). 26.1.5 Cart claim: 16-day rule. {2.3.3} 26.1.6 Public inquiry judicial reviews: 14-day time limit. Inquiries Act 2005 s.38; Administrative Court: Judicial Review Guide (2020 edition) at §5.4.3.6 (“Judicial Review of a decision of a Minister in relation to a public inquiry, or a member of an inquiry panel: The time limit for these challenges is 14 days unless extended by the Court. That shorter time limit does not apply to any challenge to the contents of the inquiry report, or to a decision of which the claimant could not have become aware until publication of the report”); R (EA) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin) at §25 (claim out of time), §41 (extension of time refused). 26.1.7 Rationale for the delay rules: the interests of speedy certainty. R (Wingfield) v Canterbury City Council [2019] EWHC 1974 (Admin) at §75 (duty of promptness ensures the proper business of government and reasonable interests of third parties are not unjustly prejudiced); R (EA) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin) at §27 (“complying with time limits for commencing judicial review proceedings is always important”); Fishermen and Friends of the Sea v Environmental Management Authority [2018] UKPC 24 [2018] PTSR 1979 at §22 (“the purpose of [the] specific time limit is to provide a degree of certainty to those affected, and accordingly … strong reasons are needed to justify extending it where other interests, public or private, are involved”); A v Essex County Council [2010] UKSC 33 [2011] 1 AC 280 at §116 (Lady Hale, endorsing the proposition that “there is a significant public interest in public law claims against public bodies being brought expeditiously” as being “true in judicial review, when remedies are sought to quash administrative decisions which may affect large numbers of people or upon which other decisions have depended and action been taken” and which is “normally a prospective remedy, aiming not only to quash the past but also to put right the future”); Trim v North Dorset District Council [2010] EWCA Civ 1446 [2011] 1 WLR 1901 at §23 (Carnwath LJ: “it is in the public interest that the legality of the formal acts of a public authority should be established without delay”); O’Reilly v Mackman [1983] 2 AC 237, 280H-281A (Lord Diplock: “The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision”), applied in R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 AC 738, 749E; R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §44 (“there is a need for public bodies to have certainty as to the legal validity of their actions. That is the rationale of Ord 53, r.4(1) [the delay rule]”); R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763, 774H-775B (“good public administration requires 388

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decisiveness and finality, unless there are compelling reasons to the contrary”); R v Aston University Senate, ex p Roffey [1969] 2 QB 538, 555C (judicial review remedies “should not be made available to those who sleep upon their rights”); Wandsworth LBC v A [2000] 1 WLR 1246, 1259E (“it is of the essence of judicial review applications that they must be brought promptly”); Regalbourne Ltd v East Lindsey District Council (1994) 6 Admin LR 102, 111H-112A (describing the “public law context”, as one 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”). 26.1.8 The need for speedy certainty: illustrations. R (Med Chambers Ltd) v Medco Registration Solutions Ltd [2017] EWHC 3258 (Admin) at §46 (importance of promptness in a case “which concerns an interim suspension and the enforcement of standards which are intended to protect third parties and the public interest”); R v Rochdale Metropolitan Borough Council, ex p B [2000] Ed CR 117, 120 (“absolutely essential that, if parents are to bring judicial review proceedings in relation to the allocation of places at secondary school for their children, the matter is heard and determined by a court, absent very exceptional circumstances, before the term starts”), approved in R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §18 (Lord Steyn); R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1986] 1 WLR 1, 15E-F (Webster J: “The regulations have been in force for about six months. … If [they] were to be [quashed] all applicants who had been refused benefit because of the new regulations would be entitled to make fresh claims, and all authorities would be required to consider each such claim”); Bushell v Secretary of State for the Environment [1981] AC 75, 104A (“schemes authorising the construction of motorways and decisions to act on such authorisations cannot be held up indefinitely”). 26.1.9 Judicial review as a speedy process: illustrations. O’Reilly v Mackman [1983] 2 AC 237, 281B (judicial review “a very speedy means, available in urgent cases within a matter of days rather than months, for determining whether a disputed decision was valid in law or not”); Somerville v Scottish Ministers [2007] UKHL 44 [2007] 1 WLR 2734 at §159 (judicial review should be disposed of promptly); Bromley LBC v Greater London Council [1983] 1 AC 768, 836C (remarkable speed of proceedings “an indication of the value of the procedure of judicial review”); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1045G (from start to HL in seven weeks); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 (Prime Minister’s advice on 27/28 August 2019, DC judgment 11 September 2019, SC hearing 17-19 September 2019, SC judgment 24 September 2019); R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin) [2020] 4 WLR 4 at §1 (claim issued 11 November 2019, rolled-up hearing determining claim 18 November 2019); Wightman v Secretary of State for Exiting the European Union (Case C-621/18) [2019] QB 199 (reference to the CJEU in September 2018, CJEU hearing in November 2018, CJEU judgment in December 2018, applying the expedited process: see §18); R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 (from claim to SC judgment within six months); Shindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469 [2017] QB 226 (claim filed 16 March 2016, DC judgment 28 April 2016, CA hearing 9 May 2016, CA judgment 20 May 2016, SC refusal of permission to appeal 24 May 2016); R (Shergill) v Harrow Crown Court [2005] EWHC 648 (Admin) at §2 (bail challenge heard within 48 hours); R (Paul) v Inner West London Assistant Deputy Coroner [2007] EWCA Civ 1259 [2008] 1 WLR 1335 at §§2-3 (to CA judgment within 21 days of decision); R (SR) v Huntercombe Maidenhead Hospital [2005] EWHC 2361 (Admin) at §35 (claim to judgment within three weeks); R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763 (less than one month from start of claim to CA decision); Mayor etc of London Borough of Wandsworth v National Association of Schoolmasters/Union of Women Teachers [1994] ELR 170, 183B (eight days from claim to conclusion of hearing); R v Council of the Society of Lloyds, ex p Johnson 16 August 1996 unreported (judgment within nine working days of permission); 389

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R (CPS) v Registrar General of Births, Deaths and Marriages [2002] EWCA Civ 1661 [2003] QB 1222 at §1 (decided by CA within three days of decision of Administrative Court); {21.4} (directing a rolled-up hearing); {21.5.17} (directions for expedition/abridgement). 26.1.10 Promptness and legal certainty. Uniplex (UK) Ltd v NHS Business Services Authority (C-406/08) [2010] PTSR 1377 (promptness component of procurement regulations infringing EU principle of legal certainty), considered in Re Rail Franchising Litigation [2019] EWHC 2047 (TCC) at §33 (CA is [2019] EWCA Civ 2259 [2020] 3 All ER 948); R (Berky) v Newport City Council [2012] EWCA Civ 378 [2012] 2 CMLR 44; R (Hardy) v Pembrokeshire County Council [2006] EWCA Civ 240 [2006] Env LR 659 at §§11-18 (promptness requirement sufficiently certain to be HRA:ECHR-compatible); R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §53 (question raised by Lord Steyn). 26.1.11 Delay and the public interest litigant. Fishermen and Friends of the Sea v Environmental Management Authority [2018] UKPC 24 [2018] PTSR 1979 at §30 (where claimant a “public interest litigant … this is not a reason for applying the delay rules with less rigour”), §32 (but doubting also whether “appropriate to apply stricter standards”); {38.2.13} (standing and the public interest). 26.1.12 Delay is not always fatal: illustrations. {26.3} (extension of time); R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 (5½ years delay in challenging planning permission not fatal in this wholly exceptional case); R v Greenwich LBC, ex p Patterson (1994) 26 HLR 159 (CA overturning decision to refuse remedy for delay, there being a good reason and no hardship/prejudice); R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 (successful judicial review quashing 1971 Immigration Ordinance, challenged in 1999); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1157H, 1171B-C (14 months: where pursuit of industrial tribunal claim and legal aid); R v Eastleigh Borough Council, ex p Betts [1983] 2 AC 613, 622H-623C (14 months); Gowa v Attorney-General [1985] 1 WLR 1003, 1007F-1008E (26 months); R v Secretary of State for Foreign & Commonwealth Affairs, ex p Ross-Clunis [1991] 2 AC 439, 440G and 443G (eight years); cf In re Sampson [1987] 1 WLR 194, 195B-196A (permission to appeal granted 41 months after the decision of the Divisional Court). 26.1.13 Meaning of ‘undue delay’. R (Badmus) v SSHD [2020] EWCA Civ 657 at §59 (“The expression ‘undue delay’ … is to be read as meaning a failure to act promptly or within three months”), referring to R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 AC 738, 746; R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199 at §122. 26.1.14 Reading the delay rules as a whole. R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 AC 738 (discussing s.31 and the equivalent provisions in the then rules), 747B-C (“when an application for [permission] to apply is not made promptly and in any event within three months, the court may refuse [permission] on the ground of delay unless it considers that there is good reason for extending the period; but, even if it considers that there is such good reason, it may still refuse [permission] (or, where [permission] has been granted, [a] substantive [remedy]) if in its opinion the granting of the [remedy] sought would be likely to cause hardship or prejudice (as specified in section 31(6)) or would be detrimental to good administration”); R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §18 (s.31(6) described as “a useful reserve power in some cases, such as where an application made well within the three month period would cause immense practical difficulties”). 26.1.15 Delay issues at the permission stage. R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 AC 738, 747B-G (Lord Goff: “when an application for [permission] to apply is not made promptly and in any event within three months, the court may refuse [permission] on the ground of delay unless it considers that there is good reason for extending the period; but, even if it considers that there is such good reason, it may still refuse [permission] … if in its opinion the granting of the [remedy] sought would be likely to cause hardship or 390

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prejudice”); R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 341B-F (Lord Slynn, explaining that permission “may be given if the court considers that good reason for extending the period has been shown”); R (Webster) v Secretary of State for Exiting the European Union [2018] EWHC 1543 (Admin) [2019] 1 CMLR 8 at §20 (delay in challenging mode of withdrawal from the EU, and no good reason to extend time), §21 (undue delay and granting relief would be detrimental to good administration); {P21} (permission stage); {10.3.7} (aspects of claimant candour: including to disclose delay); {26.3} (extension of time); {26.4} (hardship, prejudice and detriment); {21.4} (directing a rolled-up hearing); {21.4.5} (rolled-up hearing: keeping all delay issues open); {21.4.3} (origins of the ‘rolledup’ hearing). 26.1.16 Delay at the permission stage: opportunity for defendant/interested party. Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §41 (“the pre-action letter of response allows a respondent or interested party to draw attention to the possibility of any prejudice or detriment. Compliance with pre-action protocols and the Civil Procedure Rules should ensure that in most cases issues of prejudice or detriment to good administration are identified at the outset”); {19.1.9} (letter of response); {19.3} (acknowledging the claim). 26.1.17 Delay issues at the substantive hearing: s.31(6) only. Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §41 (“issues of prejudice and detriment resulting from delay … may still be a bar to relief at the substantive hearing”); R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 at §21(6) (“Once the court has decided that an extension of time for issuing the claim is justified and has granted it, the question cannot be re-opened when the claim itself is heard”); Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §65 (“Where … permission is granted … [the] question of undue delay can be considered only for the purpose of deciding whether to refuse relief under s.31(6)”); R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 341B-F (“If [permission] is given, then … it does not fall to be reopened at the substantive hearing on the basis that there is no ground for extending time. … What the court can do under section 31(6) is to refuse to grant [a remedy]”); R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 AC 738, 747G (“the fact that the single judge had granted [permission] … did not preclude the court from subsequently refusing substantive [remedy] on the ground of undue delay in the exercise of its discretion under section 31(6)”); R (Lichfield Securities Ltd) v Lichfield District Council [2001] EWCA Civ 304 [2001] 3 PLR 33 at §34 (“undue delay is placed by s.31(6)(b) on the agenda at the substantive hearing. … But it does not follow … that the judge at the substantive hearing should proceed as if the issue had never previously arisen in the case, at least where it has been properly argued out between the parties at the [permission] stage. … While ultimately it is a matter for the judge hearing the substantive application, we consider that the appropriate course … is that the [defendant] should be permitted to recanvass, by way of undue delay, an issue of promptness which has been decided at the [permission] stage in the [claimant]’s favour only (i) if the judge hearing the initial application has expressly so indicated; (ii) if new and relevant material is introduced on the substantive hearing; (iii) if, exceptionally, the issues as they have developed at the full hearing put a different aspect on the question of promptness; or (iv) if the first judge has plainly overlooked some relevant matter or otherwise reached a decision per incuriam”), applied in R (AB) v Ealing LBC [2019] EWHC 3351 (Admin) [2020] ACD 23 at §44; R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199 at §§130-133; R v Chief Constable of West Yorkshire, ex p Wilkinson [2002] EWHC 2353 (Admin) at §41; R (Bokrosova) v Lambeth LBC [2015] EWHC 3386 (Admin) [2016] PTSR 355 at §92 (judge granted permission on the papers and “did not refer to any lack of promptness”), §94 (court at substantive hearing entitled to reconsider “promptness”), §96 (“I do not consider that the issue of delay was ‘properly argued out at the [permission] stage’, not least because there was no adversarial hearing …; nor do I think there are unambiguous findings about it by [the judge] which it would be wrong for me to revisit. … Moreover, I have material which [the judge] did not have”); R (Holmes) v General Medical Council [2001] EWHC 321 (Admin) at §94 391

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(Lichfield approach “essentially concerned with the problems that arise once a fully reasoned judgment after oral argument has been delivered on the issue [of delay and prejudice]”); R v South Northamptonshire District Council, ex p Crest Homes Plc (1995) 93 LGR 205, 209-210 (appropriate to “decide the substantive points before considering whether to refuse [a remedy] because of the delay. Clearly, the nature and importance of the flaw in the challenged decision must be a major factor in the exercise of discretion involved in the grant of [a remedy]”). 26.1.18 Permission judge: acting to keep all delay issues open. {21.4.5} (rolled-up hearing: keeping all delay issues open); R (Lichfield Securities Ltd) v Lichfield District Council [2001] EWCA Civ 304 [2001] 3 PLR 33 at §34 (“the [defendant] should be permitted to recanvass, by way of undue delay, an issue of promptness … if the judge hearing the initial application has expressly so indicated”); R (Liverpool City Council) v Secretary of State for Health [2017] EWHC 986 (Admin) [2017] PTSR 1564 at §48 (“In granting permission …, Soole J expressly reserved to the court hearing the claim the question of delay”); R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199 at §128; {26.4.7} (permission judge: leaving hardship, prejudice and detriment to the substantive hearing). 26.1.19 Delay affecting type of remedy. R (CPS) v City of London Magistrates’ Court [2007] EWHC 1924 (Admin) at §24 (declaration granted, but mandatory orders refused because of delay by CPS); R v Director of Passenger Rail Franchising, ex p Save Our Railways [1996] CLC 589, 606G-H (remedy as to certain orders refused because of undue delay); R v Rochdale Metropolitan Borough Council, ex p Schemet [1994] ELR 89 (refusing quashing order (certiorari), because of delay, but granting declarations that decision to introduce new policy unlawful, and that legitimate expectation existing that old policy (free travel passes) should continue until rational grounds given and opportunity to comment), 100G (“the delay ought not to lead to the rejection of the application, although it should affect the [remedy] granted”); R v Dorset Police Authority, ex p Vaughan [1995] COD 153 (even if delay a reason for refusing remedy, still appropriate to grant a declaration of unlawfulness); R v Neath and Port Talbot Justices, ex p DPP [2000] 1 WLR 1376, 1381G-H (setting out the factors which should affect whether or not to grant a remedy as a matter of discretion, so as to order a retrial, notwithstanding the lapse of time). 26.1.20 Refusing remedy: role of certainty/detriment where no delay. {24.3} (remedy as a discretionary matter); R v Secretary of State for the Environment, ex p Walters (1998) 30 HLR 328, 380-382 (court entitled to have regard to hardship, prejudice and detriment to good administration even where no undue delay by claimant in bringing proceedings); R v Chief Constable of Devon and Cornwall, ex p Hay [1996] 2 All ER 711, 726d-g (Court unwilling to undo decision); R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities (1993) 5 Admin LR 6, 16C-D (referring to “a public interest in not upsetting regulations which have been made unless good reason can be shown for doing so”); cf R v Secretary of State for Education and Employment, ex p National Union of Teachers 14 July 2000 unreported (Order quashed, distinguishing AMA); R v Birmingham City Council, ex p Dredger (1994) 6 Admin LR 553, 577A-G (remedy granted notwithstanding disruption, expenditure and reallocation of funds); R (Langley Park School for Girls Governing Body) v Bromley LBC [2009] EWCA Civ 734 [2010] 1 P & CR 197 at §64 (Sullivan LJ: “it is almost inevitable that the recipient of a grant of planning permission will be prejudiced if the permission is quashed. In the absence of any undue delay or lack of promptness that us not, in itself, a sufficient reason for the Court to exercise its discretion not to quash the permission”). 26.1.21 Speed/delay during the proceedings. R (Rajput) v Waltham Forest LBC [2011] EWCA Civ 1577 (2012) 15 CCLR 147 (permission for judicial review refused by the CA for delay after an undertaking was discharged, after which the decision was implemented), §53 (Rimer LJ: “Judicial review is a discretionary remedy. In deciding whether to grant permission, the court is entitled to look at the case overall, and in doing so to take account of any lack of urgency by the claimants in pursuing their case and any detriment to good administration caused by their failure to do so”), §55 (“Although there was no ‘undue delay’ in making the original application, there was undue and unexplained delay in responding to the new situation resulting from the discharge of the undertaking. That has undoubtedly been 392

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prejudicial to good administration and … justifies … confirming the refusal of permission”); cf R v Birmingham City Council, ex p Dredger (1994) 6 Admin LR 553, 577E (Hutchison J: “small weight should be given to delay occasioned since the commencement of proceedings”); {21.5.17} (directions for expedition/abridgement); {3.1} (procedural rigour); {22.1.29} (adjournment of the judicial review claim).

26.2 Promptness and the running of time. The judicial review claimant has a duty under the rules to act promptly, not a right to start the claim within a three-month limitation period. Some contexts call for special promptness. The clock starts when the grounds first arise and does not stop until the claim is filed. 26.2.1 Promptness and three months: the delay rules. {26.1.1} 26.2.2 Stopping the clock. CPR 54.5(1) (“The claim form must be filed”); R v SSHD, ex p Chetta [1996] COD 463 (judicial review proceedings instituted when notice of application for permission to proceed with claim for judicial review made: ie documents lodged with (and stamped by) Administrative Court Office); Administrative Court: Judicial Review Guide (2020 edition) at §5.4.1 (“The way to start a claim is to file a Claim Form that meets the requirements set out in CPR Part 54”), §6.3.6 (where non-compliant claim form returned, not considered to have been filed). 26.2.3 Pre-action correspondence: relationship with promptness. {19.1.7} 26.2.4 Delay: no circumvention merely by provoking a fresh letter. Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §69 (Chamberlain J: “A decision-maker is under no obligation to reconsider a final decision once it has been communicated. … A claimant cannot in general start time running again by writing a letter asking the decision-maker to reconsider and then treating the refusal to reconsider as a new decision. But where the decision-maker, in response to a request to reconsider, chooses to conduct an internal review – and, as here, tells the requester that it is holding off publishing its final decision while it gives ‘serious consideration’ to the points made – the position is different. … In these circumstances, the final [decision] was a separate, challengeable decision”); R (EA) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin) at §§16-25 (time running from date of decision, not subsequent letter); R v Newbury District Council, ex p Chieveley Parish Council (1998) 10 Admin LR 676 (court looks to the decision which in substance is being challenged, not a later claimed acknowledgement of its validity); R v Commissioner for Local Administration, ex p Field [2000] COD 58 (delay problem not overcome merely by writing fresh letter and obtaining a reply which was then sought to be characterised as fresh decision). 26.2.5 Significance of three months. Mauritius Shipping Corp Ltd v Employment Relations Tribunal [2019] UKPC 42 at §8 (“The primary requirement is that the application be made promptly. The requirement that it be made in any event within three months is a ‘longstop’”); Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §37, citing R v Chief Constable of Devon and Cornwall, ex p Hay [1996] 2 All ER 711, 732a (“the practice of [the] court is to work on the basis of the three-month limit and to scale it down wherever the features of the particular case make that limit unfair to the [defendant] or to third parties”); R (A1 Veg Ltd) v Hounslow LBC [2003] EWHC 3112 (Admin) [2004] LGR 536 at §40 (“a useful starting point is that when judicial review claims are brought within the prescribed three month period, there is a rebuttable presumption that they have been brought promptly”); R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 at §38 (3 January 2018 treated as “the last day of the three month-period” to challenge order of 3 October 2018). 26.2.6 Lack of promptness although claim brought within three months. Mauritius Shipping Corp Ltd v Employment Relations Tribunal [2019] UKPC 42 at §17; R (Liverpool City Council) v Secretary of State for Health [2017] EWHC 986 (Admin) [2017] PTSR 1564 at §§44-48 (lack of promptness, albeit within 3 months, in judicial review of funding decision 393

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in budget); R (Med Chambers Ltd) v Medco Registration Solutions Ltd [2017] EWHC 3258 (Admin) at §§18, 44 (within 3 months but lack of promptness); Fishermen and Friends of the Sea v Environmental Management Authority [2018] UKPC 24 [2018] PTSR 1979 at §22 (“It is important to emphasise that there is a duty to act ‘promptly’ regardless of the threemonth limit”); R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 at §40 (delay within 3 months “understandable and not reprehensible”); R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §18 (s.31(6) described as “a useful reserve power in some cases, such as where an application made well within the three month period would cause immense practical difficulties”); R (CPS) v Newcastle upon Tyne Youth Court [2010] EWHC 2773 (Admin) at §§27, 29 (five weeks not prompt in the circumstances); R v Independent Television Commission, ex p TV NI Ltd (1991) [1996] JR 60 (delay within three months); R v Director of Passenger Rail Franchising, ex p Save Our Railways [1996] CLC 589, 606G (three months constituting “undue” delay in all the circumstances). 26.2.7 Promptness and certainty. {26.1.7} (rationale for the delay rules: the interests of speedy certainty). 26.2.8 Promptness and prejudice to third parties/detriment to good administration.71 Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §36 (“as a matter of principle, considerations of prejudice to others and detriment to good administration may, depending on the circumstances, be relevant to the determination of … whether there has been a lack of promptitude”), §37 (“The presence or absence of prejudice or detriment is likely to be a key consideration in determining whether an application has been made promptly or with undue or unreasonable delay”; “likely to be the predominant consideration”), referring to R v Independent Television Commission, ex p TV NI Ltd (1991) [1996] JR 60; R v Secretary of State for Health, ex p Furneaux [1994] 2 All ER 652, 658e (“The obligation … to proceed promptly … is of particular importance where third parties are concerned”); R v Director of Passenger Rail Franchising, ex p Save Our Railways [1996] CLC 589, 606G (“imperative need for the [claimants] to take action with the utmost promptness”); R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415, 438 (“The courts have very firmly stated that a judicial review [claimant] must proceed with particular urgency where third party interests are involved. … [T]he principle is plainly established”). 26.2.9 When grounds first arose: the running of time. CPR 54.5(1) (“… (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose”); CPR PD54A §4.1 (“Where the claim is for a quashing order in respect of a judgment, order or conviction, the date when the grounds to make the claim first arose, for the purposes of rule 54.5(1)(b), is the date of that judgment, order or conviction”); 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 (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438 at §70 (claimant entitled to challenge outcome of consultation process for unfairness, not required to have challenged the unfair act itself); R v Inland Revenue Commissioners, ex p Allen [1997] STC 1141, 1151b-c (in truth, challenge to commencement not continuation of criminal proceedings); R v Horse Race Betting Levy Board, ex p National Association of Bookmakers 7 September 1998 unreported (claimant should have challenged decision to appoint subcommittee, not wait for implementation of outcome); R (Horeau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) [2019] 1 WLR

71The

equivalent paragraph in an earlier edition was relied on in R (Law Society) v Legal Services Commission [2010] EWHC 2550 (Admin) at §116 (Moses LJ and Beatson J); Allan Rutherford LLP v Legal Services Commission [2010] EWHC 3068 (Admin) at §52 (Burnett J).

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4105 at §285 (treating complaint as one which should have been raised when it arose earlier during the consultation process) (not pursued in CA: [2020] EWCA Civ 1010 at §86). 26.2.10 Date of decision or communication? Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §68 (Chamberlain J: “There has been a debate in the literature about whether the date on which ‘grounds to make the claim first arose’ is the date on which the decision was made or the date on which it is communicated”), referring to R v Department of Transport, ex p Presvac Engineering Ltd (1992) 4 Admin LR 121 at 133D-H (relevant date is when grounds arose not claimant’s knowledge); cf R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §26 (“Notice of a decision is required before it can have the character of a determination with legal effect”); Administrative Court: Judicial Review Guide (2020 edition) at §5.4.2.2 (“The time limit begins to run from the date the decision to be challenged was made (not the date when the claimant was informed about the decision)”). 26.2.11 Running of time: relevance of claimant’s knowledge. R (Crompton) v South Yorkshire Police and Crime Commissioner [2017] EWHC 1349 (Admin) [2018] 1 WLR 131 at §103 (“time runs from the date when the grounds first arose not on the date when the claimant learned of the decision”), referring to R v Department of Transport, ex p Presvac Engineering Ltd (1992) 4 Admin LR 121 at 133D-H (relevant date is when grounds arose not claimant’s knowledge); cf R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §26 (“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”); R (Macrae) v Herefordshire District Council [2012] EWCA Civ 457 at §12 (promptness depends on all the circumstances, including “the extent to which … the decision ‘leaves the claimant in the dark’ as to the basis on which it was taken”), §18, §22 (“in truth, no lack of promptness if it was reasonable for the [claimant’s] solicitors to ascertain the basis of the [defendant’s] decision”); cf Riverside Truck Rental Ltd v Lancashire County Council [2020] EWHC 1018 (TCC) at §42 (procurement claims: running of time from “the date when the economic operator first knows or ought to have known that the grounds for starting proceedings had arisen”); {26.3.6} (extension of time: nature/timing of claimant’s knowledge). 26.2.12 Challenge to an impugned measure/instrument, when first applied to claimant. R (Hughes) v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin) at §91 (Lewis J: “In the context of a claim relating to legislative provisions, the grounds for bringing a claim for judicial review first arise in relation to a particular claimant when that claimant is affected by the legislative provisions under challenge (not the date on which the legislative provisions were enacted or came into force)”); R (Badmus) v SSHD [2020] EWCA Civ 657 at §§39, 62 (“cases where the challenge is to a decision taken pursuant to secondary legislation, where the ground to bring the claim first arises when the individual entity with standing to do so is affected by it”, where time runs from the date of the decision applying the instrument to the claimant), §63 (referring to this as “the person specific category”), §77 (“the grounds for making a judicial review claim first arise when a person is affected … by the application of the challenged policy or practice”), §78 (“ it was only when the claimant first became affected by the measure or policy that he or she had sufficient status or standing to bring the judicial review claim. So far as the claimant was concerned, the grounds to make the claim cannot have arisen before then. … [T]here is a general equivalence between standing and a claimant being affected by the challenged legislation, policy or practice”), §82 (“consistent pattern over decades”); R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199 at §127 (“the [claimants] had standing to bring judicial review proceedings challenging the Pensions Acts which affected them as soon as those Acts were passed”); R (Coughlan) v Minister for the Cabinet Office [2019] EWHC 641 (Admin) [2019] 1 WLR 3851 at §87 (claimant not required to challenge announcement of local election pilot schemes until decision announced to introduce a scheme for his local area) (CA is [2020] EWCA Civ 723 [2020] 1 WLR 3300); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at 395

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§167 (describing cases in which secondary legislation is impugned but “where the challenge is to a decision taken pursuant to [the] secondary legislation” and “the ground to bring the claim first arises when the individual or entity with standing to do so is affected by it”, by contrast with “challenge … to secondary legislation in the abstract”); R (Brown) v SSHD [2015] UKSC 8 [2015] 1 WLR 1060 (statutory instrument successfully challenged in judicial review) at §6 (impugned statutory instrument made in 2003), §9 (decisions applying the instrument to the claimant made in October 2010), §10 (statutory instrument challenged by judicial review in November 2010); R (Cukurova Financial International Ltd) v HM Treasury [2008] EWHC 2567 (Admin) at §29 (when regulations made, claimant “had no possible reason to question their validity of those Regulations and no standing to do so”), §30 (nevertheless where “challenge is to the vires of the Regulations … grounds for making the challenge arose when … [they] were unlawfully made or came into force”); R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 (judicial review of 1999 asylum refusals by impugning lawfulness of 1996 Order); cf 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 (Connor) v Secretary of State for Work and Pensions [2020] EWHC 1999 (Admin) (successful judicial review challenge to 2013 Regulation, brought following its application to claimant in 2018/2019: see §§9, 11-13); 26.2.19} (delay and ‘continuing’ question of incompatibility). 26.2.13 Challenge to an impugned measure/instrument, in the abstract. R (Badmus) v SSHD [2020] EWCA Civ 657 at §§39, 62 (referring to “cases … where the challenge is to secondary legislation in the abstract”, where time runs from the date of the instrument), §63 (referring to this as “the abstract category”), §83 (describing this category as including “challenges in principle by activist and non-governmental organisations to legislation or policy which affects them in that the challenge falls within their objects”); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §167 (describing cases “where the challenge is to secondary legislation in the abstract”); R (Morita) v SSHD [2019] EWHC 758 (Admin) at §§55-62 (where lawfulness of policy challenged, and no “decision” applying it to the claimants, time treated as running from the date when policy was first made); R (British Aggregates Associates) v Her Majesty’s Treasury [2002] EWHC 926 (Admin) [2002] EuLR 394 at §154 (time starting to run from the date of Royal Assent of the legislation complained of, not its subsequent implementation by statutory instrument); R v Customs & Excise Commissioners, ex p Eurotunnel Plc [1995] CLC 392, 400E-F (“Prima facie the dates when the orders were made are the dates when the grounds for the application first arose. See R v HM Treasury, ex p Smedley [1985] QB 657 per Donaldson MR at p.667. … However, there is an argument for saying that time did not begin to run until the dates when the orders came into force and for present purposes we would be prepared to assume … that these were the relevant dates”). 26.2.14 Preliminary decision and later decision both challengeable: Burkett and Nash. R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §38 (possible in principle to challenge preliminary decision such as planning resolution, or to wait and challenge grant of planning permission); R (Nash) v Barnet LBC [2013] EWCA Civ 1004 [2013] PTSR 1457 at §§42, 59 (endorsing the following approach: “If the earlier decision is no more than a preliminary, or provisional, foreshadowing of the later decision, Burkett does indeed apply so that the later, ‘final’, decision falls to be treated as a new decision, the grounds for challenging which ‘first arise’ only when it is made. But if the earlier and later decisions are distinct, each addressing what are substantially different stages in a process, then it is necessary to decide which decision is in truth being challenged; if it is the earlier, then the making of the second decision does not set time running afresh”), applied in R (Peters) v Haringey LBC [2018] EWHC 192 (Admin) [2018] PTSR 1359 at §§153-154 (earlier decision should have been challenged; not sufficient later to challenge “plainly consequential decisions”), §§163, 165 (applying Nash); cf R v Port Talbot Borough Council, ex p Jones [1988] 2 All ER 207, 215j (challenge properly to 1986 decision; challenge to 1984 resolution would have been premature). 396

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26.2.15 Delay and ‘ongoing process’. Secretary of State for Transport v Arriva Rail East Midlands Ltd [2019] EWCA Civ 2259 [2020] 3 All ER 948 at §119 (“What happens if there is an ongoing process in which, at least theoretically, more than one decision may fall to be challenged?”), §122 (“general principles to be taken into account are, on the one hand, the fact that judicial review is a remedy of last resort and that an early challenge should not generally be made before the final outcome is known …; and, on the other hand, the need for a readily ascertainable starting date, and the detrimental effect of a judicial discretion that is too broadly based”), §133 (“a fact-sensitive issue”); {26.3.9} (extension of time: ongoing sequence of decisions). 26.2.16 Delay and ‘continuing’ act/state of affairs.72 R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) at §197 (operations in breach of planning control “a continuing state of affairs”); R (H) v London Borough of Brent [2002] EWHC 1105 (Admin) [2002] ELR 509 at §15 (“continuing” nature of council’s position as to payment of school transport costs treated as a good reason for entertaining the claim despite delay); cf O’Connor v Bar Standards Board [2017] UKSC 78 [2017] 1 WLR 4833 (applying one year rule under HRA s.7(5)) at §23 (rule 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”); R v Secretary of State for Foreign & Commonwealth Affairs, ex p Ross-Clunis [1991] 2 AC 439 (continuing failure to recognise citizenship); R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1155 (continuing education arrangements). 26.2.17 Delay and ‘continuing’ policy/practice. R v Warwickshire County Council, ex p Collymore [1995] ELR 217, 228G-229D (treating unlawfulness of (continuing) policy as a reason to extend time, especially insofar as remedy sought is prospective), applied in R v East Sussex County Council, ex p Ward (2000) 3 CCLR 132 at §37 (permission had been granted on condition that no remedy would be granted in respect of an earlier period, in the light of delay considerations); R v Westminster City Council, ex p Hilditch 14 June 1990 unreported (Nicholls LJ: “If the policy is unlawful, prima facie it should be discontinued”), applied in R v Rochdale Metropolitan Borough Council, ex p Schemet [1994] ELR 89, 100H; R v Richmond upon Thames LBC, ex p McCarthy & Stone (Developments) Ltd [1992] 2 AC 48 (continuing practice). 26.2.18 Delay and ‘continuing’ duty/unlawfulness. R (Bamber) v CPS [2020] EWHC 1391 (Admin) at §40 (Julian Knowles J: “I am not concerned about the … delay point. There is an ongoing duty”); R (AM) v Newham LBC [2020] EWHC 327 (Admin) [2020] PTSR 1077 at §118(i) (rejecting delay objection where claim “a complaint about a continuing breach of statutory duty”); R (Fire Brigade Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (Admin) [2018] 3 CMLR 27 at §142 (rejecting a delay objection in the context where “the illegality is continuing”); R v Eastleigh Borough Council, ex p Betts [1983] 2 AC 613 (continuing duty to house); London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 197B-C (continuing duty to issue a valid certificate). 26.2.19 Delay and ‘continuing’ question of incompatibility. R (Johnson) v SSHD [2016] UKSC 56 [2017] AC 365 at §28 (discussing the Strasbourg “concept of a ‘continuing situation’ … a state of affairs which operates by continuous activities by or on the part of the state to render the applicants victims”); O’Connor v Bar Standards Board [2017] UKSC 78 [2017] 1 WLR 4833 (applying one-year rule under HRA s.7(5)) at §23 (rule 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”); R (C) v Secretary of State for Justice [2010] EWHC 3407 (Admin) at §11 (Burton J: “There is no doubt about the principle, particularly in European [Union] law but obviously extendable to Human Rights legislation, in many authorities that where there is a continuing obligation, 72The

equivalent of this and subsequent paragraphs in a previous edition were relied on in MR (Albania) v Minister for Justice and Equality [2020] IEHC 402 at §51 (Richard Humphreys J).

397

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a continuing state of affairs, which continue not to be put right by the Defendant, time does not run against a claimant at least until that state of affairs has come to an end”); R (Federation of Technological Industries) v Commissioners of Customs and Excise [2004] EWHC 254 (Admin) at §2 (rejecting delay complaint, where “on-going legislative provisions” and question of consistency with EU law) (CA is at [2004] EWCA Civ 1020); R v Secretary of State for Employment, ex p Seymour-Smith (No 2) [2000] 1 WLR 435, 451G-452A (need to keep impact of measure under review); R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1 (challenge to 1978 Act); R v Ministry of Agriculture Fisheries & Food, ex p Bostock [1994] I ECR 955 (failure to enact primary legislation); cf R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199 at §124 (“Unlawful legislation is not a continuing unlawful act in the sense that the time limit for challenging it by way of judicial review rolls forward for as long as the legislation continues to apply”); {26.2.12} (challenge to an impugned measure/instrument, when first applied to claimant); {26.2.13} (challenge to an impugned measure/instrument, in the abstract). 26.2.20 Delay and multiple targets.73 {5.3} (multiple targets); {26.2.14} (preliminary decision and later decision both challengeable: Burkett and Nash); R v Richmond upon Thames LBC, ex p McCarthy & Stone (Developments) Ltd [1992] 2 AC 48 (judicial review of council’s decision not to revoke its practice of charging (including the claimant) for pre-application advice); R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1155 (challenge to current arrangements, directed at later meetings but which the EOC had considered illegal for some 18 months); R v Secretary of State for Foreign & Commonwealth Affairs, ex p Ross-Clunis [1991] 2 AC 439 (challenging ‘decisions’ in both 1980 and 1988); Newbury District Council v Secretary of State for the Environment [1981] AC 578, 594B (condition imposed in 1962, could have been appealed then; instead statutory challenge to enforcement notices served 10 years later); R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 (judicial review challenge to validity of the Hunting Act 2004, albeit basis of challenge involving impugning Parliament Act 1949); R v Secretary of State for Transport, ex p National Insurance Guarantee Corporation Plc [1996] COD 425 (refusal to amend Regulations); R v Islington LBC, ex p East [1996] ELR 74, 86B-C (subsequent decision by full council as “a substantive decision in its own right”); R v Secretary of State for Trade and Industry, ex p Greenpeace [2000] Env LR 221, 258-261 (further round of licensing decisions constituting relevant distinct events susceptible to judicial review); R v London Borough of Hammersmith, ex p CPRE London Branch [2000] Env LR 532 (decision refusing to revoke planning permission).

26.3 Extension of time. A claimant bringing judicial review proceedings without the promptness which the context and circumstances require, or outside three months, needs an extension of time. The Court will need ‘good reason’ to extend time and a wide range of factors are relevant. 26.3.1 Extension of time: CPR 3.1(2). See CPR 3.1(2) (“(2) Except where these Rules provide otherwise, the court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)”); R (Badmus) v SSHD [2020] EWCA Civ 657 at §85 (extension of time in judicial review is “pursuant to CPR 3.1(2)”); Secretary of State for Transport v Arriva Rail East Midlands Ltd [2019] EWCA Civ 2259 [2020] 3 All ER 948 at §55 (Coulson LJ: “It is important to note that the 3-month period in r.54.5(1)(b) is not set in stone: the court can, in an appropriate case, extend that period by reference to CPR 3.1(2)(a)”); Gerber v Wiltshire Council [2016] EWCA Civ 84 [2016] 1 WLR 2593 at §9. (Note that the old 1977 RSC Order 53 r 4(1) (still applicable in some PC cases and discussed in the pre-CPR cases) said: “unless the Court considers that there is good reason for extending

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equivalent paragraph in a previous edition was relied on in PCCW-HKT Telephone Ltd v SFC [2014] HKCFI 1233 at §35 (Hon Ng J).

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the period”). Cf R (QR (Pakistan)) v SSHD [2018] EWCA Civ 1413 at §45 (Hickinbottom LJ: “The proper approach to an extension of time in the circumstances of this case is that set out in respect of relief from sanctions in Mitchell … and Denton”); {3.1.14} (relief from sanctions (Mitchell/Denton) in judicial review). 26.3.2 No extension of time by agreement. CPR 54.5(2) (“The time limits in this rule may not be extended by agreement between the parties”); Administrative Court: Judicial Review Guide (2020 edition) at §5.4.2.1 (“The time limit may not be extended by agreement between the parties”); {19.2.7} (parties cannot extend time for claim form by agreement); {26.3.4} (extension of time: parties’ prior agreement ‘not to take a time point’ (‘shield letter’)). 26.3.3 Extension of time: general guidance. Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §38 (whether a good reason to extend time “will be likely to bring in many considerations beyond those relevant to an objectively good reason for the delay, including the importance of the issues, the prospects of success, the presence or absence of prejudice or detriment to good administration, and the public interest”); Riverside Truck Rental Ltd v Lancashire County Council [2020] EWHC 1018 (TCC) at §100 (“A wide range of factors are potentially relevant to the question of whether there should be an extension of time in any particular judicial review claim”), §101 (here, “potentially relevant considerations … i) Whether there is a reasonable objective excuse for the claim having been commenced out of time. ii) The presence or absence of prejudice to the defendant and/or third parties. iii) Whether the public interest requires that the claim be allowed to proceed”); R v Secretary of State for Trade and Industry, ex p Greenpeace [2000] Env LR 221, 261-264 (asking: “(i) Is there a reasonable objective excuse for applying late?; (ii) What, if any, is the damage, in terms of hardship or prejudice to third party rights and detriment to good administration, which would be occasioned if permission were now granted?; (iii) In any event, does the public interest require that the application should be permitted to proceed?”), discussed in Maharaj at §30 (as a decision which “has been influential with regard to the correct approach to delay”); cf Al Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51 [2020] 1 WLR 1546 (discussing “good reason” in Housing Act 1996 s.204) at §30 (“all the circumstances are to be taken into account without applying any particular presumptions”); R v London Borough of Newham, ex p Ajayi (1996) 28 HLR 25 (suggesting that, in an exceptional case, Court may entertain judicial review even though delay and claimant has failed to show a good reason for extending time). 26.3.4 Extension of time: parties’ prior agreement ‘not to take a time point’ (‘shield letter’). R (Archer) v HMRC [2019] EWCA Civ 1021 [2019] 1 WLR 6355 at §92 (Henderson LJ, explaining that “the sensible course” for a taxpayer pursuing “a potential alternative remedy” is to “seek HMRC’s agreement that time for judicial review purposes should not begin to run until the … procedure has been completed”, so that the court can “adopt a flexible and pragmatic approach” to delay and “if necessary ensure that the taxpayer is not prejudiced”, including giving “short shrift” to any refusal to agree “without justification”); R (Rafique-Aldawery) v St George’s, University of London [2018] EWCA Civ 2520 [2019] PTSR 658 (addressing the problem of whether a claimant should issue judicial review protectively, to avoid the risk of losing rights if pursuit of an alternative remedy is unsuccessful) at §21 (Davies LJ: where claimant “uncertain as to the course to be taken, it would be open … to write to [the proposed defendant] stating that they do not, at that time, wish to institute proceedings for judicial review but putting [the defendant] on notice of the detail of the complaint and indicating that it may be necessary to apply for judicial review in the event that the [alternative] procedure does not provide a suitable remedy. If in those circumstances the [defendant] later sought to take a time bar point in any subsequent judicial review proceedings the … letter could be filed in the proceedings. The fact that the [defendant] were on notice of the detail of the complaint from the outset would be a significant factor of which the court could take account in exercising its discretion to extend time. This course would likely serve to protect the legal position of the [claimant]”); Singh v Public Service Commission [2019] UKPC 18 at §30 (defendant should have responded to preaction letter asking for a short extension, and “could have responded … by …, if necessary, 399

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offering to extend [the claimant’s] time for bringing an application for judicial review, so as to make it unnecessary for him to make a [permission] application at any earlier date”); R (Holdsworth) v Secretary of State for Justice [2019] EWHC 2079 (Admin) [2019] ACD 118 at §22 (Secretary of State writing to “confirm that I would not oppose any application for an extension of time for lodging your judicial review papers” if lodged within specified period of SC refusal/grant of permission in lead case), §46 (“An agreed extension of time would protect the claimant”); R (International Masters Publishers Ltd) v HMRC [2006] EWHC 127 (Admin) at §13 (claimant should have written asking commissioners whether they would agree not to take a delay point if a proposed judicial review awaited the outcome of the claimant’s related appeal); R v Borough of Milton Keynes, ex p Macklen 30 April 1996 unreported (Brooke J, discussing pre-action correspondence in the pre-CPR world: “If adopting such a course turns out to be unsuccessful then there would surely be little danger of the application for judicial review being turned down on the grounds of delay, because the [claimant] had followed the very desirable procedure of seeking to have the dispute resolved by other means”); {26.3.10} (extension of time: alternative solutions/pursuit of other avenues); {26.3.2} (no extension of time by agreement); R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 at §40 (referring to a ‘test case’ scenario where the parties “agreed to abide by whatever the … case decided”). 26.3.5 Extension of time: whether adequate explanation for delay/default. Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §38 (whether “an objectively good reason for the delay”); Riverside Truck Rental Ltd v Lancashire County Council [2020] EWHC 1018 (TCC) at §101(i) (“Whether there is a reasonable objective excuse for the claim having been commenced out of time”); R (Chief Constable of Northumbria) v Police Appeals Tribunal [2019] EWHC 3352 (Admin) at §66 (sensible steps taken); R v London Docklands Development Corporation, ex p Frost (1997) 73 P & CR 199, 210 (“No explanation, certainly no adequate explanation, has been advanced”); R v Criminal Injuries Compensation Board, ex p A [1998] QB 659 (CA), 682G (“Every [claimant] knows or must be taken to know that he or she must give an explanation for [the undue] delay if the application is not to be dismissed”) (HL is at [1999] 2 AC 330); R v Secretary of State for Trade and Industry, ex p Greenpeace [2000] Env LR 221, 261 (no reasonable objective excuse for applying late); R v Waveney District Council, ex p Bell [2001] Env LR 465 (no obligation in the circumstances to provide an explanation why grounds for judicial review not prepared earlier; readily understandable why took five weeks); cf Amey Highways Ltd v West Sussex County Council [2018] EWHC 1976 (TCC) [2019] PTSR 455 (good reason to extend time for challenge under public procurement regulations), §35 (no “necessary prerequisite” that “the claimant must show good reason for not issuing in time”, though “always likely to be an important consideration”). 26.3.6 Extension of time: nature/timing of claimant’s knowledge. {26.2.11} (running of time: relevance of claimant’s knowledge); R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin) at §74 (Warby J: “ignorance of the very fact of the impugned decision can be a good reason for extending time, and a late claim may be allowed to proceed if brought promptly after the claimant becomes aware of the decision”); R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 (claimant’s ignorance, and prompt action upon discovering the position, relevant to extension of time and grant of remedy despite five years’ delay); R (British Blind and Shutter Association) v Secretary of State for Housing Communities and Local Government [2019] EWHC 3162 (Admin) at §108 (extension of time because claimant not aware of effect of regulations); R (N) v A LBC [2010] EWHC 3602 (Admin) at §24 (“Those advising the claimant were … right not to issue proceedings until they had some basis for saying that what had happened at the meeting was a proper foundation for a judicial review challenge, and it is perfectly clear that as soon as the minutes were disclosed the issue of proceedings followed immediately”); R v Licensing Authority, ex p Novartis Pharmaceuticals Ltd [2000] COD 232 (good reason to extend time where claimant lacked essential information needed for purpose of knowing whether anything capable of being subject of judicial review; not a case where delaying in order to obtain more or better evidence to support case; not obliged to make improbable assumption as to facts, or to adopt a confrontational stance with government branch); R v Department of Transport, 400

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ex p Presvac Engineering Ltd (1992) 4 Admin LR 121 at 133H-134A (“the [claimant’s] subjective experience and state of knowledge … may … be relevant when the court comes to consider … [whether] ‘… the court considers that there is good reason for extending the period within which the application shall be made’”); R v SSHD, ex p Ruddock [1987] 1 WLR 1482, 1485F (“before the television programme, the [claimant] had and could have had no suspicion that a warrant to tap his phone might have been signed in 1983. I therefore think it is plain that on the question of delay, there was good reason for no application being made before March 1985”); R v Warwickshire County Council, ex p Collymore [1995] ELR 217, 228D (“Until the letter of 16 September 1993, the [claimant] cannot have been aware of the basis on which the refusal to grant her a discretionary award could have been attacked in judicial review proceedings”); R v London Borough of Redbridge, ex p G [1991] COD 398 (Court would readily have extended time in relation to period of ignorance of the policy); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 402H (delay no bar (to remedy) because “[i]t was not until earlier this year that material matters could be known to the [claimants]”); R v Milling (Medical Referee), ex p West Yorkshire Police Authority [1997] 8 Med LR 392, 395 (good reason for extending time where delay in the challenged certificate reaching the claimant was the fault of the Home Office, and where acted reasonably promptly thereafter); R v Cotswold District Council, ex p Barrington (1998) 75 P & CR 515 (ignorance of the decision not a good reason here, where aware of the scheme and should have enquired as to the decision); R v North West Leicestershire District Council, ex p Moses [2000] Env LR 443, 451-452 (ignorance not an excuse in the particular circumstances; absurd to allow a late challenge to a development by identifying an ignorant individual); R v Commissioners of Customs and Excise, ex p British Sky Broadcasting Plc 14 July 2000 unreported (Langley J: “knowledge or the lack of it are relevant to the discretion to extend time”); R (Young) v Oxford City Council [2002] EWCA Civ 990 [2002] 3 PLR 86 at §34 (claimant “was entitled first to seek information from the [defendant] as to the procedures which had been followed. He could not know whether he had an arguable case. Had an explanation demonstrating a correct procedure been provided, the application would probably not have been made, at any rate in its present form”). 26.3.7 Extension of time: presence/absence of prejudice, hardship and detriment. Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §38 (“questions of prejudice or detriment will often be highly relevant when determining whether to grant an extension of time to apply for judicial review”; relevance of “the presence or absence of prejudice or detriment to good administration”), §36 (“as a matter of principle, considerations of prejudice to others and detriment to good administration may, depending on the circumstances, be relevant to the determination of … whether there is good reason to extend time”); {26.4} (hardship, prejudice and detriment); R v Essex County Council, ex p C [1994] ELR 54 (Jowitt J), 56G-H (“The [defendants] have suffered no hardship from the delay, and it is right that the matter of principle should be decided”); R v Hammersmith and Fulham LBC, ex p Burkett [2001] Env LR 684 (CA) at §§25-26 (“prejudice” and “detriment to good administration” relevant to question of a “good reason” to extend time); R (Ford) v Press Complaints Commission [2001] EWHC 683 [2002] EMLR 95 at §46 (mere absence of prejudice not treated as a sufficient legal basis for extension of time). 26.3.8 Extension of time: sensible and reasonable behaviour (causing no prejudice). R v Commissioner for Local Administration, ex p Croydon LBC [1989] 1 All ER 1033, 1046g (Woolf LJ: “While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application and a litigant who does delay in making an application is always at risk, the [rules] are not intended to be applied in a technical manner. As long as no prejudice is caused … the courts will not rely on those provisions to deprive a litigant who has behaved sensibly and reasonably of [a remedy] to which he is otherwise entitled”), discussed in Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §29; R (Health & Safety Executive) v Wolverhampton City Council [2010] EWCA Civ 892 [2011] PTSR 645 at §35 (Sullivan LJ: “it was not in the least unreasonable for the HSE to explore with Wolverhampton whether there might be a solution that avoided litigation between two public bodies”); R v Council of the Society of Lloyds, ex p Johnson 401

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16 August 1996 unreported (tolerance described by Woolf LJ in Croydon only where no prejudice has been caused by the delay); R v Durham County Council, ex p Huddleston [2000] Env LR D20 (unfair to hold delay against claimant, where had acted reasonably in the light of defendant’s stance); R (Young) v Oxford City Council [2002] EWCA Civ 990 [2002] 3 PLR 86 at §33 (claimant “acted reasonably in the circumstances in seeking by his letters … further information before commencing proceedings”), §43 (“it is undesirable for a litigant to proceed blindly towards challenge of a decision in relation to which he suspects a fault or omission susceptible of review in a case where, for the purposes of clarification, he reasonably requires further information from the decision-making body so that he can consider in an informed manner whether proceedings are justified or worthwhile”); R v Commissioners of Customs and Excise, ex p British Sky Broadcasting Plc 14 July 2000 unreported (applying Croydon); R (Quintavalle) v Secretary of State for Health [2001] EWHC Admin 918 [2001] 4 All ER 1013 at §33 (reasonable behaviour). 26.3.9 Extension of time: ongoing sequence of decisions. R (Crompton) v South Yorkshire Police and Crime Commissioner [2017] EWHC 1349 (Admin) [2018] 1 WLR 131 at §107 (“on the facts of this case, where each of the decisions was a step along the path required by statute …, and where the [claimant] argues that a flawed approach … underlies all the decisions made, it is understandable that the [claimant] should wait until the final decision before launching proceedings. Those circumstances provide a good reason to extend time”); {26.2.15}-{26.2.19} (delay and ongoing/continuing matters). 26.3.10 Extension of time: alternative solutions/pursuit of other avenues.74 R (Archer) v HMRC [2019] EWCA Civ 1021 [2019] 1 WLR 6355 at §92 (Henderson LJ: “in a suitable context the courts are willing to adopt a flexible and pragmatic approach. … Where Parliament has provided a potential alternative remedy … the court will if necessary ensure that the [claimant] is not prejudiced by taking advantage of it”); R v Hammersmith and Fulham LBC, ex p Burkett [2001] Env LR 684 (CA) at §14 (“Judicial review is in principle a remedy of last resort. It follows, as it always does when a potential [claimant] for judicial review expeditiously seeks a reasonable way of resolving the issue without litigation, that the court will lean against penalising him for the passage of time and will where appropriate enlarge time if the alternative expedient fails”); R v University College London, ex p Ursula Riniker [1995] ELR 213, 215 (“the discretion to enlarge time … will be sympathetically approached by the court where the [claimant] in the meantime has not been sleeping on her rights but has been attempting to canvass them by other legitimate means”); R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935 [2002] 1 WLR 803 (judicial review should not have been pursued where complaints procedure available); R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319, 1323E-F (claimant was making an approach to the Secretary of State); R v Customs & Excise Commissioners, ex p Eurotunnel Plc [1995] CLC 392, 402D (“an attempt to resolve one’s problems by extra-judicial activity may amount to sensible and reasonable behaviour and give grounds for extending the period”); Catchpole v Buckinghamshire County Council [1998] ELR 463, 471E (“a complainant must first avail himself of any appropriate remedy made available by statute”); R v Education Committee of Blackpool Borough Council, ex p Taylor [1999] ELR 237, 240H (need for promptness even where exploring other avenues); {26.3.4} (extension of time: parties’ prior agreement ‘not to take a time point’ (‘shield letter’)). 26.3.11 Extension of time: ongoing communications with the defendant. {26.3.8} (sensible and reasonable behaviour, causing no prejudice); {26.3.4} (extension of time: parties’ prior agreement ‘not to take a time point’ (‘shield letter’)); R (British Aggregates Associates) v Her Majesty’s Treasury [2002] EWHC 926 (Admin) [2002] EuLR 394 at §155 (“The claimants have been far from idle. The long lead-in time has been used for substantial consultation and negotiation. … It is trite to observe that claimants cannot delay making claims merely because

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equivalent paragraph in a previous edition was relied on in Ming v COE [2012] BMSC 40 (Bermuda Supreme Court) at §40 (Kawaley CJ).

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they are seeking to persuade the decision-maker to change its mind. But such negotiations are a relevant factor”); R v London Borough of Harrow, ex p Carter (1994) 26 HLR 32 (good reason for extending time where during the delay the claimant had been in communication with the defendant (and another authority), during which there appeared to be some prospect that the matter would be resolved); R v Greenwich LBC, ex p Patterson (1994) 26 HLR 159, 167-168 (delay in circumstances when district judge had requested authority to reconsider the matter was “good reason”); R v Law Society, ex p First National Commercial Bank Plc [1996] COD 22 (attempt to negotiate a settlement arguably a good reason to extend time); R v Ministry of Agriculture Fisheries and Food, ex p Bostock [1991] 1 CMLR 687, 695 (“those advising the [claimant] here behaved in a perfectly proper and reasonable way allowing a reasonable time for the Minister to consider his position and, if he formed the view that he should take legislative action to implement the European regulations, to do so”); R v Department of Transport, ex p Presvac Engineering Ltd (1992) 4 Admin LR 121 (as to delay while adopting a conciliatory approach). 26.3.12 Extension of time: delay while exhausting alternative remedies.75 {26.3.8} (sensible and reasonable behaviour, causing no prejudice); R v Commissioners of Customs and Excise, ex p Greenwich Property Ltd [2001] EWHC Admin 230 [2001] STC 618 at §1 (good reason to extend time where pursuing an appeal, albeit misconceived); R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 at §78 (claimants “sensibly first pursued appeals to special adjudicators”); R (T) v A School [2002] EWCA Civ 1349 [2003] ELR 160 at §22 (sensible “to try the appellate process first” but wise “to give a clear indication straightaway that he also has a potential judicial review challenge”, so defendant “can decide what is the most sensible way forward”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1171B-C (appeal to an industrial tribunal); R v SSHD, ex p Oladehinde [1991] 1 AC 254 (pursuit of statutory appeal); R v Rochdale Metropolitan Borough Council, ex p Cromer Ring Mill Ltd [1982] 3 All ER 761, 764j (“wholly understandable” that claimants “sought to exhaust all possible remedies”); R v Essex County Council, ex p Jackson Projects Ltd [1995] COD 155 (permission refused for delay where claimant had initially decided to pursue compensation claim rather than challenge compulsory purchase order); R v London Borough of Redbridge, ex p G [1991] COD 398 (claimant not permitted to rely on fact that elected to seek to persuade by political means, rather than seeking legal remedy); R v London Borough of Bexley, ex p Barnehurst Golf Club Limited [1992] COD 382 (fact that claimant trying to use political means of redress first not a good reason for extending time); Din (Taj) v Wandsworth LBC [1983] 1 AC 657, 685E-F (suggesting that if appeal dismissed on ground that “the wrong procedure”, claimants would then succeed on judicial review). 26.3.13 Extension of time: awaiting a test case. R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 at §40 (referring to a ‘test case’ scenario where the parties “agreed to abide by whatever the … case decided”), referring to R v Hertfordshire County Council, ex p Cheung The Times 4 April 1986 (see transcript) (Sir John Donaldson MR: “if a test case is in progress in the public law court, others who are in a similar position to the parties should not be expected themselves to begin proceedings in order to protect their positions”; “it could be assumed that the result of the test case would be applied to them by the authorities concerned without the need for proceedings and that, if this did not in the event occur, the court would regard this as a complete justification for a late application for judicial review”), considered in R (Wilkinson) v Commissioners of Inland Revenue [2003] EWCA Civ 814 [2003] 1 WLR 2683 at §59. 26.3.14 Extension of time: delay in securing legal aid. AP v Tameside Metropolitan Borough Council [2017] EWHC 65 (QB) [2017] 1 WLR 2127 at §65 (King J: “delay in the grant of legal aid is not normally a factor which will persuade a court to extend the three-month issue

75The

equivalent paragraph in a previous edition was relied on in Opposition to Urban Tolling Alliance v South African National Roads Agency Ltd [2013] ZASCA 148 [2013] 4 All SA 639 (Supreme Court of Appeal of South Africa) at §29 (Brand JA).

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PARAMETERS OF JUDICIAL REVIEW

period for the purposes of a judicial review claim”), citing R (Kigen) v SSHD [2015] EWCA Civ 1286 [2016] 1 WLR 723 at §18 (Moore-Bick LJ: “it [is] no longer appropriate to treat delay in obtaining legal aid as a complete answer to a failure to comply with procedural requirements. It may still be a factor that can be taken into account … but no more”); A v Essex County Council [2010] UKSC 33 [2011] 1 AC 280 at §115 (Lady Hale: “Difficulties with funding are often regarded as a good reason to extend time unless there is real prejudice to the other side”); Al Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51 [2020] 1 WLR 1546 (considering “good reason” in Housing Act 1996 s.204) at §38 (difficulties in seeking legal aid a relevant factor); cf R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319, 1324A (legal aid delay “a perfectly legitimate excuse for delay”); R (Sacker) v HM Coroner for West Yorkshire [2003] EWCA Civ 217 [2003] 2 All ER 278 at §29 (applying Jackson) (HL is [2004] UKHL 11 [2004] 1 WLR 796); R (H) v London Borough of Brent [2002] EWHC 1105 (Admin) [2002] ELR 509 at §15 (delay in securing legal aid as a good reason); R v University of Portsmouth, ex p Lakareber [1999] ELR 135, 139G-140C (lack of evidence as to efforts being made, and where need for promptness obvious); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1157H, 1171B-C (referring to legal aid); R v Metropolitan Borough of Sandwell, ex p Cashmore (1993) 25 HLR 544 (delay in obtaining legal aid not normally a good reason); R v Governors of La Sainte Union Convent School, ex p T [1996] ELR 98, 99E (“legal aid history” going “a very great distance” in providing a good reason to extend time); In re Wilson [1985] AC 750, 755B (delays “no doubt  … occasioned by the necessity for obtaining legal aid”); R v Surrey Coroner, ex p Wright [1997] QB 786, 789H (“the delay is attributable to problems in obtaining legal aid for which no blame should be attributed to the [claimant]”); R v Leeds City Council, ex p N [1999] ELR 324, 334C-D (legal aid delays not treated as sufficient reason to extend time in a case where speed and need for early warning so important); R v Headteacher of Crug Glas School, ex p D [2000] ELR 69, 73B (need for utmost promptness where delay, once legal aid received). 26.3.15 Extension of time: the public interest. Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §38 (relevance of “the public interest”); Riverside Truck Rental Ltd v Lancashire County Council [2020] EWHC 1018 (TCC) at §101 (“Whether the public interest requires that the claim be allowed to proceed”); R v Secretary of State for Trade and Industry, ex p Greenpeace [2000] Env LR 221, 261-264 (“does the public interest require that the application should be permitted to proceed?”); R (Robertson) v City of Wakefield Metropolitan Council [2001] EWHC Admin 915 [2002] QB 1052 at §12 (“strong public interest in the matter receiving substantive judicial consideration”); R v Secretary of State for Trade and Industry, ex p Greenpeace [2000] Env LR 221, 263 (extension of time granted, despite some prejudice to third parties and detriment to good administration, on public interest grounds); R v Ministry of Agriculture, Fisheries and Food, ex p Dairy Trade Federation Limited [1998] EuLR 253, 262F (“there are circumstances in which the court will extend time for reasons of public policy”); In re Friends of the Earth and James Savage 1 December 1994 (application years out of time but in the public interest to extend time). 26.3.16 Extension of time: importance of the issues. Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §38 (relevance of “the importance of the issues”); R (Hughes) v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin) at §§99-101 (extension of time granted where “the claim raises issues of general importance, which are likely to arise in future cases”, the issues “could be raised in other, private law proceedings”, and “there is no prejudice”); R (Chief Constable of Northumbria) v Police Appeals Tribunal [2019] EWHC 3352 (Admin) at §67 (“a point of public importance”); R (Law Society) v Legal Services Commission [2010] EWHC 2550 (Admin) at §126 (“an exceptional case” where “the general importance of the issues constitutes a good reason to extend time”); Re S (Application for Judicial Review) [1998] 1 FLR 790, 795H (Butler-Sloss LJ: “The general importance of the matter raised in the application to move may, therefore, as a matter of public policy, constitute a good reason to extend time even though in most cases the delay would be a complete bar to granting [permission]. 404

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The issues raised must be genuinely of public importance and must be such that they can best be ventilated in the public law context. Such cases are likely to be exceptional”); R v North West Leicestershire District Council, ex p Moses [2000] Env LR 443, 452 (referring to “cases which recognise that the importance of the substantive issue raised is material to the exercise of the court’s discretion with regard to delay”); R v SSHD, ex p Ruddock [1987] 1 WLR 1482, 1485G (although “unimpressed by the reasons for [the delay]”: “since the matters raised are of general importance, it would be a wrong exercise of my discretion to reject the application on grounds of delay”); R v Department of Transport, ex p Presvac Engineering Ltd (1992) 4 Admin LR 121, 137A-B (asking “whether in the circumstances … there are good reasons for extending the time based on public policy”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 402H (“the general importance of the matter may itself be a reason for resolving the substantive issues, even where there has been delay”); R v Customs & Excise Commissioners, ex p Eurotunnel Plc [1995] CLC 392, 402C (Balcombe LJ: “the importance of the issues raised by an application can constitute a reason for extending the period”); R (Quintavalle) v Secretary of State for Health [2001] EWHC Admin 918 [2001] 4 All ER 1013 at §33 (points of general importance). 26.3.17 Extension of time: strength of the claim.76 Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §38 (relevance of “the prospects of success”); R (Deputy Chief Constable of Kent Police) v Chief Constable of Kent Police [2020] EWHC 2099 (Admin) at §166 (extension of time “informed by the merits of the claim”, found to be “well-founded” at rolled-up hearing); R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 at §21(4) (court may take into account that “strong case”); PJG v Child Support Agency [2006] EWHC 423 (Fam) [2006] 2 FLR 857 at §14 (extending time where miscarriage of justice conceded); R v Warwickshire County Council, ex p Collymore [1995] ELR 217, 228B-229E (unlawfulness of matter under challenge a good reason to extend time); R v SSHD, ex p Bina Rajendra Patel [1995] Imm AR 223, 227 (where good grounds for judicial review, reluctant at the hearing of the judicial review to refuse a remedy on grounds of delay, at least where no widespread effect on third parties); Selliah Arulanandam v SSHD [1996] Imm AR 587, 592 (in considering delay “it is appropriate also to have an eye to the general merits of the case”); Crest Homes {26.1.17}; R v Council for Licensed Conveyancers, ex p Bradford and Bingley Building Society [1999] COD 5 (where unjustifiable delay, good reason having to be supplied by analysis of merits of challenge; the better the prospects of success, the readier the court should be to extend time; even a substantial degree of merit would be appropriate basis of finding good reason); R (Ford) v Press Complaints Commission [2001] EWHC 683 [2002] EMLR 95 at §45 (arguability not a good reason to extend time, or delay rule would be otiose); cf Sayers v Clarke Walker (a firm) [2002] EWCA Civ 645 [2002] 1 WLR 3095 (regarding extension of time for appeal) at §34 (“In cases where the arguments for granting or refusing an extension of time were otherwise evenly balanced, a court will have to evaluate the merits”). 26.3.18 Extension of time: possibility of collateral challenge. {27.3.14} (procedural exclusivity: the ‘defendant exception’); R (British Waterways Board) v First Secretary of State [2006] EWHC 1019 (Admin) at §§16-17 (time extended for delayed judicial review where could have raised illegality as a defence to rates demand); R v Department of Trade and Industry, ex p Alba Radio Ltd 30 November 2000 unreported (extend time where challenge to Regulations could have been mounted in criminal proceedings and in appeal by case stated); R v Commissioners of Customs and Excise, ex p British Sky Broadcasting Plc 14 July 2000 unreported (good reason where important issues, no prejudice and risk of their being litigation in any event); cf R v Customs & Excise Commissioners, ex p Eurotunnel Plc [1995] CLC 392, 401C (fact that legality could be challenged collaterally not a reason for disapplying delay principles in judicial review). 76The

equivalent paragraph in a previous edition was relied on in R (Guinee) v Merthyr Tydfil Crown Court [2011] EWHC 2052 (Admin) at §26 (Beatson J).

405

PARAMETERS OF JUDICIAL REVIEW

26.3.19 Extension of time: other factors. R (QR (Pakistan)) v SSHD [2018] EWCA Civ 1413 at §§46-47 (extension of time granted where change in the law, and letter before claim written six weeks after relevant SC judgment, and solicitors had to take instructions from abroad); R (Castle) v Metropolitan Police Commissioner [2011] EWHC 2317 (Admin) [2012] 1 All ER 953 at §6 (no prejudice; claimants being minors with no access to legal advice until offered; important issues; defendant fully prepared to meet the claim); BR (Iran) v SSHD [2007] 1 WLR 2278 (considering the approach to delay and lawyer default in the asylum appeals context); R (British Beer and Pub Association) v Canterbury City Council [2005] EWHC 1318 (Admin) [2006] LGR 596 at §100 (conducting review to identify appropriate test cases); R v Warwickshire County Council, ex p Collymore [1995] ELR 217, 228G-229D (continuing policy and remedy prospective-only); R v London Borough of Newham, ex p Laronde (1995) 27 HLR 215, 226 (delay “in no way is down to the fault of the [claimant]”); R v London Borough of Newham, ex p Gentle (1994) 26 HLR 466 (delay fault of former solicitors and had caused no detriment); R v Tavistock General Commissioners, ex p Worth [1985] STC 564 (delay caused by non-legal adviser not a good reason); Birmingham City Council v Birmingham College of Food [1996] ELR 1, 36F-G (although incorporated, claimant having no assets under own control until “operative date”); R v Warrington Justices, ex p Shone (1996) 72 P & CR 7 (delay outweighed by hardship and prejudice to claimant in having to pay (or be committed for non-payment of) rates for which he was not liable); Sage v South Gloucestershire County Council [1998] ELR 525, 531A-B (claimant encouraged by defendant to pursue an application for a review, which “sent him off on the wrong horse”).

26.4 Hardship, prejudice and detriment. In any case of undue delay (lack of promptness or outside three months), a key justification for refusing (a) permission or (b) a remedy at the substantive hearing is the likelihood that granting judicial review would cause substantial hardship or prejudice to a person, or detriment to good administration. 26.4.1 Focus on hardship etc caused by the remedy, not by the delay. Senior Courts Act 1981 s.31(6) {26.1.1} (whether “the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration”); {26.1.13} (meaning of ‘undue delay’); R v Secretary of State for Health, ex p Furneaux [1994] 2 All ER 652 (no need for nexus between delay and hardship, prejudice or detriment); R v Ipswich Borough Council, ex p Bartlett [1997] COD 470 (Court entitled to take account of prejudice resulting from the delay). 26.4.2 Hardship/prejudice and third-party reliance. R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763, 782H-783A (“third parties have acted in reliance on the announcement”); R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415 (licensees had accepted the risks of the venture in question on the strength of what must have seemed a firm decision to grant licences); R v Secretary of State for Trade and Industry, ex p Greenpeace [2000] Env LR 221, 263 (extension of time granted on public interest grounds, although some prejudice to third parties); R v Bassetlaw District Council, ex p Oxby The Times 18 December 1997 (rejecting third-party prejudice arguments where unjust for third party to keep benefit of improperly granted planning consents); R v North West Leicestershire District Council, ex p Moses [2000] Env LR 443, 450 (third parties having incurred substantial expenditure in reliance on planning permission for runway); R v Licensing Authority, ex p Novartis Pharmaceuticals Ltd [2000] COD 232 (special need for utmost promptness where interfering with future acts of third parties; but extending time here where acts relied on were all in the past); R (Comninos) v Bedford Borough Council [2003] EWHC 121 (Admin) [2003] LGR 271 at §29 (delayed challenge to council’s decision to underwrite costs of officers’ libel proceedings, and substantial hardship to the officers); R v Hammersmith and Fulham LBC, ex p Burkett [2001] Env LR 684 (CA) at §28 (“the fact of expenditure may matter, though it is unlikely to be decisive, if the issue of time reaches the question of prejudice. But it does not … follow that the quantum of expenditure can by itself enhance this aspect of a [defendant]’s case”); R (Gavin) v Haringey LBC [2003] EWHC 2591 (Admin) [2004] 1 PLR 61 at §60 (“not unreasonable of [the developer] to carry on with the works even after the commencement of proceedings”), §61 (rejecting the submission 406

P26 DELAY

“that the costs incurred since … the date when the claim for judicial review was lodged should be left out of account”). 26.4.3 Detriment to good administration (DTGA)77: general. R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 at §21(7) (“The concept of detriment to good administration is not tightly defined, but will generally embrace the length of the delay in bringing the challenge, the effect of the impugned decision before the claim was issued, and the likely consequences of its being re-opened”); R (Patel) v General Medical Council [2013] EWCA Civ 327 [2013] 1 WLR 327 at §91 (CA “totally unpersuaded that there is potential for prejudice to good administration by the grant of relief in this case”); R v SSHD, ex p Oyeleye [1994] Imm AR 268 (DTGA needs more than inconvenience); R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 AC 738, 749F (not “wise to attempt to formulate any precise definition or description of what constitutes detriment to good administration”), 749G-750A (suggesting relevant factors); R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415 (detriment to good administration, in that pursuit of challenge now generating severe and undesirable uncertainty within relevant licensing scheme, and possibly other regimes); R (UNISON) v NHS Wiltshire Primary Care Trust [2012] EWHC 624 (Admin) [2012] ACD 84 at §51 (immense difficulties in tendering context); R v Governing Body of Gateway Primary School, ex p X [2001] ELR 321 at §44 (highly detrimental to allow claimant to jump the queue and increase a class size); R v Secretary of State for Education and Science, ex p Hardy (1989) 153 LG Rev 592 (local authority only having itself to blame where went ahead with scheme knowing that it was the subject of a judicial review challenge). 26.4.4 DTGA and caution: granting judicial review promotes good administration. R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 at §36 (here, “the interests of good administration … weighed compellingly in favour of the court having the opportunity to hear the claim and, if the claim succeeded, to deal with the council’s error”); R v Hammersmith and Fulham LBC, ex p Burkett [2001] Env LR 684 (CA) at §29 (“Administration beyond law is bad administration. The courts exist to protect the former as jealously as to stop the latter; but they cannot know which they are dealing with unless they can hear out and decide viable challenges to the legality of administrative acts. This cannot be regarded as a universal rule … but it heavily qualifies the availability of a ‘good administration’ answer to a plea of promptness or an application to enlarge time, and it is doubtless the reason why public authorities rarely consider it appropriate to use it”); R v Restormel Borough Council, ex p Corbett [2001] EWCA Civ 330 [2001] 1 PLR 108 at §32 (“If there are reasons for not interfering with an unlawful decision … they operate not in the interests of good administration but in defiance of it”); R (Lichfield Securities Ltd) v Lichfield District Council [2001] EWCA Civ 304 [2001] 3 PLR 33 at §39 (detriment to good administration as “a relatively unexplored ground”, partly because “it can come into play only … in practice, where the consequent hardship or prejudice to others is insufficient by itself to cause [a remedy] to be refused. In such a situation it can rarely, if ever, be in the interests of good administration to leave an abuse of public power uncorrected”); R (Gavin) v Haringey LBC [2003] EWHC 2591 (Admin) [2004] 1 PLR 61 at §82 (Lichfield to “be read not as precluding the refusal of relief on the ground of detriment to good administration, but as serving to emphasise the need for caution in deciding whether the grant of relief really would be detrimental to good administration and, if so, how much weight to attach to that detriment”), §84 (here, “a net detriment to good administration if the planning permission were quashed so long after it was granted”); R v Mid-Warwickshire Licensing Justices, ex p Patel [1994] COD 251 (advantageous to good administration for Court to remove the confusion).

77The equivalent paragraphs in a previous edition were relied on in R (Lichfield Securities Ltd) v Lichfield DC [2001] EWCA

Civ 304 [2001] 3 PLR 33 at §39 (Sedley LJ); R (Gavin) v Haringey [2003] EWHC 2591 (Admin) at §81 (Richards J); R (Hardy) v Pembrokeshire [2005] EWHC 1872 (Admin) [2006] Env LR 16 at §73 (Sullivan J); R (Raines) v Orange Grove [2006] EWHC 1887 (Admin) at §68 (Bennett J).

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26.4.5 DTGA: whether a need for evidence. R v Elmbridge Borough Council, ex p Health Care Corporation Ltd [1991] 3 PLR 63, 83F (“no evidence … of actual detriment to good administration other than the bare facts”, but court “entitled to take a broad view of this matter”); R v Middlesbrough Borough Council, ex p IJH Cameron (Holdings) Limited [1992] COD 247 (remedy would not have been refused on this ground, absent evidence of hardship, prejudice or detriment); R v Newbury District Council, ex p Chieveley Parish Council (1998) 10 Admin LR 676 (detriment to good administration inherent in late challenge to planning permission); R (Gavin) v Haringey LBC [2003] EWHC 2591 (Admin) [2004] 1 PLR 61 at §83 (detriment to good administration including developer and other third parties, where not capable of being identified or where not possible to prove specific hardship or prejudice). R v Law Society, ex p Vokes 18 February 1998 unreported (inherent detriment to good administration where delayed challenges to decision-making regarding payments from compensation fund). 26.4.6 Delay, good administration and a suitably tailored remedy. R v Warwickshire County Council, ex p Collymore [1995] ELR 217, 228G-229D (detriment to good administration met by flexibility as to remedy: treating unlawfulness of (continuing) policy as a reason to extend time, especially insofar as remedy sought is prospective); R (Gavin) v Haringey LBC [2003] EWHC 2591 (Admin) [2004] 1 PLR 61 at §91 (where undue delay in planning case, declaration granted but quashing order refused), §92 (“the outcome … that produces the lesser injustice”); R (Health & Safety Executive) v Wolverhampton City Council [2010] EWCA Civ 892 [2011] PTSR 645 at §§22, 33 (where part of development already completed, relief sought limited to requiring informed consideration of question whether to revoke planning position for remaining block). 26.4.7 Permission judge: leaving hardship, prejudice and detriment to the substantive hearing. R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319, 1325H (consideration of delay issues “may well necessitate (inter alia) some assessment of the substantial merits or otherwise of the [claimant]’s complaints and that this assessment can be made far more appropriately and satisfactorily on the hearing of the substantive application”), endorsed in R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 AC 738, 747D-E (“Questions of hardship or prejudice, or detriment” capable of arising “on a contested application for [permission] … but even then … it may be thought better to grant [permission] where there is considered to be good reason to extend the period under rule 4(1), leaving questions arising under section 31(6) to be explored in depth on the hearing of the substantive application”); R v Ministry of Agriculture Fisheries and Food, ex p Bostock [1991] 1 CMLR 687, 694 (“questions of good administration and prejudice to third parties are essentially matters for examination in depth at an inter partes hearing”); R v Ministry of Agriculture, Fisheries and Food, ex p Dairy Trade Federation Limited [1998] EuLR 253, 263F (would have left “questions arising under section 31(6) to be explored in depth on the hearing of the substantive application”); cf R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415 (permission refused where prejudice and detriment to good administration); R v Customs & Excise Commissioners, ex p Eurotunnel Plc [1995] CLC 392, 399G-400B (“exceptional” case, justifying resolution of these issues at permission stage).

408

P27 Public/private law.78 A judicial review claim holds ‘public functions’ accountable to ‘public law’ standards; it may be an abuse of process to try that other than by judicial review. 27.1 The public law/private law distinction 27.2 ‘Public law’ principles outside judicial review 27.3 ‘Procedural exclusivity’: abuse of process

27.1 The public law/private law distinction. The concept of ‘public law’ is inescapable. It is present in identifying: (1) the grounds (‘public law’ errors) on which it is in law appropriate for Courts to supervise action by public authorities; and (2) the authorities exercising functions (‘public’ functions) which are amenable to supervision by reference to those standards. The public/private distinction, and the public law/private law distinction, can be difficult to delineate and apply. It is always necessary to have in mind (i) why the question is being asked and (ii) what the consequences are of answering it one way or the other. 27.1.1 Recognising the development of ‘public law’. O’Reilly v Mackman [1983] 2 AC 237, 277B (Lord Diplock: “the appreciation of the distinction in substantive law between what is private law and what is public law has itself been a latecomer to the English legal system. It is a consequence of the development that has taken place in the last 30 years of the procedures available for judicial control of administrative action”); Davy v Spelthorne Borough Council [1984] AC 262, 276F (referring to the development of “a system of public law”); In re State of Norway’s Application [1987] QB 433, 475G-H (no “clear distinction between public and private law”, but “the division is beginning to be recognised”). 27.1.2 Reviewability/non-reviewability. {P34} 27.1.3 Public authority under the HRA. {9.4.3}-{9.4.5} 27.1.4 Recognising the public law/private law distinction. R (Hughes) v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin) at §98 (Lewis J: “In some cases …, both public law and private law rights arise out of the same set of facts”); Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin) [2020] 1 WLR 2355 at §29 (“In private law the individual has to be able to show that they have a legal right which has been infringed”; contrasting a claim “invoking the powers of the court to exercise its supervisory jurisdiction … to quash curb or correct decisions of bodies subject to public law”); Alves v Attorney General of the British Virgin Islands [2017] UKPC 42 at §35 (describing “the difference between a public duty owed to the public generally and a private duty incurred in the course of acting under statutory enabling”); R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7 [2015] AC 1547 at §71 (Lord Neuberger, describing a “public law right, derived from statute, for the public to go onto … land and … use it for recreational purposes”); R v Institute of Chartered Accountants of England and Wales, ex p Taher Nawaz [1997] PNLR 433, 442C (Sedley J: “the division between private and public law has no rationale beyond the procedural” and “there is a series of cases where [the] two have been found to coexist”); Attorney-General v Blake [2001] 1 AC 268 (distinguishing ‘public law’ claims, and ‘private law’ claims, for an injunction against a

78The

equivalent section in a previous edition was relied on in Anderson Asphalt Ltd v Secretary for Justice [2009] HKCFI 185 at §39 (Hon A Cheung J); United Reflexologists of Uganda Ltd v Minister of Health [2013] UGCOMMC 72 (High Court of Uganda) (Judge Kiryabwire).

PARAMETERS OF JUDICIAL REVIEW

former employee); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 845A (referring to “the new-found distinction between public and private law”), 848G-H (“if the duty is a public duty, then the body in question is subject to public law”); R v Fernhill Manor School, ex p A [1994] ELR 67, 79F (“the law as it stands now makes a clear distinction between public law cases and private law cases”); Credit Suisse v Allerdale Borough Council [1997] QB 306 (no discretion to refuse remedy where contract found to be ultra vires in ‘private law’ and so unenforceable); {45.2.2} (public law error/public law wrong). 27.1.5 Approach to the public law/private law distinction. Fun World Co Ltd v Municipal Council of Quatre Bornes [2009] UKPC 8 at §26 (“the distinction between public and private law issues under English RSC Order 53 was never rigid”); R (Valentines Homes & Construction Ltd) v HMRC [2010] EWCA Civ 345 at §31 (Pill LJ, describing “the importance of retaining flexibility and pragmatism in the distinction between public and private law”); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §78 (Lord Hoffmann, referring to English law’s “lack of a clear distinction between public and private law”); McClaren v Home Office [1990] ICR 824, 829F-G (referring to the “cases where it is not immediately clear whether the rights which the plaintiff claims and which he claims have been infringed by a public authority, are truly to be classified as rights under public law or rights under private law”); Lonrho Plc v Tebbit [1992] 4 All ER 280, 288h (Kerr LJ: “our law … has already suffered too much from the undesirable complexities of this overlegalistic procedural dichotomy”); Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840, 842G (“despite the hopes to the contrary, a very substantial volume of the resources of the parties and the courts are still being consumed to little or no purpose over largely tactical issues as to whether the correct procedure has been adopted”), 848A (“this constant unprofitable litigation over the divide between public and private law proceedings”), 849B-C (“increasingly complex and technical”); Andreou v Institute of Chartered Accountants of England and Wales [1998] 1 All ER 14, 19g (“a subject which regrettably has become highly arbitrary”); An Bord Bainne Co-operative Ltd v Milk Marketing Board [1984] 2 CMLR 584, 589 (a milk marketing case in which public and private law issues were “homogenised”); Roy v Kensington & Chelsea & Westminster Family Practitioner Committee [1992] 1 AC 624 (bundle of private and public law rights).

27.2 ‘Public law’ principles outside judicial review. Those ‘public law’ principles which govern the Court’s supervisory jurisdiction over public authorities by way of judicial review may frequently be found deployed (and developed) in other forms of legal proceedings. Many of these are by their nature ‘public law’ proceedings (eg statutory review, statutory appeal or habeas corpus). Others are ‘claim form’ proceedings against public authorities; or defending civil or criminal proceedings brought by public authorities. Others may be ‘private law’ proceedings involving no ‘public function’, but where the principles found in ‘public law’ have a role to play. Conversely, issues arising for determination in judicial review cases can involve questions of ‘private law’. 27.2.1 Other similar supervisory jurisdictions. {2.5} 27.2.2 Public law principles: habeas corpus. See eg R v Governor of Brixton Prison, ex p Armah [1968] AC 192 (error of law); R v Governor of Pentonville Prison, ex p Alves [1993] AC 284 (misdirection in law/unreasonableness); Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (precedent fact). 27.2.3 HRA claim form action. {9.4.6} (proceedings alleging s.6 breach: HRA s.7). 27.2.4 Remedies which may (but need not) be sought by judicial review. {42.1.2} (CPR 54-permitted remedies: declaration, injunction, damages, restitution, sum due). 27.2.5 Public law principles: defending proceedings. {27.3.14} (procedural exclusivity: the ‘defendant exception’). 410

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27.2.6 Public law principles: claim form actions against public authorities. Ogunsanya v General Medical Council [2020] EWHC 1500 (QB) (CPR Part 8 claim for declaration as to scope of investigative power); Snelling v Burstow Parish Council [2013] EWCA Civ 1411 [2014] 1 WLR 2388 (claim form action for declaration that no power to sell allotment land); British Pregnancy Advisory Service v Secretary of State for Health [2011] EWHC 235 (Admin) [2012] 1 WLR 580 (question of statutory interpretation as to Abortion Act); London Borough of Islington v Camp (1999) [2004] LGR 58 (action by claim form for a declaration, in circumstances where a decision either way likely to give rise to judicial review); CF v SSHD [2004] EWHC 111 (Fam) [2004] 1 FCR 577 at §25 (“choice of forum or of remedy cannot affect substantive law”); Vine v National Dock Labour Board [1957] AC 488 (delegation of power); Ceylon University v Fernando [1960] 1 WLR 223 (natural justice); Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 (vires of planning refusal/conditions); Kanda v Government of Malaya [1962] AC 322 (ultra vires/natural justice); Ridge v Baldwin [1964] AC 40 (natural justice); Pfizer Corporation v Ministry of Health [1965] AC 512 (ultra vires); Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735 (ultra vires/unreasonableness); Wiseman v Borneman [1971] AC 297 (natural justice); Pearlberg v Varty [1972] 1 WLR 534 (natural justice); Daymond v Plymouth City Council [1976] AC 609 (delegated legislation); Grunwick Processing Laboratories Ltd v Advisory Conciliation & Arbitration Service [1978] AC 655 (ultra vires); Engineers & Managers Association v Advisory Conciliation & Arbitration Service [1980] 1 WLR 302 (ultra vires); Calvin v Carr [1980] AC 574 (natural justice); United Kingdom Association of Professional Engineers v Advisory Conciliation & Arbitration Service [1981] AC 424 (irrationality); Din (Taj) v Wandsworth LBC [1983] 1 AC 657 (error of law); Cheall v Association of Professional Executive Clerical & Computer Staff [1983] 2 AC 180 (natural justice); Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 (vires of airport charges). 27.2.7 Public law principles: defending proceedings. {27.3.14} (procedural exclusivity: the ‘defendant exception’). 27.2.8 Public law principles in criminal proceedings. R v Adams [2020] UKSC 19 [2020] 1 WLR 2077 (delegability and the Carltona principle); Rogers v Essex County Council [1987] AC 66 (illegality); R v Gough [1993] AC 646 (bias); Boddington v British Transport Police [1999] 2 AC 143 (questions of vires entitled to be raised by criminal defendant); R v Latif [1996] 1 WLR 104, 111B-113D (relying on the principle in R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42 in a criminal appeal); D’Souza v DPP [1992] 1 WLR 1073 (lawfulness of entry by force decisive on prosecution for assault). 27.2.9 ‘Public law’ unlawfulness as a defence to claim in contract against public authority. School Facility Management Ltd v Governing Body of Christ the King College [2020] EWHC 1118 (Comm) at §§116, 162; Credit Suisse v Allerdale Borough Council [1997] QB 306; National Transport Cooperative Society Ltd v Attorney General of Jamaica [2009] UKPC 48; Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA Civ 678 [2010] IRLR 786 at §5 (public body pleading own irrationality to seek to escape contractual obligation). 27.2.10 ‘Public law’ principles in contract claims/claims against ‘private bodies’. {7.7.9} (procedural fairness applicable by contract/to private bodies/functions); {7.8.4} (basic reasonableness applicable to private bodies/functions); New Saints FC Ltd v Football Association of Wales Ltd [2020] EWHC 1838 (Ch) at §40 (applying “public law” standards of lawfulness, reasonableness and fairness, in contract-based claim); R (AW) v St George’s, University of London [2020] EWHC 1647 (Admin) at §§68, 78 (contract between University and student including implied duty to act fairly, duty of adherence to policy and duty to act in accordance with regulations); Williamson v Formby [2019] EWHC 2639 (QB) at §62 (Labour Party acted unfairly in action against MP), §26 (court having supervisory function); Rashid v Oil Companies International Marine Forum [2019] EWHC 2239 (QB) at §74 (private law claim against domestic body involves “supervisory jurisdiction” where “the essential concern” is “whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker and 411

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so forth”); Dymoke v Association for Dance Movement Psychotherapy UK Ltd [2019] EWHC 94 (QB) at §60 (implied contract terms as to lawfulness, reasonableness and fairness, referring to Braganza v BP Shipping Ltd [2015] UKSC 17 [2015] 1 WLR 1661); Khaira v Shergill [2014] UKSC 33 [2015] AC 359 at §58; Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302 (ultra vires challenge by private law action); {9.1.7} (HRA positive obligations/ horizontal effect); Bradley v Jockey Club [2005] EWCA Civ 1056 at §§17-18 (supervisory jurisdiction applicable to Jockey Club); R v Association of British Travel Agents, ex p Sunspell Ltd [2001] ACD 88 at §22 (proportionality of sanction capable of being an implied contract term); {25.3.3} (damages: the logic of public law standards applicable via contract). 27.2.11 ‘Public law’ principles in other proceedings. Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16 [2018] ICR 705 at §22 (“range of reasonable responses” principle applicable to unfair dismissal); Halliburton Co v Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817 [2018] 1 WLR 3361 (apparent bias principle applicable to arbitrator); Braganza v BP Shipping Ltd [2015] UKSC 17 [2015] 1 WLR 1661 at §§30, 53, 103 (Wednesbury principles applicable to discretion in a contract); Department for Children, Schools and Families v Molyneux [2012] EWCA Civ 193 at §21 (principles applicable to a trustee making a decision under a pension scheme governed by a trust deed), §23 (equivalent duties owed by Secretary of State when administering Teachers’ Pension Scheme); Re Golden Chemicals Ltd [1976] Ch 300 (principles of delegation in insolvency proceedings); Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705, 715-716a (abuse of power in charity proceedings); Paragon Finance Plc v Nash [2001] EWCA Civ 1466 [2002] 1 WLR 685 at §38 (Wednesbury test relevant where contract conferring a discretion); Thomas v University of Bradford (No 2) [1992] 1 All ER 964, 976d-f (judicial review grounds applied in visitorial proceedings); Rees v Crane [1994] 2 AC 173 (public law principles in constitutional motion case); In re McC (A Minor) [1985] AC 528 (jurisdictional error relevant to action for damages against magistrates); Hayes v Chief Constable of Merseyside [2011] EWCA Civ 911 [2012] 1 WLR 517 at §13 (Wednesbury test applicable to claim for unlawful arrest). 27.2.12 ‘Private law’ issues determined in judicial review proceedings. R (Ingenious Media Holdings plc) v HMRC [2016] UKSC 54 [2016] 1 WLR 4164 at §14 (judicial review granted where Revenue acting in breach of common law duty of confidentiality); R (Ford) v Financial Services Authority [2011] EWHC 2583 (Admin) [2012] 1 All ER 1238 (joint-interest legal privilege); R (Smith) v Land Registry (Peterborough) [2010] EWCA Civ 200 [2011] QB 413 (whether title acquired by adverse possession); R (Balding) v Secretary of State for Work and Pensions [2007] EWCA Civ 1327 [2008] 1 WLR 564 (meaning of “bankruptcy debt”); R v Investors Compensation Scheme Ltd, ex p Weyell [1994] QB 749 (approach to compensatable default by financial adviser).

27.3 ‘Procedural exclusivity’: abuse of process.79 A necessary feature of public law is to provide an answer to the question whether a decision or action of a body ‘can’ be judicially reviewed under CPR Part 54 (reviewability). But it does not follow that such a body ‘can only’ (and so ‘must’) be challenged by judicial review (exclusivity). Certain remedies (quashing, mandatory and prohibiting orders) are prescribed as ‘exclusive’ to Part 54; others (declaration, injunction, monetary remedies) are not. A challenge which could have been pursued by judicial review, but has been raised in other proceedings, may in a clear case be dismissed as an ‘abuse of process’, especially where it circumvents the protections of judicial review. Arid debates about forum are discouraged and powers of transfer are available where appropriate. 27.3.1 Reviewability/non-reviewability. {P34}

79The

equivalent paragraph in a previous edition was relied on in Tsang Kin Chiu v Police Commissioner [2015] HKCFI 1183 at §19 (Hon Au J).

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27.3.2 Remedies for which CPR 54 must be used. {24.1.1} (CPR 54-exclusive remedies: mandatory, prohibiting, quashing orders). 27.3.3 Remedies for which CPR 54 may be used. {24.1.2} (CPR 54-permitted remedies: declaration, injunction, damages, restitution, sum due). 27.3.4 Procedural exclusivity principle in a nutshell. Attorney General of Trinidad and Tobago v Dumas [2017] UKPC 12 [2017] 1 WLR 1978 at §24 (“requiring all applications for redress for the infringement of rights protected by public law to take the form of an application for judicial review … has been the general rule in English law since 1982”); Richards v Worcestershire County Council [2017] EWCA Civ 1998 [2018] PTSR 1563 at §65(i) (Rupert Jackson LJ: “The exclusivity principle applies where the claimant is challenging a public law decision or action and (a) his claim affects the public generally or (b) justice requires for some other reason that the claimant should proceed by way of judicial review”). 27.3.5 Claim ‘evading’ CPR 54 protections may be an abuse of process. Attorney General v Isaac [2018] UKPC 11 at §31 (Lady Black, describing the principle in O’Reilly v Mackman [1983] 2 AC 237, 285E per Lord Diplock, which “established that, as a general rule, in English law, it would be contrary to public policy and an abuse of the process of the court for a plaintiff complaining of a public authority’s infringement of his public law rights to seek redress by ordinary action, such as an application for a declaration, rather than by way of judicial review, thus evading the provisions of Order 53 of the Rules of the Supreme Court, including the need to obtain permission for the bringing of the claim, which were there to protect such public authorities”); Cocks v Thanet District Council [1983] 2 AC 286, 295C (abuse or process where “no valid reason” for proceeding otherwise than by judicial review). 27.3.6 Whether claim an ‘abuse of process’ because CPR 54 not used. MCX Dunlin (UK) Ltd v HMRC [2020] EWHC 11 (Ch) at §§59-60 (CPR Part 8 claim for declaration of entitlement to interest on repaid tax, resolving dispute as to meaning and effect of tax statute, not an abuse of process); Ogunsanya v General Medical Council [2020] EWHC 1500 (QB) at §35 (Part 8 claim for a declaration not an abuse of process, where commenced promptly); Knibbs v HMRC [2019] EWCA Civ 1719 [2020] 1 WLR 731 at §25 (“the correct procedure … to challenge the amendments made to [tax] returns was by judicial review, and not by ordinary civil proceedings”, because “no private law rights involved”, “time limits”, numbers affected, no factual dispute and permission filter); Secretary of State for Transport v Arriva Rail East Midlands Ltd [2019] EWCA Civ 2259 [2020] 3 All ER 948 at §109 (suggesting that “a claim for an injunction which seeks to set aside the underlying public law decision” commenced outside three months may be an abuse), §108 (as to “whether or not they are an abuse of the process, what matters is ‘all the circumstances’ of the case. The CPR allow the court to be flexible”); Murphy v Electoral Commission [2019] EWHC 2762 (QB) [2020] 1 WLR 480 at §§56-57 (abuse of process because any challenge should have been by judicial review); P v Home Office [2017] EWHC 663 (QB) [2017] 1 WLR 3189 at §41 (Judge Parkes QC, asking: “whether in all the circumstances, including the delay in initiating the proceedings, there has been an abuse of the process of the court. Have the protections afforded by CPR Part 54 been flouted in a way inconsistent with proceedings being able to be conducted justly in accordance with the overriding objective?”); Trim v North Dorset District Council [2010] EWCA Civ 1446 [2011] 1 WLR 1901 (Part 8 claim struck out as an abuse of process, because “purely public act” by planning authority should have been challenged promptly by judicial review), §26 (there was a “strong public interest in its validity, if in issue, being established promptly”); Milebush Properties Ltd v Tameside Metropolitan Borough Council [2011] EWCA Civ 270 [2011] PTSR 1654 at §§48-49, 95 (proper interpretation of s.106 planning agreement “public law planning matters” to be decided in judicial review proceedings to which the planning and enforcement authority is a party, not by private law action against the party said to be obliged by the agreement to grant a right of way); Bahamas Telecommunications Company Ltd v Public Utilities Commission [2008] UKPC 10 at §25 (claim for declaration of licensing entitlements struck out because should have been a prompt judicial review or statutory appeal and delay was prejudicial); R (Jones) v Powys Local Health Board [2008] EWHC 2562 (Admin) (2009) 12 CCLR 68 at §39 (abuse of process to proceed by writ where dominant 413

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issue concerning panel’s care assessment and defendant deprived of protection of permission stage); Stancliffe Stone Co Ltd v Peak District National Park Authority [2005] EWCA Civ 747 [2006] Env LR 158 at §54 (inapt “attempt to challenge in a private law action for declaratory relief matters solely of public law which ought more properly to have been raised (if at all) by action for judicial review”); Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at §39 (“What is likely to be important … will not be whether the right procedure has been adopted but whether the protection provided by Order 53 has been flouted in circumstances which are inconsistent with the proceedings being able to be conducted justly”), §17; Mann Singh Shingara v SSHD [1999] Imm AR 257, 266 (“it would be an abuse of process to bring private law proceedings”, being “so long out of time for challenging the … decision”); O’Reilly v Mackman [1983] 2 AC 237 (the origin of procedural exclusivity), 285H (claims characterised as “blatant attempts to avoid the protections for the defendants for which Order 53 provides”). 27.3.7 Similar abuse of process: other public law process unused. T & P Estates Ltd v Sutton LBC [2020] EWHC 879 (Ch) at §§26-28, 46 (CPR Part 8 claim an abuse of process where planning appeal available and pursued); Knibbs v HMRC [2019] EWCA Civ 1719 [2020] 1 WLR 731 at §17 (“if Parliament has laid down a statutory appeal process against a decision of HMRC, a person aggrieved by the decision and wishing to challenge it must use the statutory process. It is an abuse of the court’s process to seek to do so through proceedings in the High Court or the County Court”), citing Autologic Holdings Plc v IRC [2005] UKHL 54 [2006] 1 AC 118 at §§12-13. 27.3.8 Procedural exclusivity: the interests of justice. Arkin v Marshall [2020] EWCA Civ 620 [2020] 1 WLR 3284 at §15 (“there are circumstances in which considerations of justice and pragmatism may make it appropriate for a public law challenge … to be determined in the context of private law proceedings”); Richards v Worcestershire County Council [2017] EWCA Civ 1998 [2018] PTSR 1563 at §67 (“Justice does not require … that the claimant should proceed by way of judicial review. If the exclusivity principle is allowed to block this claim, it will become an instrument of injustice”). 27.3.9 Procedural exclusivity: onus on the objector. Davy v Spelthorne Borough Council [1984] AC 262, 278F (Lord Wilberforce: “prima facie the rule applies that the plaintiff may choose the court and the procedure which suits him best. The onus lies upon the defendant to show that in doing so he is abusing the court’s procedure”); R v East Berkshire Health Authority, ex p Walsh [1985] QB 152, 173G (“A party inviting the court to take this draconian step assumes a heavy burden”). 27.3.10 Procedural exclusivity: legitimate private law/damages claim. Secretary of State for Transport v Arriva Rail East Midlands Ltd [2019] EWCA Civ 2259 [2020] 3 All ER 948 at §71 (Coulson LJ: “a private law claim for damages arising out of the decision of a public body or authority will not automatically be categorised as a ‘purely public law act’ … in order to activate the vastly truncated limitation period applicable to judicial review”), §78 (“a claim for damages … is not a public law challenge which necessitates the commencement of judicial review proceedings”); Allen v HM Treasury [2019] EWHC 1010 (Ch) at §30 (no abuse of process where “in form and in substance, a claim for damages alone”); BES Commercial Electricity Ltd v Cheshire West and Chester Borough Council [2019] EWHC 748 (QB) (HRA claim alleging warrants had been unlawful properly pursued by QB claim form action); Richards v Worcestershire County Council [2017] EWCA Civ 1998 [2018] PTSR 1563 at §65(ii) (Rupert Jackson LJ: “The exclusivity principle … should not become a general barrier to citizens bringing private law claims, in which the breach of a public duty is one ingredient”), §67 (“This is a private law claim. … It has no wider public impact. Justice does not require for any other reason that the claimant should proceed by way of judicial review. If the exclusivity principle is allowed to block this claim, it will become an instrument of injustice”); Alves v Attorney General of the British Virgin Islands [2017] UKPC 42 at §36 (describing private law actionable duties, which arise in the course of performing public functions, as not needing a much-abbreviated limitation period); Ruddy v Chief Constable 414

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Strathclyde Police [2012] UKSC 57 [2013] SLT 119 at §17; Phonographic Performance Ltd v Department of Trade and Industry [2004] EWHC 1795 (Ch) (not an abuse of process to bring Francovich reparation claim for non-implementation of EU Directive by ordinary claim form action), §49 (“essentially private law proceedings which can and prima facie should be brought by an ordinary claim”); D v Home Office [2005] EWCA Civ 38 [2006] 1 WLR 1003 at §105 (false-imprisonment damages could be claimed in the county court and did not need to be by judicial review only). 27.3.11 Procedural exclusivity: procedural flexibility/avoiding barren procedural dispute. Ogunsanya v General Medical Council [2020] EWHC 1500 (QB) at §35 (Eady J: “Keeping in mind the overriding objective, it does not seem to me to be particularly helpful to focus on this procedural dispute”); P v Home Office [2017] EWHC 663 (QB) [2017] 1 WLR 3189 at §41 (Judge Parkes QC, avoiding “a rigidity of approach which is not generally consistent with the advent of the CPR”); Mercury Communications Ltd v Director General of Telecommunications [1996] 1 WLR 48, 57D-E (Lord Slynn: “some flexibility as to the use of different procedures is necessary. It has to be borne in mind that the overriding question is whether the proceedings constitute an abuse of the process of the court”); Roy v Kensington & Chelsea & Westminster Family Practitioner Committee [1992] 1 AC 624, 655A (Lord Lowry: “unless the procedure adopted by the moving party is ill suited to dispose of the question at issue, there is much to be said in favour of the proposition that a court having jurisdiction ought to let a case be heard rather than entertain a debate concerning the form of the proceedings”); Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840 at 849D-E (need to consider “the practical consequences of the choice of procedure which has been made” and whether the choice has any “significant disadvantages for the parties, the public or the court”); British Steel Plc v Commissioners for Customs & Excise [1997] 2 All ER 366 (Saville LJ, commenting on the need to “avoid this form of satellite litigation, while safeguarding both the private rights of individuals and companies and the position and responsibilities of public authorities”); R (Garbet) v Circle 33 Housing Trust [2009] EWHC 3153 (Admin) at §89 (where breach of duty to consult sheltered accommodation resident, arising from tenancy agreement, Court granting the declaration that would have been granted in private proceedings; not necessary therefore to consider further whether “public law claim” or “private law claim”); In re appeals by Governing Body of JFS [2009] UKSC 1 [2009] 1 WLR 2353 at §23 (issue arising collaterally; declaration granted against Legal Services Commission; not necessary to commence fresh judicial review proceedings); R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366 [2002] 2 All ER 936 at §38 (referring to “the old demarcation disputes as to when judicial review was or was not appropriate under Order 53. Part 54 CPR is intended to avoid any such disputes which are wholly unproductive”); Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at §37 (Lord Woolf MR: “The intention of the CPR is to harmonise procedures as far as possible and to avoid barren procedural disputes which generate satellite litigation”). 27.3.12 Powers of transfer. {19.2.28} (claim transferred into the Administrative Court as judicial review); {21.5.30} (direction for transfer out of the Administrative Court); Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840 at 848F-G (“the court can protect its resources either by directing that the application should continue as if begun by [ordinary action] or by directing it should be heard by a judge who is not nominated to hear cases in the [Administrative Court]”), 848H-849B (“in cases where it is unclear whether proceedings have been correctly brought by an ordinary action it should be remembered that … a case can always be transferred to the [Administrative Court] as an alternative to being struck out”), 849D-E (need to consider “the practical consequences of the choice of procedure which has been made” and whether the choice has any “significant disadvantages for the parties, the public or the court”); R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366 [2002] 2 All ER 936 at §39 (“the CPR provides a framework which is sufficiently flexible to enable all the issues between the parties to be determined. … In view of a possibility of a misunderstanding as to the scope of judicial review we draw attention to this and the powers of transfer under Part 54”). 415

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27.3.13 Procedural exclusivity: no ‘condition precedent’ principle. Secretary of State for Transport v Arriva Rail East Midlands Ltd [2019] EWCA Civ 2259 [2020] 3 All ER 948 at §98 (Coulson LJ: “procedural exclusivity ‘does not apply in a civil case when an individual seeks to establish private law rights which cannot be determined without an examination of the validity of a public law decision’”, citing Boddington v British Transport Police [1999] 2 AC 143, 172G-H); Delaney v Secretary of State for Transport [2015] 1 WLR 5177 at §6; Ruddy v Chief Constable Strathclyde Police [2012] UKSC 57 [2013] SLT 119 at §17; Andreou v Institute of Chartered Accountants of England and Wales [1998] 1 All ER 14, 21e (“appropriate to proceed in a private law action even though there is a public law issue to be determined as long as there is a private law right which is clearly identified which has also to be determined”). The history was Cocks v Thanet District Council [1983] 2 AC 286, 294E (Lord Bridge, describing the exclusivity principle as applicable in cases where claimant’s failure to overturn a “decision of the public authority … prevents him establishing a necessary condition precedent to the statutory private law right which he seeks to enforce”), 293B (where successfully impugning a “public law decision … is a condition precedent to the establishment of the private law duty”); Roy v Kensington & Chelsea & Westminster Family Practitioner Committee [1992] 1 AC 624, 653B-D (not applying Cocks); Stovin v Wise [1996] AC 923 (damages action for non-exercise of statutory powers); Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840, 847H-848A (the law “has moved on from Cocks”); Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at §16 (recognising the difficulties which had been created by Cocks). 27.3.14 Procedural exclusivity: the ‘defendant exception’. McDonald v McDonald [2016] UKSC 28 [2017] AC 273 at §64 (“it is open to a tenant to defend possession proceedings on the ground that the [public] authority [landlord] has acted unlawfully”), referring to Wandsworth LBC v Winder [1985] AC 461 at 509E-510A; R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §70 (Lord Dyson: “It is well established that a defendant can rely on a public law error as a defence to civil proceedings and that he does not need to obtain judicial review as a condition for defending the proceedings. … The same applies in the context of criminal proceedings”); Sunman v Environment Agency [2019] EWHC 3564 (Admin) [2020] 1 WLR 1024 at §§25, 27 (open to defendant to challenge whether registration fee, reflected in compensation order following guilty plea to keeping an unregistered vessel, lawfully due); Davies v Hertfordshire County Council [2018] EWCA Civ 379 [2018] 1 WLR 4609 (defendant to possession action entitled to raise breach of duty under Children Act 2004 s.11); Akerman v Richmond upon Thames LBC [2017] EWHC 84 (Admin) [2017] PTSR 351 at §15 (by-laws challenged on public law grounds, in defending prosecution for breaching them); Jones v Canal and River Trust [2017] EWCA Civ 135 [2018] QB 305 (boat owner able to raise ECHR arguments in defending waterways authority’s claim for injunction and declaration); Trim v North Dorset District Council [2010] EWCA Civ 1446 [2011] 1 WLR 1901 at §28 (discussing the defendant exception); Kay v Lambeth LBC [2006] UKHL 10 [2006] 2 AC 465 at §60 (affirming Winder principle); Boddington v British Transport Police [1999] 2 AC 143 (raising by way of defence the legal validity of an instrument under which prosecuted); Credit Suisse v Allerdale Borough Council [1997] QB 306 (raising ultra vires of contract as defence to action to enforce it); Hounslow LBC v Powell [2011] UKSC 8 [2011] 2 AC 186 (Art 8 claim raised as defence to possession proceedings); R v Inland Revenue Commissioners, ex p TC Coombs & Co [1991] 2 AC 283, 304C (“challenging … the validity of the notice by way of defence to penalty proceedings”); R v Secretary of State for Transport, ex p Factortame Ltd [1990] 2 AC 85, 142B-C (raising EU-incompatibility as criminal defence). 27.3.15 ‘Defendant exception’ unavailable: issue not arising under statutory scheme. Beadle v HMRC [2020] EWCA Civ 562 at §§44, 48 (statutory scheme, by “clear and necessary implication”, not allowing legality of notice to be raised in enforcement proceedings); Stannard v CPS [2019] EWHC 84 (Admin) [2019] 1 WLR 3229 (on true construction of the legislation, Parliament did not intend invalidity of community protection notice to be a defence to criminal charge of failure to comply); R (PML Accounting Ltd) v HMRC [2018] EWCA Civ 2231 [2019] 1 WLR 2428 at §43 (distinguishing situation where collateral challenge following previous formal determination); R v Wicks [1998] AC 92 (criminal planning enforcement 416

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context where not possible to raise as defence procedural impropriety in decision to issue the notice); Dill v Secretary of State for Communities and Local Government [2020] UKSC 20 [2020] 1 WLR 2206 (under statutory scheme, open in defending listed building enforcement action to challenge the decision as to protected status). 27.3.16 Whether in substance a judicial review claim. Attorney General v Isaac [2018] UKPC 11 (whether fixed-date claim issued against public authority for declarations and damages constituting “judicial review” requiring permission under the Eastern Caribbean CPR), §34 (“the presence or absence of a claim for a prerogative remedy will always be important” but “in some cases it may be necessary to look carefully at the substance of the application”), §35 (“in those cases where more rigorous scrutiny is required, going behind the form of the application and probing its substance, an analysis of what remedies the claimant is, in reality, pursuing will still play an important part in the exercise”). 27.3.17 Whether judicial review is itself an abuse of process. {34.4} (‘non-reviewable’ public functions); {34.5} (private law matters); {22.1.15} (application for strike out/ dismissal); {21.1.27} (fresh permission application); R (Valentines Homes & Construction Ltd) v HMRC [2010] EWCA Civ 345 at §32 (not an abuse of process to bring judicial review rather than raise public law issues as a defence to tax debt proceedings); {2.1.34} (whether a special approach to issue estoppel/res judicata/abuse of process).

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P28 Ouster. Complete statutory ouster of judicial review is constitutionally dubious; but statutory controls and time-limit ousters, consistent with the rule of law, are effective. 28.1 Statutory ouster of judicial review 28.2 Time-limit ousters

28.1 Statutory ouster of judicial review. Legislative provisions which on their face exclude or abrogate judicial review do not thrive. The Courts strive to preserve and defend judicial review, with its constitutional function and recognised constitutional inalienability. Statutory provisions can and do regulate judicial review: see section 31 of the Senior Courts Act 1981, including the statutory materiality test. And legislation may provide an effective alternative recourse to law. The cardinal principle remains: the Courts will secure the scope of judicial review required by the rule of law. Many apparent statutory ousters have not operated so as to preclude judicial review. 28.1.1 Judicial review as a constitutional guarantee. {P1} (a constitutional guarantee); {1.3} (judicial review’s constitutional inalienability). 28.1.2 Statutory underpinning: Senior Courts Act 1981 s.31. {2.1.6} (common law origins, statutory underpinning); {4.1} (statutory materiality test – highly likely: not substantially different (HL:NSD)). 28.1.3 Cardinal principle: Courts secure the scope of judicial review required by the rule of law. {1.3.5} 28.1.4 Court decides whether ouster compatible with the rule of law: Lord Carnwath in Privacy. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §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”, 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 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”). 28.1.5 The strong judicial aversion to ouster. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §34 (Lord Carnwath: “Authorities dating back at least to the seventeenth century … leave no doubt as to the hostile attitude of the High Court to attempts by statute to restrict its supervisory role”), 107 (describing “the critical importance of the common law presumption against ouster”); R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731 [2005] 1 WLR 1445 at §13 (Lord Phillips MR, Sedley and Scott Baker LLJ: “The common law power of the judges to review the legality of administrative action is a cornerstone of the rule of law in this country and one that the judges guard jealously. If Parliament attempts by legislation to remove that power, the rule of law is threatened. The courts will not readily accept that legislation achieves that end”); De Smith, Judicial Review of Administrative Action (1st edition, 1959) at 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. Legislation which deprives them of the power to perform this function is often claimed to be inimical to the principle of the rule or supremacy of law”); {1.1.7} (positing serious abuse of power to test availability of judicial review: ouster).

P28 OUSTER

28.1.6 Ouster and the appellate courts. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §142 (Lord Carnwath (obiter), identifying as arguable that it is “implicit in the constitutional framework for the rule of law … that legal issues of general importance should be reviewable by the appellant courts; and that an ouster clause which purports to exclude that possibility cannot, consistently with the rule of law, be upheld”), §132 (describing a principled approach whereby the “constitutional roles both of Parliament, as maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are … respected”). 28.1.7 Construction to preserve judicial review jurisdiction. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 170C-D (Lord Reid: “a provision ousting the ordinary jurisdiction of the court must be construed strictly”; “that meaning shall be taken which preserves the ordinary jurisdiction of the court”); R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738 [2003] 1 WLR 475 at §44 (statute not impliedly ousting judicial review of a county court permission to appeal decision); R (Asliturk) v City of Westminster Magistrates’ Court [2010] EWHC 2148 (Admin) [2011] 1 WLR 1139 at §24 (appeal-only provision construed “narrowly” so as not to apply to the act in question here); R v Bradford Metropolitan Borough Council, ex p Sikander Ali [1994] ELR 299, 315C-316B (judicial review available despite statutory preclusion of “proceedings, whether civil or criminal”, since judicial review not within “civil proceedings” for that purpose). 28.1.8 Ouster: nothing short of the clearest words. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §37 (describing the “strong interpretative presumption against the exclusion of judicial review, other than by ‘the most clear and explicit words’”), §99 (“nothing less than the clearest wording will suffice”) §111 (“judicial review can only be excluded by ‘the most clear and explicit words’”); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §37 (Lady Hale: “there is nothing in the … Act which purports to oust or exclude judicial review. … Clear words would be needed to do this and they are not there”); R v Hull University Visitor, ex p Page [1993] AC 682, 693H-694A (“Parliament can by the use of appropriate language provide that a decision …. shall … not be subject to challenge either by way of appeal or judicial review”); R v Acting Returning Officer for Devon (etc), ex p Sanders [1994] COD 497 (ouster by the Parliamentary Election Rules); {7.5.7} (access to law: not excluded at least unless ‘clear words’); R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738 [2003] 1 WLR 475 at §44 (need for clear and explicit words), §42 (no presumption that an ouster provision does not mean what it says, when applied to courts of law); cf R (Hilali) v Governor of Whitemoor Prison [2008] UKHL 3 [2008] 1 AC 805 at §21 (habeas corpus excluded here by clear statutory words). 28.1.9 Suitable alternative remedy ‘replacing’ judicial review. Grafton Group (UK) plc v Secretary of State for Transport [2016] EWCA Civ 561 [2017] 1 WLR 373 (statutory review) at §23 (Laws LJ: “if a provision, purporting to oust judicial review, provided in its place a remedy which was so ineffective as to amount in truth to no remedy, the court would incline to disallow the ouster. That is not this case”); R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731 [2005] 1 WLR 1445 (judicial review treated as having been effectively ‘replaced’ by paper-only statutory review, because Court satisfied that the new mechanism was a satisfactory and suitable alternative remedy); {P36} (alternative remedy). 28.1.10 Exclusive alternative remedy: jurisdictional ‘reallocation’. {36.2} (exclusive alternative remedy); R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §40 (discussing situation “where an ouster clause can be interpreted as not excluding judicial supervision but reallocating its exercise”); R (A) v Director of Establishments of Security Service [2009] UKSC 12 [2010] 2 AC 1 at §23 (Investigatory Powers Tribunal having exclusive jurisdiction to deal with HRA claims against the security services, as an ‘allocation’ of new statutory rights not an ouster of pre-existing rights); cf Stow v Stow [2008] EWHC 495 (Ch) [2008] Ch 461 (discussing the scope of the special commissioners’ exclusive jurisdiction in respect of tax appeals).

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28.1.11 ‘No certiorari’. {1.3.10} (disapplying statutory exclusion of judicial review: Cheltenham Commissioners); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 200F (citing Ex p Bradlaugh (1878) 3 QBD 509, 513 per Mellor J: “It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction”). 28.1.12 ‘Finality’ clauses. R (Woolas) v Parliamentary Election Court [2010] EWHC 3169 (Admin) [2012] QB 1 at §47 (finality clause not precluding judicial review for error of law); R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574 (statutory provision that decision “final” simply meaning ‘no appeal’, leaving judicial review intact); R (HMRC) v Machell [2005] EWHC 2593 (Admin) [2006] 1 WLR 609 at §24 (“final and conclusive” simply meaning no appeal and binding); HMB Holdings Ltd v Antigua and Barbuda [2007] UKPC 37 at §30 (“a clause which confers finality … can only relate to decisions which have been given within the field of operation that has been entrusted to the decision-maker”). 28.1.13 ‘Not to be called into question’. Attorney General of Trinidad and Tobago v Dumas [2017] UKPC 12 [2017] 1 WLR 1978 at §34 (“It has long been recognised that a statutory ouster clause, which provides that a determination shall not be called into question in any court of law, will not protect a purported determination from a legal challenge that it is ultra vires and therefore a nullity”), applying Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. 28.1.14 ‘No review’. R v SSHD, ex p Fayed [1998] 1 WLR 763, 771B-773C (statute providing that decision “shall not be subject to appeal to, or 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”, specifically for breach of natural justice, this rendering the decision a “nullity”); Attorney-General v Ryan [1980] AC 718, 730C-E (“It is by now well-established law that to come within the prohibition of appeal or review by an ouster clause of this type, the decision must be one which the decision-making authority … had jurisdiction to make. If in purporting to make it he has gone outside his jurisdiction, it is ultra vires and is not a ‘decision’ under the Act”); R v SSHD, ex p Mehta [1992] COD 484 (legislative provision stating that Secretary of State’s decision “shall not be subject to appeal to, or review in, any court” not preventing court from pointing out error in construction of the Act which rendered the decision a nullity). 28.1.15 ‘Conclusive evidence’. Bahamas Hotel Maintenance & Allied Workers v Bahamas Hotel Catering & Allied Workers [2011] UKPC 4 at §33 (statutory provision, that certificate “conclusive evidence” of valid registration, precluding judicial review), §34 (but refusal to cancel the registration could have been judicially reviewable); R v Registrar of Companies, ex p Central Bank of India [1986] QB 1114 (discussing effect of statutory provision that certificate of incorporation conclusive evidence of compliance with statutory requirements); R v Registrar of Companies, ex p Attorney General [1991] BCLC 476 (provision not binding on Crown, so Attorney General entitled to seek judicial review). 28.1.16 Tribunals and Inquiries Act 1992 s.12. See 1992 Act s.12(1), (3)(b) (“(1) … (a) any provision in an Act passed before 1st August 1958 that any order or determination shall not be called into question in any court, or (b) any provision in such an Act which by similar words excludes any of the powers of the High Court, shall not have effect so as to prevent the removal of the proceedings into the High Court by order of certiorari or to prejudice the powers of the High Court to make orders of mandamus. … (3) Nothing in this section shall apply – … (b) where an Act makes special provision for application to the High Court … within a time limited by the Act”), formerly s.14 of the equivalent 1971 Act. 28.1.17 Statutory ousters never applied to a ‘nullity’. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 170E-F (ouster “protects every determination which is not a nullity”), 211H (“the preclusive clause can have no application except to a determination made within the limits, whatever they turn out to be, fixed by Parliament”), 196C (importance

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of “jurisdiction” and “nullity” as to effect of ouster), 170F (“there are no degrees of nullity”), 208B-C (in ensuring “that the limits of that area which have been laid down are observed”, court is “carrying out the intention of the legislature”); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §18 (Lady Hale, discussing Anisminic); {28.1.14} (‘no review’); South East Asia Fire Bricks v Non-Metallic Mineral Products Manufacturing Employers Union [1981] AC 363 (jurisdictional error not excluded); R v Miall [1992] QB 836, 841H-842A; R v Paddington Valuation Officer, ex p Peachey Property Corporation Ltd [1966] 1 QB 380, 404E (“error which goes to the root”; “vitiated by fundamental error”); {32.2.6} (response to the limitations on Crown Court reviewability: nullity/jurisdictional error); {P44} (nullity). 28.1.18 Ouster and target: ouster not preventing challenge to antecedent/subsequent steps. R (CK (Theydon Bois) Ltd) v Epping Forest District Council [2018] EWHC 1649 (Admin) [2019] PTSR 183 at §§51-52 (statutory time-limit ouster in relation to development plan document not preventing judicial review to antecedent decisions); (statutory ouster in relation to order not preventing judicial review of resolution to make an order); R v Wiltshire County Council, ex p Nettlecombe Ltd (1998) 96 LGR 386 (ouster in relation to orders made not preventing judicial review challenge to antecedent step of decision to make an order); R (Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000 [2005] LGR 105 at §47 (even if Order not open to challenge given statutory time-limit ouster, could be possible to challenge validity of subsequent instruments made under the Order and replicating the lack of vires); {5.3} (multiple targets/target-selection); {28.2.5} (antecedent/subsequent step and time-limit ouster). 28.1.19 Ouster and decisions of ‘courts of law’. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 (presumption against ouster of the High Court applied to a court of law); Lee v Ashers Baking Co Ltd [2018] UKSC 49 [2020] AC 413 at §§85-88 (approach in Anisminic to interpretation of ouster clause not applicable to superior court). 28.1.20 No ouster of judicial review by contract. State of Mauritius v CT Power Ltd [2019] UKPC 27 at §44 (“a contract between a public authority and a private party cannot remove the judicial review jurisdiction of the court, which exists to safeguard the public interest”).

28.2 Time-limit ousters. A special type of statutory ouster provides that (1) a right of challenge (eg appeal, statutory review or judicial review) (2) must be exercised within a prescribed time window (eg 6 weeks) and (3) the matter not otherwise to be questionable in legal proceedings. The legislative purpose is not to exclude the supervisory jurisdiction, but to control its timing. Courts have treated judicial review outside those express timelimited constraints as lawfully excluded, compatibly with the rule of law. 28.2.1 Time-limit ouster clauses. R (Hillingdon LBC) v Secretary of State for Transport [2017] EWHC 121 (Admin) [2017] 1 WLR 2166 at §40 (Cranston J, describing these as “time limited clauses, which confine challenges made within certain boundaries” and which “are tolerated”, whereas “true ouster clauses are deprecated”). 28.2.2 Upholding time-limit ousters: the rule of law explanation. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §129 (Lord Carnwath, considering “the acceptance by the courts of the familiar statutory ouster of challenges to planning and similar decisions after a six-week time limit”), §130 (showing that “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”, which “may be seen as providing a sounder conceptual basis” then was “the way in which the decisions [in the case law] were justified at the time”), §§132-133 (time-limit ousters “may readily satisfy” the test as to “the level of scrutiny required by the rule of law”): {1.3.5} (cardinal principle: Courts secure the scope of judicial review required by the rule of law). 421

PARAMETERS OF JUDICIAL REVIEW

28.2.3 Enforcing time-limit ousters. Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54 [2019] PTSR 1406 at §§24, 40 (statutory six-week limitation period for planning statutory review only capable of extension (a) where court closed on deadline day (b) in exceptional circumstances on human rights grounds); R (Oyston Estates Ltd) v Fylde Borough Council [2019] EWCA Civ 1152 [2019] 1 WLR 5484 at §13 (Town and Country Planning Act 1990 s.61N: proceedings for questioning neighbourhood plan decision-making “may … only” be entertained by judicial review filed within six weeks), §§30-39 (precluding later judicial review); R (Hillingdon LBC) v Secretary of State for Transport [2017] EWHC 121 (Admin) [2017] 1 WLR 2166 (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); R (IA) v Secretary of State for Communities & Local Government [2011] EWCA Civ 1253 at §38 (“the time limit is absolute and the court cannot entertain an application to extend it. … This is so, even in a case where there is a material allegation of fraud”); R (Hilali) v Governor of Whitemoor Prison [2008] UKHL 3 [2008] 1 AC 805 at §21 (Parliament providing for statutory extradition appeal with a time-limit, and decision not able to be questioned other than by appeal within specified time-limit; “the remedy of habeas corpus must be taken to have been excluded by the clear and unequivocal wording”), applied in R (Navadunskis) v Serious Organised Crime Agency [2009] EWHC 1292 (Admin) and R (Mann) v Westminster Magistrates’ Court [2010] EWHC 48 (Admin) at §11 (judicial review only available on narrow grounds). 28.2.4 Enforcing time-limit ousters: older cases. R v Cornwall County Council, ex p Huntington [1994] 1 All ER 694 (statutory time-limit ouster effectively ousting judicial review); R (Deutsch) v Hackney LBC [2003] EWHC 2692 at §17 (statutory time-limit ouster effectively ousting challenge to parking designation order), §25 (emphasising that order “bears no brand of invalidity on its forehead”), §27 (leaving open situation where any question of HRA-compatibility); Smith v East Elloe Rural District Council [1956] AC 736 (strict enforcement of time-limit ouster); R v Secretary of State for the Environment, ex p Ostler [1977] 1 QB 122 (Court of Appeal concluding that Smith survived Anisminic); R v Secretary of State for the Environment, ex p Kent [1990] COD 78 (CA refusing permission in the face of six-week time-limit ouster); Khan v Newport Borough Council [1991] COD 157 (CA declining permission in the face of six-week time-limit ouster to challenge tree preservation order); R v Secretary of State for the Environment, ex p Upton Brickworks Ltd [1992] COD 301 (permission set aside because of time-limit ouster); R v London Borough of Camden, ex p Woolf and Others [1992] COD 456 (permission set aside in light of time-limit ouster); R v Devon County Council, ex p Isaac and Another [1992] COD 371 (refusal of judicial review of (unconfirmed) modification order in light of time-limit ouster); R v Dacorum District Council, ex p Cannon [1996] 2 PLR 45 (judicial review of listed building enforcement notice refused, because available appeal (with time limit) an exclusive remedy); Enterprise Inns Plc v Secretary of State for the Environment, Transport and the Regions [2000] 4 PLR 52 (strict approach to whether application within the six-week period; no jurisdiction where application lodged prior to start-date). 28.2.5 Antecedent/subsequent step and time-limit ouster. R v Wiltshire County Council, ex p Nettlecombe Ltd (1998) 96 LGR 386 (entertaining challenge to an ‘antecedent step’ and plain error of law); {28.1.8} (ouster and target: ouster not preventing challenge to antecedent/ subsequent steps); cf R (Hillingdon LBC) v Secretary of State for Transport [2017] EWHC 121 (Admin) [2017] 1 WLR 2166 at §§50, 59, 70-72 (on correct interpretation, time-limit ouster clause also precluding judicial review of antecedent and preparatory steps); R (Mann) v Serious Organised Crime Agency [2010] EWHC 1760 (Admin) at §§22-23 (possibility of judicial review after statutory time limit for appeal, despite ouster, if “supervening event” of “critical importance”).

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P29 Interpretation. Discerning the true meaning of legislative and other relevant sources is vital to effective judicial review. 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

29.1 The purposive approach to interpretation. The correct meaning of a legal instrument is a (hard-edged) question for the Court. Enactments are interpreted by focusing on purpose and intent, approached by reference to the language, context and background. The meaning so derived can be strained but must be one which the words used can bear. Strong interpretative techniques promote compatibility with statutory and common law rights. And the Court may correct an obvious drafting error by means of a rectifying construction. 29.1.1 The rule of law and parliamentary intention. R (Roszkowski) v SSHD [2017] EWCA Civ 1893 [2018] 1 WLR 2848 at §32 (McCombe LJ: “part of the rule of law in this country is to give proper effect to Parliamentary intention. The task is to determine the intention from the words used and the context of the legislation as a whole”, referring to R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787); {16.4} (interpretation as a hard-edged question). 29.1.2 Purposive interpretation. R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 [2020] 1 WLR 3300 at §54 (McCombe LJ: “It is … necessary to ascertain and give effect to the true meaning of a statute having regard to ‘the purpose which Parliament intended to achieve when it enacted the statute’”); Chief Fire Officer v Felix-Phillip [2020] UKPC 12 at §14 (applying a “purposive interpretation”, which “gives effect to what may be presumed was the intention of the legislature”); UBS AG v HMRC [2016] UKSC 13 [2016] 1 WLR 1005 at §61 (Lord Reed: “the modern approach to statutory construction is to have regard to the purpose of a particular provision and interpret its language, so far as possible, in the way which best gives effect to that purpose”); Littlewoods Ltd v HMRC [2017] UKSC 70 [2018] AC 869 at §39 (adopting “a departure from a literal construction” as being “justified where it is necessary to enable the provision to have the effect which Parliament must have intended”); MS (Uganda) v SSHD [2016] UKSC 33 [2016] 1 WLR 2615 at §29 (adopting “a natural meaning … most consistent with its purpose”); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §18 (interpretation of the legislation “consistent with its purpose”); Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] UKSC 25 [2011] 1 WLR 1546 at §10 (Lord Mance: “In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance. They represent the context in which individual words are to be understood”); R (Electoral Commission) v Westminster Magistrates’ Court [2010] UKSC 40 [2011] 1 AC 496 at §15 (interpretation “having regard to the mischief at which it is aimed”, “to promote the policy and objects of the statute”), §103 (“legislation should be construed to serve its statutory purpose”), §110 (“the purpose of an item of legislation should inform one’s approach to the interpretation of its constituent parts”); R (Quintavalle) v Secretary of State for Health [2003] UKHL 13 [2003] 2 AC 687 at §8 (Lord Bingham: “The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose”), §21 (Lord Steyn: “statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning”); Pepper v Hart [1993] AC 593, 617E-F (“The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation”).

PARAMETERS OF JUDICIAL REVIEW

29.1.3 The purpose from the terms/language. R (Jimenez) v First-tier Tribunal [2019] EWCA Civ 51 [2019] 1 WLR 2956 at §33 (Patten LJ, referring to “established principle that the intention of Parliament is to be derived from the terms of the Act read as a whole and in context”); AS (Somalia) v SSHD [2011] EWCA Civ 1319 [2012] Imm AR 217 at §30 (Sullivan LJ: “the starting point must be that Parliament’s intention in enacting [the] section … must be ascertained by reference to the language actually used by Parliament”); R (Quintavalle) v Secretary of State for Health [2003] UKHL 13 [2003] 2 AC 687 at §38 (Lord Millett: “the task of the court is to ascertain the intention of Parliament as expressed in the words it has chosen”); Seal v Chief Constable South Wales Police [2007] UKHL 31 [2007] 1 WLR 1910 at §5 (Lord Bingham: “In construing any statutory provision the starting point must always be the language of the provision itself”); R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 [2002] 1 WLR 2956 at §6 (Lord Steyn: “The object is to see what is the intention expressed by the words enacted”); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §56 (Lord Nicholls: “When a court is carrying out its constitutional task of interpreting legislation it is seeking to identify the intention of Parliament expressed in the language used. This is an objective concept. In this context the intention of Parliament is the intention the court reasonably imputes to Parliament in respect of the language used”); R v Z (Attorney General for Northern Ireland’s Reference) [2005] UKHL 35 [2005] 2 AC 645 at §§16-17 (Lord Bingham: “the task of the court is to interpret the provision which Parliament has enacted and not to give effect to an inferred intention of Parliament not fairly to be derived from the language of the statute”); Black-Clawson International Ltd v Papierwerke WaldhofAschaffenburg AG [1975] AC 591, 613G (“We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said”), applied in Roodal v The State [2003] UKPC 78 [2005] 1 AC 328 at §15; R v Inland Revenue Commissioners, ex p Woolwich Equitable Building Society [1990] 1 WLR 1400, 1411G (“the question is ultimately not one of what, subjectively, Parliament may (or must) have intended to do but whether, by the words which it has used, it has effectively done it”); R (O’Byrne) v Secretary of State for the Environment, Transport and the Regions [2002] UKHL 45 [2002] 1 WLR 3250 at §3 (“the intention of Parliament must be inferred by considering the terms and purposes of both Acts in their respective contexts”); R (Wilkinson) v Commissioners of Inland Revenue [2005] UKHL 30 [2005] 1 WLR 1718 at §18 (“the intention of Parliament” normally means “the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption [under HRA s.3] that it was not intended to be incompatible with Convention rights”); R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) at §79 (relying on the Welsh-language version to construe an Act of the Welsh Assembly). 29.1.4 The meaning/purpose from the context. R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852 [2019] 1 WLR 1862 at §20 (Leggatt LJ: “the modern emphasis is on a contextual approach designed to identify and give effect to the purpose of the statute”), §21 (“relevant context” is “internal and external to the statute. The internal context requires the interpreter to consider how the provision in question relates to other provisions of the same statute and to construe the statute as a whole. The external context includes other relevant legislation and common law rules, as well as any policy documents such as Law Commission reports, reports of Parliamentary committees, or Green and White Papers, which form part of the background to the enactment of the statute. When the strict conditions specified by the House of Lords in Pepper v Hart [1993] AC 593 are satisfied, reference may also be made to Parliamentary debates as reported in Hansard”); EE Ltd v Ofcom [2017] EWCA 1873 [2018] 1 WLR 1868 at §41 (Patten LJ: “as with any case of statutory interpretation it is necessary to identify the relevant context in which the word is used and the problem or issue to which it was addressed”); R (BA (Nigeria)) v SSHD [2009] UKSC 7 [2010] 1 AC 444 at §27 (“the words of a statute should be construed in the context of the scheme of the statute as a whole”); Inland Revenue Commissioners v McGuckian [1997] 1 WLR 991, 999D (Lord Steyn: “Where there is no obvious meaning of a statutory provision the modern emphasis is on a contextual approach designed to identify the purpose of a statute and to give effect to it”); R (Westminster City Council) v National Asylum Support Service [2002] 424

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UKHL 38 [2002] 1 WLR 2956 at §5 (Lord Steyn: “the context must always be identified and considered”). 29.1.5 The mischief. R v Z (Attorney General for Northern Ireland’s Reference) [2005] UKHL 35 [2005] 2 AC 645 at §17 (Lord Bingham: “the interpretation of a statute … is directed to a particular statute, enacted at a particular time, to address (almost invariably) a particular problem or mischief”); R (Forge Care Home Ltd) v Cardiff and Vale University Health Board [2017] UKSC 56 [2017] PTSR 1140 at §25 (Lady Hale: “We are … entitled to take into account the preceding reports and explanatory notes to identify the mischief at which the legislation was aimed and the proposed solution to it”); Littlewoods Ltd v HMRC [2017] UKSC 70 [2018] AC 869 at §35 (interpretation having “regard to the state of affairs existing, and known by Parliament to be existing, at the time” it being a “fair assumption that Parliament’s policy or intention is directed to that state of affairs”, referring to RCN [1981] AC 800 at 822); R (Electoral Commission) v Westminster Magistrates’ Court [2010] UKSC 40 [2011] 1 AC 496 at §15 (interpretation “having regard to the mischief at which it is aimed”), §48 (“the mischief against which the relevant part of the Act is directed”); Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1583H-1584A (“legislation should be interpreted in light of the mischief which it appears to have been intended to remedy”); R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 [2002] 1 WLR 2956 at §5 (“Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are … always admissible aids to construction”); R v Kensington and Chelsea LBC, ex p Lawrie Plantation Services Ltd [1999] 1 WLR 1415 (HL identifying mischief which Parliament was intending to counter); {29.3.20} (Official Reports etc); {29.4.10} (using Hansard to identify the mischief). 29.1.6 Natural and ordinary meaning. R (Mawbey) v Lewisham LBC [2019] EWCA Civ 1016 [2020] PTSR 164 at §20 (Lindblom LJ: “one must begin with a straightforward interpretation of [the] provision, giving it its natural and ordinary meaning; and then consider whether there is anything in the legislative context to displace that meaning”); Cusack v Harrow LBC [2013] UKSC 40 [2013] 1 WLR 2022 at §60 (referring to “the so-called golden rule … that words are prima facie to be given their ordinary meaning”); R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 at §30 (Lord Neuberger: “the natural meaning of the words in question is an important factor in an issue of statutory interpretation”); Sharif v Camden LBC [2013] UKSC 10 [2013] PTSR 343 at §17 (Lord Carnwath, disagreeing with the then Etherton LJ, as to what was the correct “ordinary meaning”); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309, 345H-346A (“giving the words their natural and ordinary meaning … helps to prevent the growth and multiplication of refined and subtle distinctions in the law’s use of common English words”); Yemshaw v Hounslow LBC [2011] UKSC 3 [2011] 1 WLR 433 at §19 (word having more than one “natural meaning”); R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 [2020] 1 WLR 3300 at §73 (Underhill LJ: “at least in the case of a phrase of this generality, I do not find it helpful to start by trying to identify a ‘natural meaning’ without reference to the context”); {29.3.5} (dictionary definition). 29.1.7 Purpose and plain words. Hancock v HMRC [2019] UKSC 24 [2019] 1 WLR 3409 at §24 (“strained interpretation” may be adopted to avoid a “clear inconsistency” with “the intention of Parliament”); R (Davis) v Watford Borough Council [2018] EWCA Civ 529 [2018] 1 WLR 3157 at §34 (purposive considerations not enabling departure from the plain meaning); R (Electoral Commission) v Westminster Magistrates’ Court [2010] UKSC 40 [2011] 1 AC 496 (statutory power interpreted purposively), §90 (Lord Brown, dissenting: language “clear and unambiguous”), §110 (Lord Kerr, although linguistic-based conclusion “difficult to resist”, construe by reference to underlying aim); Inland Revenue Commissioners v Hinchy [1960] AC 748, 767 (Lord Reid: “we can only take the intention of Parliament from the words which they have used in the Act, and therefore the question is whether these words are capable of a more limited construction. If not, 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”); Beswick v Beswick [1968] AC 58, 73 (Lord Reid: “If the words of the Act are only capable of one meaning we must give them that 425

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meaning no matter how they got there”); In re Arrows Ltd (No 4) [1995] 2 AC 75, 109F-G (albeit “hard to believe that Parliament … meant [this]”, it being “anomalous in the extreme”; “Yet that is the result which is produced by the language of [the] section”). 29.1.8 Rectifying construction: altered language effecting Parliament’s intention. NA (Pakistan) v SSHD [2016] EWCA Civ 662 [2017] 1 WLR 207 at §§25-27 (“obvious drafting error” in immigration Act); Ghany v Attorney General of Trinidad and Tobago [2015] UKPC 12 (rectifying construction to correct an obvious drafting error in the statute), applying Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, 592C-593A (Lord Nicholls: “The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. … This power is confined to plain cases of drafting mistakes. … Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed”), discussed in R v McCool [2018] UKSC 23 [2018] 1 WLR 2413 at §36; Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §22 (no drafting mistake); R (SSHD) v Southwark Crown Court [2013] EWHC 4366 (Admin) [2014] 1 WLR 2529 (reading in “or order”); R (Noone) v Governor of Drake Hall Prison [2010] UKSC 30 [2010] 1 WLR 1743 at §§74-75 (Lord Mance, applying Inco in the context of delegated legislation); R (Passenger Transport UK) v Humber Bridge Board [2003] EWCA Civ 842 [2004] QB 310 (rectifying a statutory instrument); R (Kelly) v Secretary of State for Justice [2008] EWCA Civ 177 [2009] QB 204 (reading words into Order); R (Zenovics) v SSHD [2002] EWCA Civ 273 [2002] INLR 219 at §26 (rectifying construction); R (Buddington) v SSHD [2006] EWCA Civ 280 at §26 (supplying the missing comma); R (CPS) v Bow Street Magistrates Court [2006] EWHC 1763 (Admin) [2007] 1 WLR 291 (reading in words to correct obvious drafting error); Haw v City of Westminster Magistrates Court [2007] EWHC 2960 (Admin) [2008] QB 888 at §28 (applying Inco); R (W (A Minor) v Leeds Crown Court [2011] EWHC 2326 (Admin) [2012] 1 Cr App R 162 at §50 (legislation deficient but Court unable to find a plain lacuna which Parliament by sheer oversight overlooked). 29.1.9 Compatible-interpretation principles. {9.3} (HRA s.3: compatible interpretation); {P35} (principle of legality); {P7} (constitutional fundamentals); {8.1.4} (EU law principle of ‘conforming interpretation’: Marleasing); {46.2} (interpretation to allow validity: reading down/reading in).

29.2 Legislative purpose and judicial review. The concept of legislative purpose has a central role in judicial review. It drives or influences many of the grounds on which the Court can intervene. And it is always a key part of the context in which the application of judicial review principles takes place. 29.2.1 Legislative purpose at the heart of judicial review. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §115 (Underhill LJ, discussing “irrationality” and “the Padfield principle”: “ultimately these various characterisations are simply aspects of the fundamental question of whether Parliament can have intended the rule-making power to be exercised in [such a way”); R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §78 (whether “Parliament contemplated or intended that ministers could cause the United Kingdom to withdraw from the EU Treaties without prior Parliamentary approval”); R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 at §37 (identifying the “aim of the legislation”, in concluding that proposed regulations ultra vires); R v Hull University Visitor, ex p Page [1993] AC 682, 693A (Lord Griffiths: “the purpose of judicial review clearly … is to ensure that those bodies that are susceptible to judicial review have carried out their public duties in the way it was intended they should”); In re Findlay [1985] AC 318, 335B-C (“legislative purpose” as the critical factor in relation to illegality grounds); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 572E-G (describing “the court’s duty to determine whether the minister has … acted 426

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within the powers conferred on him by Parliament”: “the court is not acting in opposition to the legislature, or treading on Parliamentary toes. On the contrary: it is ensuring that the powers conferred by Parliament are exercised within the limits, and for the purposes, which Parliament intended”); R v SSHD, ex p Yousaf [2000] 3 All ER 649 at §48 (Sedley LJ: “Statutes constitutive of public authority rarely create a true discretion. … They … generally give ministers authority to do things at their own election in order to promote … the policy and objects of the statute”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 398B-402G; {29.1} (the purposive approach to interpretation); {53.1.2} (duty to promote and not frustrate the legislative purpose: the Padfield principle); {P31} (context). 29.2.2 Whether ultra vires the sole underpinning for judicial review grounds. {45.2.3} (whether ultra vires is a unifying theme). 29.2.3 Power is held on trust: to be exercised for the purpose for which conferred. {39.1.5} 29.2.4 Legislative purpose: grounds for judicial review. {P46} (ultra vires); {P53} (frustrating the legislative purpose); {50.3} (improper delegation); {P56} (relevancy/ irrelevancy); {61.4} (procedural ultra vires); also R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 at §49 (Lord Phillips MR: “The extent to which the exercise of a statutory power is in practice open to judicial review on the ground of irrationality will depend critically on the nature and purpose of the enabling legislation”). 29.2.5 Legislative purpose: intended vitiating consequence (Soneji). {61.4.3} (whether intended vitiating consequence: Soneji); R (Garland) v Secretary of State for Justice [2011] EWCA Civ 1335 [2012] 1 WLR 1879 at §22 (Soneji meaning the law has “re-focused attention on Parliamentary intention”). 29.2.6 Legislative purpose: other illustrations. {P34} (reviewability/non-reviewability); {P39} (discretion/duty). 29.2.7 Beware of hypothetical legislative purpose. Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735, 754C (unhelpful to ask what “Parliament would have been likely to intend”, where it is “a purely speculative question”); R v Inland Revenue Commissioners, ex p Woolwich Equitable Building Society [1990] 1 WLR 1400, 1415F-1416A (“The draftsman’s hypothetical intention is by no means obvious … [and] a matter of pure speculation”).

29.3 Statutory interpretation. There are a wide range of tools and techniques by which Courts unlock the meaning of a legislative provision. Many illustrations can be given. What is needed in administrative law is full familiarity with the toolkit and its highly skilled use. 29.3.1 Importance of statutory interpretation. R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852 [2019] 1 WLR 1862 at §19 (Leggatt LJ: “Given its prevalence and importance, the interpretation of statutes is a much neglected area of the law”; “cases in which the applicable principles of statutory interpretation have been considered by the United Kingdom’s highest court … are not well known. It is … unusual for authority to be cited when questions of statutory interpretation arise”). 29.3.2 The purposive approach to interpretation. {29.1} 29.3.3 The Interpretation Act 1978. Civil Nuclear Police Federation v Civil Nuclear Police Authority [2016] EWHC 2186 (Admin) [2016] ACD 112 (s.5); In re Wilson [1985] AC 750 (s.12(1)); R v West London Stipendiary Magistrate, ex p Simeon [1983] 1 AC 234 (s.16(1)); R v General Medical Council, ex p Gee [1987] 1 WLR 564 (s.17(2)(b)); R v Brentwood Justices, ex p Nicholls [1992] 1 AC 1 (s.6(c)); R (Oy) v Bristol Magistrates’ Court [2003] UKHL 55 [2004] 2 All ER 555 (s.18). 427

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29.3.4 Natural and ordinary meaning. {29.1.6} 29.3.5 Dictionary definition. R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 [2014] AC 610 at §62; Assange v Swedish Prosecution Authority [2012] UKSC 22 [2012] 2 AC 471 at §17 (Lord Phillips); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309, 342C; R v Devon County Council, ex p G [1989] 1 AC 573, 604A. 29.3.6 Established/settled meaning/practice. WB v W District Council [2018] EWCA Civ 928 [2018] HLR 30 at §27 (Arden LJ, describing “the Barras principle … that where the courts have interpreted a term in an enactment and Parliament makes further legislative provision using the same term, it is presumed to have chosen that the same meaning should apply in legislation re-enacting the previous legislation or similar legislation”); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at §19 (presumption that Parliament adopts judicially interpreted phrase intending it to have the same meaning); R (N) v Lewisham LBC [2014] UKSC 62 [2015] AC 1259 at §53 (Barras principle), §95 (settled practice); Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] UKSC 25 [2011] 1 WLR 1546 at §58 (settled construction). 29.3.7 Common law backcloth/informed interpretation. R (Robinson) v SSHD [2019] UKSC 11 [2019] 2 WLR 897 at §62 (Lord Lloyd-Jones, describing “the principle of informed interpretation”: “Parliament is normally presumed to legislate in the knowledge of and having regard to relevant judicial decisions” and “can therefore be assumed to have legislated in the light of a consistent line of authority”); UKI (Kingsway) Ltd v Westminster City Council [2018] UKSC 67 [2019] 1 WLR 104 at §45 (Lord Carnwath: “this was the state of the general law … Parliament must be taken to have legislated against that background”; necessary “to point to some provision of [the] Act which expressly or impliedly restricts the previous law, or overall inconsistency sufficient to overcome the general presumption that Parliament does not intend to change the common law”); R v SSHD, ex p Pierson [1998] AC 539, 587C (Lord Steyn: “Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law”), 573G (Lord Browne-Wilkinson); R (Rottman) v Commissioner of Police for the Metropolis [2002] UKHL 20 [2002] 2 AC 692 at §75 (Lord Hutton: “It is a well-established principle that a rule of the common law is not extinguished by a statute unless the statute makes this clear by express provision or by clear implication”); National Assistance Board v Wilkinson [1952] 2 QB 648, 661 (“a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion”), cited in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 650F; {P35} (principle of legality). 29.3.8 Relevance of parts of the same statute. R (Syed) v Secretary of State for Justice [2019] EWCA Civ 367 at §36 (“It is a basic canon of statutory construction that the words are intended to bear the same meaning where they appear in the same statutory or regulatory context provision”); Southwark LBC v Transport for London [2018] UKSC 63 [2019] PTSR 1 (same word having different meaning in Highways Act 1990 ss.263 and 265); Assange v Swedish Prosecution Authority [2012] UKSC 22 [2012] 2 AC 471 at §75 (rebuttable presumption that same word or phrase having the same meaning when used more than once in the same instrument); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 261C-E (rejecting the argument that slightly different phrases had “crucially different” meanings); Associated Dairies Ltd v Baines [1997] AC 524, 532F-G (“It is wrong to rely upon linguistic dissimilarities as indicative of an intended meaning with far reaching consequences when those consequences, seen in the wider context of the Act as a whole, lack all rhyme and reason”); Bromley LBC v Greater London Council [1983] 1 AC 768, 814H (Lord Wilberforce: the empowering provision “cannot … be read in isolation, and it is necessary to examine the rest of the Act in order to ascertain the framework in which this power is exercisable”); Cinzano (UK) Ltd v Customs & Excise Commissioners [1985] 1 WLR 484, 488E (“the pattern of the Act”); R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2002] UKHL 21 [2003] 1 AC 563 (other safeguards in the Act not sufficient to conclude that interference with legal professional privilege a necessary implication of 428

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the Act as a whole); R v Dudley Justices, ex p Gillard [1986] AC 442, 453G (avoiding an unsatisfactory overlap); R (Quintavalle) v Secretary of State for Health [2003] UKHL 13 [2003] 2 AC 687 at §§26, 41 (long title); R v Montila [2004] UKHL 50 [2004] 1 WLR 3141 at §36 (headings and sidenotes admissible aids to construction). 29.3.9 Whether the general yields to the specific. Sawkill v Highways England Company Ltd [2020] EWHC 801 (Admin) at §§23, 26-37 (discussing authorities on applicability of the maxim that general provisions yield to specific provisions), §42 (here, overlapping statutory provisions). 29.3.10 Antecedent legislation/legislative history. Mazhar v Lord Chancellor [2019] EWCA Civ 1558 [2020] 2 WLR 541 at §47 (“the legislative history, in particular the way in which a Bill was amended during its passage through Parliament, may throw light on the meaning of the resulting Act”); Southwark LBC v Transport for London [2018] UKSC 63 [2019] PTSR 1 at §6 (analysis of statutory history); Southwark LBC v Transport for London [2018] UKSC 63 [2019] PTSR 1 at §4 (citing Farrell v Alexander [1977] AC 59, 73 per Lord Wilberforce: “self-contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve”), §5 (recourse to statutory history appropriate here); R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349 (consolidating statute and restricted use of legislative history). 29.3.11 Later statute. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §113 (“A statute cannot normally be interpreted by reference to a later statute, save in so far as the later statute intends to amend the earlier statute or the two statutes are in pari materia, ie they are given a collective title, are required to be construed as one, have identical short titles, or ‘deal with the same subject matter on similar lines’”); R (George) v SSHD [2014] UKSC 28 [2014] 1 WLR 1831 at §30 (“Whilst statutes in pari materia should be construed consistently if possible, a later statute is not a reliable guide to the meaning of an earlier one, especially in a field such as immigration where social and political pressures have led to fast-moving changes in the legislation”). 29.3.12 Interpretation to avoid unreasonableness/absurdity. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §48 (“the court seeks to avoid a construction of a statutory provision that produces an absurd result, since this is unlikely to have been intended by Parliament”); R v McCool [2018] UKSC 23 [2018] 1 WLR 2413 at §§24-25 (Lord Kerr, discussing the presumption against absurdity); Romein v Advocate General for Scotland [2018] UKSC 6 [2018] AC 585 at §11 (rejecting an interpretation which “would have significantly undermined the purpose of the provision, for no reason that can readily be imagined”), §12 (provision inapplicable “whose application would make nonsense” of an assumption required by another provision); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §21 (Lord Reed: “legislation … can be given a strained interpretation where that is necessary to avoid absurd or perverse consequences”); R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] EWHC 713 (Admin) [2005] 1 WLR 2930 at §33 (Stanley Burnton J: “The courts presume that Parliament intended to legislate justly, fairly and reasonably … the values of the common law are dictated by current concepts of justice and fairness and reasonableness”); R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 at §28 (Lord Bingham: “in accordance with long-established principles of statutory interpretation, the courts will often imply qualifications into the literal meaning of wide and general words in order to prevent them having some unreasonable consequence which Parliament could not have intended”); McMonagle v Westminster City Council [1990] 2 AC 716, 726 (interpretation to avoid Act being “insensible, absurd or ineffective to achieve its evident purpose”); Burton v Mellham Ltd [2006] UKHL 6 [2006] 1 WLR 2820 at §19 (whether tax statute involving “so disproportionate a penalty as to raise real doubt whether Parliament can have intended the system to work like that”); R (Quintavalle) v Secretary of State for Health [2003] UKHL 13 [2003] 2 AC 687 at §49 (avoiding an interpretation which “would produce an incoherent and irrational regulatory code”), §15; R (Stellato) v SSHD 429

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[2007] UKHL 5 [2007] 2 AC 70 at §45 (surprising result unlikely to have been intended and so needing clearest of language); 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 §25 (“courts will often imply qualifications into the literal meaning of wide and general words in order to prevent them from having some unreasonable consequence which it is considered that Parliament could not have intended”), §116 (“the presumption that Parliament intends to act reasonably. … The Courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless”), §139 (“interpretative presumption that Parliament does not intend that legislation should bring about results that are unreasonable or unfair or arbitrary”) R (Noone) v Governor of Drake Hall Prison [2010] UKSC 30 [2010] 1 WLR 1743 (purposive interpretation to avoid irrational and absurd results); R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §46 (presumption “that the legislature intended to legislate for a certain and predictable regime”). 29.3.13 Interpretation to preserve basic fairness. R (Stern) v Horsham District Council [2013] EWHC 1460 (Admin) [2013] PTSR 1502 at §40 (Leggatt J: “I acknowledge the force of the argument based on the natural meaning of the words used in [the] section. … Nevertheless … interpreted in the context of the legislative scheme as a whole, the words of that provision must, to avoid unfairness which cannot reasonably have been intended and to make sense of the scheme of the legislation, be given the narrower meaning which I think they are also capable of bearing”); R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] EWHC 713 (Admin) [2005] 1 WLR 2930 at §33 (Stanley Burnton J: “It has always been a principle of the interpretation of statutes that the courts should seek to construe them so as to produce a just and fair law. The courts presume that Parliament intended to legislate justly, fairly and reasonably … the values of the common law are dictated by current concepts of justice and fairness and reasonableness”); Lord Steyn, The Weakest and Least Dangerous Department of Government [1997] PL 84, 85 (“Judges are … entitled to assume, unless a statute make crystal clear provision to the contrary, that Parliament would not wish to make unjust laws. Indeed … in the context of statutory interpretation legal reasoning may proceed on the initial premise that ‘simple fairness ought to be the basis of every legal rule’”); R (Edison First Power Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 20 [2003] 4 All ER 209 (presumption against “double taxation”); R (South Tyneside Metropolitan Borough Council) v Lord Chancellor [2007] EWHC 2984 (Admin) at §41 (preferring interpretation avoiding injustice); {61.3} (procedural fairness: supplementing the legislative scheme); {7.7} (basic fairness/natural justice); {35.2.8} (principle of legality and procedural fairness ‘supplementing the legislative scheme’). 29.3.14 Presumption against retrospectivity. Innospec Ltd v Walker [2017] UKSC 47 [2017] ICR 1077 at §22 (Lord Kerr: “unless a contrary intention appears, an enactment is presumed not to be intended to have retrospective effect”); Times Newspapers Ltd v Flood [2017] UKSC 33 [2017] 1 WLR 1415 at §53 (the “rule of law” including the “fundamental principle … that citizens are entitled to act on the assumption that the law is as set out in legislation …, secure in the further assumption that the law will not be changed retroactively – ie in such a way as to undo retrospectively the law upon which they committed themselves”); R (P) v General Dental Council [2016] EWHC 3181 (Admin) [2017] 4 WLR 14 at §20. 29.3.15 Penal provision construed narrowly. R (Good Law Project) v Electoral Commission [2019] EWCA Civ 1567 [2020] 1 WLR 1157 at §78 (principle of “doubtful penalisation”); R (Gibson) v Secretary of State for Justice [2018] UKSC 2 [2018] 1 WLR 629 at §21 (“Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty”); R v McCool [2018] UKSC 23 [2018] 1 WLR 2413 at §82 (penal statute to be construed strictly in favour of those penalised, where it would or might involve unfairness); R (Allensway Ltd) v Environment Agency [2015] EWCA Civ 1289 [2016] 1 WLR 1903 at §25 (Richards LJ: “where the statutory words are clear, the court should not read them as subject

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to an implied qualification that would make them more restrictive of individual rights. This is all the more important where, as here, the powers are backed up by criminal sanctions”). 29.3.16 ‘Easy to say so’. {7.4.8} 29.3.17 Updating interpretation/always speaking. R (Monica) v DPP [2018] EWHC 3508 (Admin) [2019] QB 1019 at §85 (“Statutes are ‘always speaking’, so that there may be ‘updating construction’ including where there have been changes in social conditions or in the way society views matters”); R v G [2003] UKHL 50 [2004] 1 AC 1034 at §29 (“Since a statute is always speaking, the context or application of a statutory expression may change over time, but the meaning of the expression itself cannot change”); Yemshaw v Hounslow LBC [2011] UKSC 3 [2011] 1 WLR 433 at §27 (need to ask whether updated meaning consistent with statutory purpose); In re McFarland [2004] UKHL 17 [2004] 1 WLR 1289 at §25 (“legislation, primary or secondary, must be accorded an always-speaking construction unless the language and structure of statute reveals an intention to impress on the statute a historic meaning. Exceptions to the general principle are a rarity”); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §153 (Lord Phillips); Birmingham City Council v Oakley [2001] 1 AC 617, 631F-G (content of statutory concept may change over time, but the concept remains the same); R (Quintavalle) v Secretary of State for Health [2003] UKHL 13 [2003] 2 AC 687 at §§9, 22-23. 29.3.18 Realities of the legislative process. R v Herrod, ex p Leeds City Council [1978] AC 403, 424D-E (“It cannot be supposed that members of Parliament have the time meticulously to examine the large number of schedules which seem to have become a normal feature of modern statutes, let alone to scrutinise what are described as minor and consequential amendments tucked away in an eleventh schedule”); Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735, 751B (“In construing a provision of doubtful meaning I think we are entitled to have some regard to the legislative habits of Parliament”). 29.3.19 Conventional gateways to external aids: ambiguity or absurdity. R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349, 398C-D (Lord Nicholls: “the constitutional implications point to a need for courts to be slow to permit external aids to displace meanings which are otherwise clear and unambiguous and not productive of absurdity”). 29.3.20 Official Reports etc. {29.1.5} (the mischief); Iceland Foods Ltd v Berry [2018] UKSC 15 [2018] 1 WLR 1277 at §7 (expert advisory committee report “an appropriate aid to construction” of regulations); General Medical Council v Raychaudhuri [2018] EWCA Civ 2027 [2019] 1 WLR 324 at §48 (government consultation paper and analysis of consultation responses (see §§15-16) “equivalent to a White Paper explaining the purpose of the legislation” and so “legitimate aids to construction to assist in identifying such purpose in the context of construing the legislation enacted in consequence”); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at §§22, 29-30 (Green Paper relevant to identifying mischief); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §56 (White Papers on the question of mischief); R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 at §84 (White Paper relied on); R (Electoral Commission) v Westminster Magistrates’ Court [2010] UKSC 40 [2011] 1 AC 496 at §§17-24 (discussing the history to the Act including the Neill report and White Paper), §25 (“the legislative history provides a particularly clear picture of the objects”), §116 (“the essential purpose identified by the Neill report”). 29.3.21 Using international instruments. {6.3} (international law). 29.3.22 Using subordinate legislation to construe primary legislation. R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16 [2020] 1 WLR 1774 at §24 (“The content of any unchallenged regulations can be a guide to the interpretation of their enabling Act even when they are not made contemporaneously with the Act”, citing Hales v Bolton Leathers Ltd [1951] AC 531); R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852 [2019] 1 WLR 1862 at §24 431

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(“Regulations can only be used as an aid to the interpretation of the Act under which they are made if they were contemporaneously prepared, so that the draft Regulations formed part of the background against which Parliament was legislating”); R v McCool [2018] UKSC 23 [2018] 1 WLR 2413 at §153 (subordinate legislation used to interpret the primary legislation); R (National Aids Trust) v NHS England [2016] EWCA Civ 1100 [2017] 1 WLR 1477 at §32 (“permissible” and “right” to have regard to ambit of regulations made shortly after the Act was passed, as “the best guide to the ambit” of defendant’s responsibilities under the Act), §57; R (A) v Director of Establishments of Security Service [2009] UKSC 12 [2010] 2 AC 1 at §§40-41 (limits of using regulations to construe the enabling statute); Hanlon v Law Society [1981] AC 124, 193-194 (Lord Lowry); MS (Palestinian Territories) v SSHD [2010] UKSC 25 [2010] 1 WLR 1639 at §36 (doubting whether regulation could be used as an aid to construction); R v Oxford Regional Mental Health Review Tribunal, ex p SSHD [1988] AC 120, 129B (use of regulation to construe Act doubtful). 29.3.23 Whether subordinate legislation cuts down/modifies primary legislation/statutory rights. R (VIP Communications Ltd) v SSHD [2019] EWHC 994 (Admin) [2019] ACD 69 at §§50(4), 54 (“clear words are required to give a power, by way of secondary legislation, to override a statutory duty imposed by other primary legislation”); R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §65 (applying the “rule” of statutory interpretation in R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, 290A: “Specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act”), §103; R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 at §26 (restrictive approach to power and exercise of statutory power to modify primary legislation by means of subordinate legislation). 29.3.24 Policy guidance/code of practice: an aid to construction? R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852 [2019] 1 WLR 1862 at §§24-25 (Code of Practice an aid to statutory construction, if contemporaneously prepared, so that draft Code formed part of the background against which Parliament was legislating); R (AD) v London Borough of Hackney [2020] EWCA Civ 51 [2020] 1 WLR 15468 at §42 (Code of Practice could be a legitimate aid to statutory interpretation); Yemshaw v Hounslow LBC [2011] UKSC 3 [2011] 1 WLR 433 at §56 (guidance “can be at most persuasive of the meaning to be given to legislative provisions”); R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12 [2006] 2 AC 307 at §15 (Circular cannot affect construction of the statute); R v Wandsworth LBC, ex p Beckwith [1996] 1 WLR 60 (circular entitled to respect but wrong); R v Brent LBC, ex p Awua [1996] 1 AC 55, 70B-D (Code of Guidance incorrectly stating position under the Act); R v Richmond upon Thames LBC, ex p McCarthy & Stone (Developments) Ltd [1992] 2 AC 48 (reliance on Circular neither “justifiable or necessary”); R v Gloucestershire County Council, ex p Barry [1997] AC 584, 612D (not “proper material for the construction of the critical provision”). 29.3.25 Explanatory notes/notes on clauses. R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 [2020] 2 All ER 813 at §37 (“In principle the Explanatory Notes to an Act of Parliament are an admissible aid to its construction … insofar as [they] ‘cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed’”, but they “could not alter the true interpretation of the statute”); R (Business Energy Solutions Ltd) v Preston Crown Court [2018] EWHC 1534 (Admin) [2018] 1 WLR 4887 at §49 (“Explanatory Notes … amount to a material admissible in law to guide the construction of primary legislation”); R (S) v Chief Constable of South Yorkshire [2004] UKHL 39 [2004] 1 WLR 2196 at §4 (“Explanatory notes … in so far as they cast light on the setting of a statute, and the mischief at which it is aimed, … are admissible in aid of construction of the statute”); R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 [2002] 1 WLR 2956 at §5 (“Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are … always admissible aids to construction”); R v A (No 2) [2001] UKHL 25 [2002] 1 AC 45 at §82. 432

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29.3.26 Using Hansard. {29.4} 29.3.27 Interpretation of other measures/sources. {29.5}

29.4 Using Hansard in judicial review. Courts will allow a question of statutory interpretation to be illuminated by a clear statement as to the meaning of the relevant provision, made in Parliament by a promoter of the Bill. Hansard may also be put to many other uses in judicial review, having regard always to the Bill of Rights and the impermissibility of ‘questioning proceedings in Parliament’. 29.4.1 Hansard as an aid to interpretation: the Pepper v Hart conditions. Pepper v Hart [1993] AC 593, 640B-C (Lord Browne-Wilkinson, describing permissible “reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear”); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §58 (“practical safeguards … intended to keep references to Hansard within reasonable bounds”); Mirvahedy v Henley [2003] UKHL 16 [2003] 2 AC 491 at §159 (“clear guidelines”); R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) at §70 (Pepper v Hart conditions applicable to reliance on debates leading to legislation of the devolved administrations). 29.4.2 Hansard as an aid to interpretation: a strict approach. R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349, 391E (Lord Bingham: “each of these conditions is critical”), 392D-E (“important that the conditions laid down by the House in Pepper v Hart should be strictly insisted upon”); R (Brown) v SSHD [2015] UKSC 8 [2015] 1 WLR 1060 at §27 (“ministerial answers to questions should only be admitted under Pepper v Hart … in the plainest of cases”); Pepper v Hart [1993] AC 593, 617A-B (Lord Bridge: “It should … only be in the rare cases where the very issue of interpretation which the courts are called on to resolve has been addressed in Parliamentary debate and where the promoter of the legislation has made a clear statement directed to that very issue, that reference to Hansard should be permitted”); Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 at §39 (“the conditions for admissibility must be strictly complied with”); R (Quintavalle) v Human Fertilisation and Embryology Authority [2005] UKHL 28 [2005] 2 AC 561 at §34 (“almost invariably the case” that Hansard statements do not assist). 29.4.3 Hansard as an aid to interpretation: illustrations. R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 at §65 (Lord Nicholls: “The Pepper v Hart ruling is sound in principle, removing as it did a self-created judicial anomaly. There are occasions when ministerial statements are useful in practice as an interpretive aid, perhaps especially as a confirmatory aid”); R v JTB [2009] UKHL 20 [2009] AC 1310 at §35 (“This is one of the rare cases where it is both legitimate and helpful to consider ministerial statements in Parliament under the principle in Pepper v Hart”), §40 (“Parliamentary materials … settle the matter conclusively”); Chief Adjudication Officer v Foster [1993] AC 754, 772E-G (describing Foster itself, R v Warwickshire County Council, ex p Johnson [1993] AC 583 and Stubbings v Webb [1993] AC 498 as cases in which Hansard was “found to provide the answer”); Harding v Wealands [2006] UKHL 32 [2007] 2 AC 1 at §§37-38 (clear statement by ministerial promoter), §83; AE Beckett & Sons (Lyndons) Ltd v Midland Electricity Plc [2001] 1 WLR 281 at §39 (“a rare case where material admitted under Pepper v Hart has resolved an ambiguity in the statute”); Nikonovs v Governor of Brixton Prison [2005] EWHC 2405 (Admin) [2006] 1 WLR 1518 at §§16, 18 (sufficient ambiguity and passages making answer clear beyond peradventure); Chief Constable of Merseyside Police v Harrison [2006] EWHC 1106 (Admin) [2007] QB 79 at §16; Haw v City of Westminster Magistrates Court [2007] EWHC 2960 (Admin) [2008] QB 888 at §26. 29.4.4 The Pepper v Hart conditions not met: illustrations. R v Adams [2020] UKSC 19 [2020] 1 WLR 2077 at §36; Dennis Hutchings [2019] UKSC 26 at §24 (Lord Kerr: where 433

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“the legislative intent of … [the] section is abundantly clear from its terms”, it is “not open … to put a gloss on that intent by reference to Parliamentary statements which might appear to be at odds with that clear intent”); R v M [2017] UKSC 58 [2017] 1 WLR 3006 at §13 (no ambiguity, obscurity or absurdity; nor “the kind of clear ministerial statement which amounted to a definitive identification of what the Bill was intended to achieve”); R (Forge Care Home Ltd) v Cardiff and Vale University Health Board [2017] UKSC 56 [2017] PTSR 1140 at §25 (ministerial statements “not sufficiently clear and unequivocal”); R v Docherty [2016] UKSC 62 [2017] 1 WLR 181 at §24 (Minister was not considering the clause which became the provision now being construed); R (Ismail) v SSHD [2016] UKSC 37 [2016] 1 WLR 2814 at §30 (Hansard statement “did not deal with the question at issue here”); R (Brown) v SSHD [2015] UKSC 8 [2015] 1 WLR 1060 at §26 (absence of statutory ambiguity and ministerial clarity); Assange v Swedish Prosecution Authority [2012] UKSC 22 [2012] 2 AC 471 (insufficient clarity) at §§13, 92, 99, 114, 170. 29.4.5 Other uses of Hansard: Bill of Rights prohibition. {34.4.6} (judicial review and proceedings in Parliament: parliamentary privilege (Bill of Rights)); {17.1.13} (Parliamentary privilege); R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) [2016] QB 862 at §67 (“it may be necessary for a court to have regard to parliamentary material in the context of an ECHR claim to determine whether a breach is proportionate”), §69 (“court … cannot refer to parliamentary material to question its truth or accuracy”). Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §60 (having regard to Hansard as background and on judicial review of ministerial decisions not “questioning” what said in Parliament, so compatible with Bill of Rights); Buchanan v Jennings [2004] UKPC 36 [2005] 1 AC 115 (Bill of Rights not violated where use of historical Hansard record to support defamation action based on statement confirmed but not repeated outside the House). 29.4.6 Using Hansard as relevant background material. In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3 [2015] AC 1016 at §55 (Lord Mance: “To put a legislative measure in context, domestic courts may (under a rule quite distinct from that in Pepper v Hart …) examine background material, including a white paper, explanatory departmental notes, ministerial statements and statements by Members of Parliament in debate”), referring to Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816; Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §119 (Lord Toulson, describing Hansard as “relevant background material”). 29.4.7 Using Hansard to identify decision/justification/policy/impact. R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21 [2019] 1 WLR 3289 at §80 (Lord Wilson: “within its overarching inquiry into the alleged violation of Convention rights, the court can, without constitutional impropriety, have regard to Parliamentary materials which explain the background to the Government’s decision and in particular its policy objectives”); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §60 (Lord Nicholls: “courts, when adjudicating upon an application for judicial review of a ministerial decision, may have regard to a ministerial statement made in Parliament”), §142 (Lord Hobhouse: “ministerial statements made in the House may be referred to when they are relevant to a question to be determined by a court. An example which immediately comes to mind is the ministerial statements concerning immigration policy which used to be made at the time when immigration law was largely extra-statutory”); R (March) v Secretary of State for Health [2010] EWHC 765 (Admin) (2010) 116 BMLR 57 at §§14-19 (impugned approach in reasons given to Parliament), §20(v) (court examines “the government’s reasoning process”, not to “reach conclusions on any inadequacy or lack of accuracy in the proceedings in Parliament. The role of the Court is limited to examining the decision under review”); Toussaint v Attorney General of Saint Vincent & the Grenadines [2007] UKPC 48 [2007] 1 WLR 2825 at §34 (statement in Parliament admissible “to explain executive action and to enable its judicial review”); R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 at §38 (Hansard relevant to see “how the system [of Ministerial tariff-setting] worked and still works”); Prebble v Television New Zealand Ltd [1995] 1 AC 321, 337B-F (use of Hansard to establish, “as a matter of history”, things said in Parliament); R (F (A Child) v SSHD [2010] UKSC 17 [2011] 1 AC 331 434

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(proportionality of statutory scheme) at §18 (legitimate to have recourse to Hansard in search for “additional background information tending to show, for instance, the likely impact of the statutory measure”); R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin) [2010] ICR 260 at §50 (“no constitutional impediment to the court receiving … material … for the purpose of informing itself as to the statutory history, the relevant considerations that led to the formulation of policy, the aim of the policy …, and the existence of factors that might be relevant to the assessment of [proportionality]”). 29.4.8 Hansard and the principle of legality. R v Forsyth [2011] UKSC 9 [2011] 2 AC 69 at §10 (Hansard can be used in applying the principle of legality, to ensure “nothing said … to suggest that the executive power being conferred was intended to permit fundamental human rights to be overridden”). 29.4.9 Hansard and vires of delegated legislation. See Pepper v Hart [1993] AC 593, 630H-631D and 635F-G, referring to Pickstone v Freemans Plc [1989] AC 66, 112B; and see Chief Adjudication Officer v Foster [1993] AC 754, 772B-E. 29.4.10 Using Hansard to identify the mischief. SJ & J Monk v Newbigin [2017] UKSC 14 [2017] 1 WLR 851 at §21 (relying on Hansard statement in support of identifying mischief); McDonnell v Congregation of Christian Brothers Trustees [2003] UKHL 63 [2004] 1 AC 1101 at §29 (Lord Steyn: “It is permissible to use Hansard to identify the mischief at which a statute is aimed”); R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 at §97 (considering Hansard and mischief); R (Munir) v SSHD [2012] UKSC 32 at §25 (relying on Hansard as to the intended scope of statutory and prerogative immigration powers); State of Mauritius v Khoyratty [2006] UKPC 13 [2007] 1 AC 80 at §17 (mischief to which constitutional section directed “made crystal clear in … parliamentary debates as reported in Hansard”); {29.1.5} (the mischief). 29.4.11 Hansard and purpose when implementing external source. R (Amicus – MSF Section) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin) [2004] ELR 311 at §62 (Richards J, discussing the “wider principle” applicable “when considering legislation implementing a Community obligation”), applying Pickstone at 112B-C (Lord Keith: “entirely legitimate for the purpose of ascertaining the intention of Parliament to take into account the terms in which the draft was presented by the responsible Minister and which formed the basis of its acceptance”). Three Rivers District Council v Bank of England (No 2) [1996] 2 All ER 363 (restrictions in Pepper v Hart applicable only where ordinary domestic legislation and the issue is the construction of certain sections; not where the issue is the wider purpose and object of the statute, such as questions whether the Act was consistent with EU legislation or sought to introduce into English law an EU Directive or international convention). 29.4.12 Hansard: purpose/width of discretionary power. R v Gul [2013] UKSC 64 [2014] AC 1260 at §39 (Hansard not an aid to statutory interpretation but providing “comfort”, that width of the statutory provision was “not ignored”); R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36 [2009] QB 114 at §43 (Hansard relevant to statutory purpose); R v Secretary of State for Education and Employment, ex p Liverpool Hope University College [2001] EWCA Civ 362 [2001] ELR 552 at §46 (Hansard used to decide whether defendant had frustrated the legislative purpose by defeating a clear and unambiguous statement of that purpose); R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349 (Hansard treated as only available to interpret purpose of discretionary power where “ambiguous”); R v Northumbrian Water Ltd, ex p Newcastle and North Tyneside Health Authority [1999] Env LR 715, 726-727 (Hansard crucial in determining width of discretion and legislative purpose); Pepper v Hart [1993] AC 593, 639A-B (“Hansard has frequently been referred to with a view to ascertaining whether a statutory power has been improperly exercised for an alien purpose or in a wholly unreasonable manner”); R v London (North) Industrial Tribunal, ex p Associated Newspapers Ltd [1998] ICR 1212, 1221A, 1223F-G (use of Hansard to discern the purpose of the provision). 435

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29.4.13 Hansard: whether a ‘categorical assurance’ as to the scope of the power. R (Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC 1546 (Admin) [2020] ACD 84 at §39 (no “categorical assurance that the power would not be used in the way it has been”), applying R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349 at 392 (Lord Bingham: “Only if a minister were … to give a categorical assurance to Parliament that a power would not be used in a given situation, such that Parliament could be taken to have legislated on that basis, [would] a parliamentary statement on the scope of a power … be properly admissible”); McDonnell v Congregation of Christian Brothers Trustees [2003] UKHL 63 [2004] 1 AC 1101 at §29 (Lord Steyn: “Pepper v Hart … is certainly at least authority for the proposition that a categorical assurance given by the government in debates as to the meaning of the legislation may preclude the government vis-a-vis an individual from contending to the contrary”). 29.4.14 Reliance on Select Committees. Office of Government Commerce v Information Commissioner [2008] EWHC 774 (Admin) [2010] QB 98 at §63 (views of Select Committee an illegitimate and irrelevant matter); R (Federation of Tour Operators) v HM Treasury [2007] EWHC 2062 (Admin) [2008] STC 547 (Select Committee reports and evidence inadmissible in relation to increase in air passenger duty) (CA is [2008] EWCA Civ 752 [2008] STC 2524); R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) at §54 (opinion of Select Committee not admissible on a question of fact for the Court, nor where opinion contested and impugned); R (Equitable Members Action Group) v HM Treasury [2009] EWHC 2495 (Admin) at §70 (DC not taking into account evidence to Parliamentary Select Committee); {17.1.13} (Parliamentary privilege).

29.5 Interpreting other instruments. Alongside statutes there are many other instruments and sources whose interpretation may be relevant and necessary in a judicial review claim. 29.5.1 Normal principles of interpretation. Lambeth LBC v Secretary of State for Communities and Local Government [2019] UKSC 33 [2019] 1 WLR 4317 (interpretation of planning permission) at §19 (“whatever the legal character of the document in question, the starting point – and usually the end point – is to find ‘the natural and ordinary meaning’ of the words used, viewed in their particular context (statutory or otherwise) and in the light of common sense”); Wood v Capita Insurance Ltd [2017] UKSC 24 [2017] AC 1173 (contractual interpretation) §10 (“The court’s task is to ascertain the objective meaning of the language”, but “not a literalist exercise”), §11 (“where there are rival meanings, the court can give weight to the implications of rival constructions”), §13 (“Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation” but “tools to ascertain the objective meaning of the language. … The extent to which each tool will assist the court in its task will vary according to the circumstances”); described in Actavis UK Ltd v Eli Lilly and Co [2017] UKSC 48 [2018] 1 All ER 171 at §58 as the “normal principles of interpreting documents”; Attorney-General of Belize v Belize Telecom Ltd [2009] UKPC 10 [2009] 2 All ER 1127 at §16 (“The court … is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors … would have intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed”); {16.4} (interpretation as a hard-edged question). 29.5.2 Purposive interpretation of delegated legislation. Adekola v NHS England [2019] EWCA Civ 1298 at §18 (Longmore LJ, explaining that statutory instrument “must … be given a purposive construction”). 29.5.3 Purposive interpretation of EU instrument. FMX Food Merchants Co Ltd v HMRC [2020] UKSC 1 [2020] 1 WLR 757 at §32 (describing the “starting point” in the interpretation of an EU law provision as “an examination of its purpose”); Ministry of Defence & Support for Armed Forces of the Islamic Republic of Iran v International Military Services Ltd [2020] EWCA Civ 145 [2020] 1 WLR 1726 at §26 (“When interpreting an EU instrument …, regard must be had to both wording and purpose”). 436

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29.5.4 Interpreting international instruments. R v Reeves-Taylor [2019] UKSC 51 [2019] 3 WLR 1073 at §23 (“The principles of international law governing the interpretation of treaties are to be found in articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969”); Al-Maki v Reyes [2017] UKSC 61 [2019] AC 735 at §11 (Lord Sumption, discussing the “primary rule of interpretation … laid down in article 31(1) of the Vienna Convention on the Law of Treaties”: interpretation of a treaty “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”), §67 (Lord Wilson); Anson v HMRC [2015] UKSC 44 [2015] 4 All ER 288 at §54 (interpretation in accordance with VCLT Arts 31 and 32), §56 (Lord Reed: “Put shortly, the aim of interpretation of a treaty is … to establish, by objective and rational means, the common intention which can be ascribed to the parties. That intention is ascertained by considering the ordinary meaning of the terms of the treaty in their context and in the light of the treaty’s object and purpose. Subsequent agreement as to the interpretation of the treaty, and subsequent practice which establishes agreement between the parties, are also to be taken into account, together with any relevant rules of international law which apply in the relations between the parties. Recourse may also be had to a broader range of references in order to confirm the meaning arrived at on that approach, or if that approach leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable”); R (Mullen) v SSHD [2004] UKHL 18 [2005] 1 AC 1 at §36 (search for the “true autonomous and international meaning”, “untrammelled by notions of its national legal culture” or “the ordinary use of English”), §50 (“a court may in appropriate cases have regard to travaux préparatoires in construing a treaty” but “such an aid is only helpful if the materials clearly and indisputably point to a definite treaty intention”); Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 703 (Lord Bingham, describing the importance of “the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure”); R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55 [2005] 2 AC 1 at §18 (Lord Bingham, referring to a “generous and purposive interpretation, bearing in mind its humanitarian objects and purpose”; but “the court’s task remains one of interpreting the written document to which the contracting states have committed themselves”), §17 (travaux as legitimate guide to interpretation, under VCLT Art 32), §19 (good-faith requirement, under VCLT Art 26); Re Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72 [2006] 1 AC 495 at §11 (Lord Scott); Assange v Swedish Prosecution Authority [2012] UKSC 22 [2012] 2 AC 471 at §67 (resort to subsequent practice in application of instrument, under VCLT Art 31.3(b)); R (Adams) v Secretary of State for Justice [2011] UKSC 18 [2012] 1 AC 48 at §15 (VCLT Art 33: alternative language versions), §18 (VCLT Art 32: recourse to travaux); R v SSHD, ex p Read [1989] AC 1014, 1053E-F (Explanatory Report on a Convention, “available as an aid to construction as part of the ‘travaux préparatoires’ and under article 31 of VCLT”). 29.5.5 Interpreting the ECHR. In re McCaughey [2011] UKSC 20 [2012] 1 AC 725 at §136 (Lord Dyson: “The Convention is a ‘living instrument’ which evolves over time as a result of interpretative decisions of the ECtHR”); N v SSHD [2005] UKHL 31 [2005] 2 AC 296 at §21 (Lord Hope: “humanitarian principles … may also be used to enlarge the scope of the Convention beyond its express terms. … The question must always be whether the enlargement is one which the contracting parties would have accepted and agreed to be bound by”); R v DPP, ex p Kebilene [2000] 2 AC 326, 375A-C (Lord Hope, describing the ECHR as one of those “instruments [which] call for a generous interpretation suitable to give to individuals the full measure of the fundamental rights and freedoms referred to”). 29.5.6 Interpreting the immigration rules. R (W) v SSHD [2020] EWHC 1299 (Admin) at §43, applying Mahad v Entry Clearance Officer [2009] UKSC 16 [2010] 1 WLR 48 at §10 (Lord Brown: “The [immigration] Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words, recognising that they are statements of the Secretary of State’s administrative policy”); R (Nesiama) v SSHD [2018] EWCA Civ 1369 [2019] 1 WLR 463 at §29 (approach to interpretation of the immigration rules); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §17 (nature of the 437

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immigration rules); MW (USA) v Entry Clearance Officer [2016] EWCA Civ 1273 [2017] 1 WLR 1556 at §37 (purposive interpretation of immigration rule); AA (Somalia) v Entry Clearance Officer [2013] UKSC 81 [2014] 1 WLR 43 at §14; ZN (Afghanistan) v SSHD [2010] UKSC 21 [2010] 1 WLR 1275 at §21. 29.5.7 Interpreting directions/instructions/schemes. R (D2M Solutions Ltd) v Secretary of State for Communities and Local Government [2017] EWHC 3409 (Admin) [2018] PTSR 1125 at §35 (compensation scheme to be interpreted “purposively”); R (Ariemuguvbe) v Islington LBC [2009] EWCA Civ 1308 [2010] HLR 254 at §24 (“a local authority housing allocation scheme … has to be read in a practical, common sense, and not a legalistic way”); R (KR) v Secretary of State for Work and Pensions [2008] EWHC 1881 (Admin) at §13 (directions to be interpreted in a common sense manner); R v Director of Passenger Rail Franchising, ex p Save Our Railways [1996] CLC 589, 601B (instructions had to be read in a practical, down-to-earth way), applied in R (Parratt) v Secretary of State for Justice [2009] EWHC 3089 (Admin) [2010] 1 WLR 1848 at §33 (as to parole review policy). 29.5.8 Interpreting public documents. R (Squire) v Shropshire Council [2019] EWCA Civ 888 [2020] 1 CMLR 2 at §43 (Lindblom LJ, describing the approach to interpreting “public documents”, such as an environmental permit: “One must start with the words used in framing the document, reading them objectively and in their full context, without straining their natural and ordinary meaning beyond what the context requires, but with appropriate caution where … a breach of condition may lead in the end to criminal proceedings. Using other documents as aids to construction is permissible if they are incorporated by reference or it is necessary to resolve some ambiguity within the document itself”, referring to Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74 [2016] 1 WLR 85 at §§32-39, 52-66); UBB Waste Essex Ltd v Essex County Council [2019] EWHC 1924 (Admin) at §§26-34 (surveying the case law on interpretation of planning permissions and conditions); R (Harvey) v Mendip District Council [2017] EWCA Civ 1784 at §36 (explanatory text in Local Plan an aid to construction); R (Eatherley) v Camden LBC [2016] EWHC 3108 (Admin) [2017] PTSR 288 at §46 (“ordinary rules of statutory interpretation” governing interpretation of permission laid down in a statutory instrument); R (English Bridge Union Ltd) v English Sports Council [2015] EWHC 2875 (Admin) [2016] 1 WLR 957 (interpretation of Royal Charter); {16.4.6} (interpretation a question for the Court: other instruments/public documents). 29.5.9 Interpreting policy guidance. R (Cotter) v National Institute for Health and Care Excellence [2020] EWCA Civ 1037 at §41 (Males LJ: policy document “for determination by the court, interpreting the document objectively in accordance with the language used, and bearing in mind that a policy document is not to be read as if it were a statute or contract”); R (DJ) v Welsh Ministers [2019] EWCA Civ 1349 [2020] PTSR 466 at §72 (“must be read as a whole and construed objectively bearing in mind that it is not a statute, but an expression of administrative policy”); R (O) v SSHD [2016] UKSC 19 [2016] 1 WLR 1717 at §31 (immigration detention policy “should be interpreted with regard to its context and purpose” not “subjected to the fine analysis appropriate to a statute … nor invested with a spurious degree of precision”); R (Britwell Parish Council) v Slough Borough Council [2019] EWHC 988 (Admin) [2019] ACD 70 at §34 (“The Guidance should be read fairly, and as a whole, and in context. The Guidance is not to be construed as if it were a statute or a contract but its provisions are nevertheless intended to, and do, have legal meaning and are intended to guide the decision-maker as to how to exercise its statutory powers”); {16.4.3}-{16.4.5} (interpretation of policy: a question for the Court). 29.5.10 Interpreting planning policy. Holborn Studios Ltd v Hackney LBC [2020] EWHC 1509 (Admin) at §43 (Dove J: “Where a question of interpretation of planning policy does genuinely arise for the court, in approaching that question the court must bear in mind that the policy is not a statute or other formal legal instrument, but is intended to be a practical aid to decision-taking. These documents are statements of policy and their purpose and intended audience (being both professionals and the wider public) must be taken into account in assessing any question of interpretation which arises. The policy should be read and interpreted in a straightforward manner, taking into account the context in which it arises”); 438

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R (Clientearth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin) at §104 (Holgate J: “Planning policies should not be interpreted as if they were statutory or contractual provisions. They are not analogous in nature or purpose to a statute or a contract. Planning policies are intended to guide or shape practical decisionmaking, and should be interpreted with that purpose in mind. They have to be applied and understood by planning professionals and by the public to whom they are primarily addressed. Decision-makers are entitled to expect both national and local planning policy to be as clearly and simply stated as it can be and, however well or badly it may be expressed, the courts to provide a straightforward interpretation of such policy”); Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669 [2019] PTSR 1714 at §22; Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37 [2017] 1 WLR 1865 at §§22-23 (Lord Carnwath), §72 (Lord Gill), each endorsing Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 [2012] PTSR 983 at §18 (Lord Reed: planning policy statements “should be interpreted objectively in accordance with the language used, read always in its proper context”), §19 (planning policies not to be “construed as if they were statutory or contractual provisions”); {16.4.4} (interpretation of policy a question for the Court: planning). 29.5.11 Interpretation as a hard-edged question. {16.4}

439

P30 Function. Sound appreciation of the functional role, responsibilities and realities of an impugned public authority is essential to well-directed judicial review. 30.1 The public authority’s function

30.1 The public authority’s function. A sound understanding of the defendant public authority’s function is essential in deciding whether its conduct is reviewable and, if so, warrants interference by the Court in its supervisory jurisdiction. Functional insight is essential to the Court’s approach, complementing the contextualism which is the hallmark of judicial review. But simplistic functional labels and bright-line distinctions have been consigned to history. 30.1.1 The importance of understanding function. {34.2.4} (emphasis is on function not office/status); {34.2.7} (public function indicates reviewability: consensual powers indicate non-reviewability); {P27} (public/private law). 30.1.2 Functional insight: illustrations. Turner v Secretary of State for Communities and Local Government [2015] EWCA Civ 582 at §18 (inspector’s role having “a strong inquisitorial dimension”); R v Chief Registrar of Friendly Societies, ex p New Cross Building Society [1984] QB 227, 264H (registrar “engaged in an inquisitorial, not an adversarial, process”); R v General Council of the Bar, ex p Percival [1991] 1 QB 212, 234D-E (“the limits of review” depend on “the powers, functions and procedures of the body concerned”); Vine v National Dock Labour Board [1957] AC 488, 512 (Lord Somervell: “In deciding whether a ‘person’ has power to delegate one has to consider the nature of the duty and the character of the person”); Local Government Board v Arlidge [1915] AC 120, 136 (courts not “blind to the well-known facts applicable … to the working of … branches of the Executive”); Bushell v Secretary of State for the Environment [1981] AC 75, 95E-96A (fairness “to be judged … in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached”); R (Maxwell) v Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1236 [2012] PTSR 884 at §33 (OIA not required to make findings on discrimination claim), §23 (analysing OIA’s reviewing function); R v Monopolies & Mergers Commission, ex p South Yorkshire Transport Ltd [1993] 1 WLR 23 {16.4.9}; R v DPP, ex p Thom [1995] COD 194 (DPP’s function in extradition proceedings not that of prosecutor but as lawyer for the foreign government concerned). 30.1.3 Function and procedural fairness. Local Government Board v Arlidge [1915] AC 120, 132 (Viscount Haldane LC: “what [a fair] procedure is to be in detail must depend on the nature of the tribunal”); Bushell v Secretary of State for the Environment [1981] AC 75 (fairness assessed with an accurate understanding of purpose of public inquiry); R (Associated Newspapers Ltd) v Lord Justice Leveson [2012] EWHC 57 (Admin) [2012] ACD 23 at §35 (duty of fairness “inexorably tied up with what [the decision-maker] is retained to do”, so that “the starting point … is the task which he was appointed to perform”); R (Lewis) v Redcar & Cleveland Borough Council (No 1) [2008] EWCA Civ 746 [2009] 1 WLR 83 at §69 (function of planning committee in deciding approach to apparent bias); McInnes v OnslowFane [1978] 1 WLR 1520 (distinguishing licensing cases based on whether concerning application, forfeiture or expectation cases, with heightened fairness obligations arising in relation to forfeiture, and expectation cases as an intermediate category) {61.1.12} (the McInnes classification); {61.2} (procedural fairness as a flexi-principle). 30.1.4 Function and reasonableness. In Re Duffy [2008] UKHL 4 at §25 (mediation and reconciliation role of Parades Commission key to reasonableness of appointments); Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255,

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1265G (inspector’s own impressions were not an irrelevancy: “Part of his function lies in his own knowledge of the subject”); United Kingdom Association of Professional Engineers v Advisory Conciliation & Arbitration Service [1981] AC 424, 442C-F (unreasonableness involving asking whether “no reasonable person charged with the body’s responsibilities under the statute could have exercised its power in the way that it did”). 30.1.5 Function and statutory interpretation/duty. R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871 at §80 (nature of public sector equality duty “due regard” described as “shaped by the function being exercised”); Bromley LBC v Greater London Council [1983] 1 AC 768, 822H-823A (“[the] structural characteristics of the GLC need to be borne in mind in applying … a purposive construction to the [statute]”); R v HM Attorney-General for Northern Ireland, ex p Devine [1992] 1 WLR 262, 267E-F (Lord Goff, rejecting a statutory interpretation which “would impose an extraordinary fetter upon a tribunal whose function is to ascertain the truth by an inquisitorial process”). 30.1.6 Escaping from over-rigid categories. Bank Mellat v Her Majesty’s Treasury (No 2) [2011] EWCA Civ 1 [2012] QB 101 at §95 (Elias LJ (dissenting in the result): “The history of judicial review shows the courts seeking to escape from the fetter of over rigid categories, such as limiting natural justice to judicial and not administrative acts, or judicial and quasi judicial acts; or depriving the courts of judicial review altogether where the source of the power was common law (prerogative) rather than statute. The focus must be on the particular character of the act in question”) (SC is [2013] UKSC 38 [2014] AC 700); {31.4} (‘flexi-principles’); R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 at §41 (Sedley LJ, referring to an argument seeking to distinguish cases as involving “adjudication”: “To collapse substance into form in this way would be to invert the logic of modern public law and to turn it back towards the arid categories of judicial, quasi-judicial, administrative and discretionary acts which dogged it in its postwar resurgence”); {2.1.33} (in public law substance matters more than form: Lord Steyn’s observation); {P31} (context). 30.1.7 ‘Judicial’/‘administrative’. {34.3.2} (judicial review of administrative (not just judicial/quasi-judicial) functions); R v Secretary of State for Education, ex p S [1994] ELR 252 (Sedley J) at 268E-F (“While public law has moved well beyond any formal classification of obligations according to whether a proceeding is administrative or judicial or something in between, it is recognised that there is a continuum of public functions along which duties of openness in decision-making vary. All, however, are subject to the duty memorably described by Lord Loreburn LC in Board of Education v Rice”), referring to Board of Education v Rice [1911] AC 179, 182 (“they must … fairly listen to both sides”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1160E (Lord Hailsham, referring to fairness in the context of the “wide range of authorities, judicial, quasi-judicial, and … administrative”); Champion v Chief Constable of the Gwent Constabulary [1990] 1 WLR 1, 15H (“an administrative discretion … reviewable on Wednesbury principles”); Stefan v General Medical Council [1999] 1 WLR 1293, 1301H-1302B (“the fact that an administrative function is being performed does not exclude the possibility that reasons may require to be given for a decision. … But the carrying out of a judicial function remains … ‘a consideration in favour of a requirement to give reasons’”). 30.1.8 ‘Judicial’/‘administrative’ and procedural fairness/Art 6. Archie v Law Association of Trinidad and Tobago [2018] UKPC 23 at §35 (referring to “a judicial or quasijudicial determination of legal rights and liabilities to which the conventional rules of natural justice apply”), §38 (“However, even if the rules of natural justice applicable to the decisions of a judicial or quasi-judicial body do not apply, public authorities do have a duty to carry out their statutory functions fairly”); Board of Education v Rice [1911] AC 179, 182 (Lord Loreburn, recognising that even for a “determination … of an administrative kind … they must … fairly listen to both sides”); Amec Civil Engineering Ltd v Secretary of State for Transport [2005] EWCA Civ 291 [2005] 1 WLR 2339 at §§47-48 (CA referring to the rules of ‘natural justice’ as applicable to those acting judicially); Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430 (approaching the HRA:ECHR Art 6 requirements of independence 441

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as being contextual, with judicial review readily ensuring compatibility in the context of an “administrative” decision-making context); R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 at §50 (analysing the extent to which tariff-setting for mandatory lifers was a “judicial” function, in order to decide the proper impact of HRA:ECHR Art 6); Wiseman v Borneman [1971] AC 297, 308B (“Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances”); Engineers & Managers Association v Advisory Conciliation & Arbitration Service [1980] 1 WLR 302, 317D (“a judicial element substantial enough to impose … the obligations of natural justice”); Re HK (An Infant) [1967] 2 QB 617, 630B-C (“even if an immigration officer is not in a judicial or quasi-judicial capacity, he must … act fairly”); In re Pergamon Press Ltd [1971] Ch 388, 399H (“the inspectors must act fairly. This is a duty which rests on them, as on many other bodies, even though they are not judicial, nor quasi-judicial, but only administrative”); R v Commission for Racial Equality, ex p Hillingdon LBC [1982] AC 779, 787F-G (presumption of need for fairness applicable to functions of an administrative body); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1160E (Lord Hailsham, referring to fairness in the context of “a wide range of authorities, judicial, quasi-judicial, and … administrative”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 407E-F (“ancient restrictions in the law relating to the prerogative writs and orders have not prevented the courts from extending the requirement of natural justice, namely the duty to act fairly, so that it is required of a purely administrative act”); Pearlberg v Varty [1972] 1 WLR 534, 542H (“Whether the commissioner’s function in deciding to give leave is to be described as judicial or administrative, he must obviously act fairly”); R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 323g-324g (apparent bias not limited to “judicial or quasi-judicial proceedings”). 30.1.9 ‘Quasi-judicial’ an unhelpful label. Vine v National Dock Labour Board [1957] AC 488, 510-511 (Lord Somervell: “the functions of a local board under these provisions have been said to be judicial or quasi-judicial and this has been regarded as conclusive on the question whether the functions could be delegated. … The phrase ‘quasi-judicial’ suggests that there is a well-marked category of activities to which certain judicial requirements attach. An examination of the cases shows, I think, that this is not so … [In fact] the administrative and quasi-judicial functions are closely intermingled”); Race Relations Board v Charter [1973] AC 868, 901F-G (Lord Simon (in a different context): “The word ‘quasi’ is apt to confuse rather than clarify; though it may legitimately be used to denote a twilight area and to signify to which of the neighbouring areas the situation in question is more akin”); R v Commission for Racial Equality, ex p Hillingdon LBC [1982] AC 779, 787F-G (Lord Diplock: “I do not think that in administrative law as it has developed over the last 20 years attaching the label ‘quasi-judicial’ to it is of any significance”). 30.1.10 ‘Inferior’ tribunal/court. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 414D-F (Lord Roskill: “Historically the use of the old prerogative writs of certiorari, prohibition and mandamus was designed to establish control by the Court of King’s Bench over inferior courts or tribunals”); {34.4.1} (no judicial review of the High Court); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 182C (“inferior tribunal” as “a categorising but not a derogatory description”); In re McC (A Minor) [1985] AC 528 (statutory liability of magistrates in damages), 541H-542A (Lord Bridge: “Whatever the juridical basis for the distinction between superior and inferior courts in this regard, and however anomalous it may seem to some, the distinction unquestionably remains part of the law affecting justices and will continue to do so as long as the language of … [the relevant section] remains in legislative force”). 30.1.11 Position of privatised body. R v Northumbrian Water Ltd, ex p Newcastle and North Tyneside Health Authority [1999] Env LR 715, 724 (water company “carries out functions which can be described as public”, but “as a commercial organisation [it] cannot be said to possess powers solely in order that it may use them for the public good”), 729 (“it does not have the same duty that a public body, which is not a commercial undertaking, has. It is entitled to look to the interests of its shareholders”). 442

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30.1.12 Analysing interrelated functions: illustrations. R (JJ Management LLP) v HMRC [2020] EWCA Civ 784 [2020] 3 WLR 545 at §43 (Revenue having alternative investigative powers); R (Wolverhampton Council) v South Worcestershire Clinical Commissioning Group [2018] EWHC 1136 (Admin) [2018] ACD 65 (dispute as to which of three public authorities liable to fund an individual’s care costs); R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46 [2016] AC 137 (analysing which local authority responsible for individual’s care needs); R (Cornwall Waste Forum St Dennis Branch) v Secretary of State for Communities and Local Government [2012] EWCA Civ 379 at §4 (allocation of responsibility between Secretary of State and Environment Agency, as to assessment under Habitats Regulations); R (Lewis) v Mid and North Shropshire Coroner [2009] EWCA Civ 1403 [2010] 1 WLR 1836 (coroner and jury); R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 (social services and housing authorities); R (L (A Minor)) v Governors of J School [2003] UKHL 9 [2003] 2 AC 633 (school and appeal panel); R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2003] UKHL 58 [2004] 2 AC 280 (mental health review tribunal and social worker); R v Northavon District Council, ex p Smith [1994] 2 AC 402, 408D (district and county councils).

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P31 Context. Judicial review principles are fact-responsive: context is everything. 31.1 ‘Context is everything’ 31.2 Circumstances 31.3 Conduct and characteristics of the claimant 31.4 ‘Flexi-principles’

31.1 ‘Context is everything’. The delineation, articulation and application of administrative law principles depends on the context. The outcome of a judicial review claim depends on its particular facts and circumstances. Lord Steyn said it all. 31.1.1 ‘Context is everything’: Lord Steyn’s maxim. R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §28 (Lord Steyn: “In law context is everything”); R (Miller) v College of Policing [2020] EWHC 225 (Admin) at §240 (Julian Knowles J, applying Lord Steyn’s maxim); also applied in In re JR 38 [2015] UKSC 42 [2016] AC 1131 at §114 (Lord Clarke); R (Adams) v Secretary of State for Justice [2011] UKSC 18 [2012] 1 AC 48 (Lord Clarke); Tweed v Parades Commission for Northern Ireland [2006] UKHL 5 [2007] 1 AC 650 at §26 (Lord Carswell); R (G) v London Borough of Ealing [2002] EWHC 250 (Admin) at §16 (applying Lord Steyn’s maxim in relation to intensity of review and the need for oral evidence and cross-examination); R (Howard League for Penal Reform) v SSHD [2002] EWHC 2497 (Admin) [2003] 1 FLR 484 at §139(ii) (applying Lord Steyn’s maxim to the application of the Children Act 1989 to detainees); R (British American Tobacco) v Secretary of State for Health [2004] EWHC 2493 (Admin) at §27 (applying Lord Steyn’s maxim). 31.1.2 Context: other observations. Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §51 (Lord Mance: “The nature of judicial review in every case depends on the context”), endorsed in Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §60); Helow v SSHD [2008] UKHL 62 [2008] 1 WLR 2416 at §4 (“The context is crucially important”); Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA Civ 678 [2010] IRLR 786 at §55 (Sedley LJ: “Abuses of power, which are what all public law is at root about, are not best detected by tick-list. As Lord Greene had said … ten years before he decided the Wednesbury case: ‘The desire for simplification is a perennial weakness of the human mind, even the mind of judges; and the temptation to take a statement of principle out of its context of fact is one always to be resisted … by those who fully understand the proper use of precedent in the judicial method’”); cf Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 [2004] 1 WLR 1057 at §2 (Lord Steyn, describing public authority negligence as “a subject on which an intense focus on the particular facts and on the particular statutory background, seen in the context of the contours of our social welfare state, is necessary”). 31.1.3 Court’s responsibility depends on the context. AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §142 (Lord Reed: “The courts … have the responsibility of ensuring that the public authority in question does not misuse its powers or exceed their limits. The extent of the courts’ responsibility in relation to a particular exercise of power by a public authority necessarily depends upon the particular circumstances, including the nature of the public authority in question, the type of power being exercised, the process by which it is exercised, and the extent to which the powers of the public authority have limits or purposes which the courts can identify and adjudicate on”). 31.1.4 Context and procedural fairness. {61.2} (procedural fairness as a flexi-principle); R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §39 (Ryder LJ: “What fairness requires in a particular situation depends upon the context”); R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §85 (“It is well established that what fairness requires depends on the particular context, both legal and factual”); R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at

P31 Context

§90 (“the content of the duty … of … consultation … is fact-specific and can vary greatly from one context to another, depending on the particular provision in question, including its context and purpose”); R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52 at §49 (Lord Reed: “the common law duty to give reasons for a decision is context-specific”); Calvin v Carr [1980] AC 574, 592G (as to curing procedural unfairness, need for “examination of the whole hearing structure, in the context of the particular activity to which it relates”); {61.4} (procedural ultra vires); {61.3.10} (supplementing the Act: case-specific or blanket duty?). 31.1.5 Context and standing. R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §111 (“The test for standing is discretionary and not hard-edged”); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §170 (Lord Reed: “In some contexts, it is appropriate to require an applicant for judicial review to demonstrate that he has a particular interest in the matter complained of: the type of interest which is relevant, and therefore required in order to have standing, will depend upon the particular context. … What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends … upon the context, and in particular upon what will best serve the purposes of judicial review in that context”); {P38} (standing). 31.1.6 Context and proportionality/scrutiny. R (EU Lotto Ltd) v Secretary of State for Digital Culture Media and Sport [2018] EWHC 3111 (Admin) [2019] 1 CMLR 41 at §49 (Gross and Green LJJ: “the practical application of the proportionality test [is] fact and context specific” as to “both (i) the intensity of the review process to be applied to the evidence by the Court and (ii) the breadth of the margin of appreciation or discretion to be accorded”); DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301 at §74 (Lord Kerr: “proportionality depends on context”); Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §71 (Lord Reed: “the degree of restraint practised by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision-maker, will depend on the context”), applied in Beghal v DPP [2015] UKSC 49 [2016] AC 88 at §75; General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 at §37 (Lord Mance, referring to judicial review’s “ability to cater, in appropriate circumstances, for close examination of a claim on its merits”); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §92 (intensity of review informed by “whether the measure … has been approved by Parliament and, if so, with what degree of scrutiny”, citing Bank Mellat at §44 and JS [2015] UKSC 16 [2015] 1 WLR 1449 at §95); R (Tracey) v Cambridge University Hospitals NHS Foundation Trust [2014] EWCA Civ 822 [2015] QB 543 at §31 (“what is required by respect for an article 8 right is highly contextual”). 31.1.7 Contextual application of judicial review principles: illustrations. R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin) [2020] 4 WLR 4 at §66 (in relation to reviewability “context is all”); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §90 (intensity of reasonableness review “will vary according to the context”); Simone v Chancellor of the Exchequer [2019] EWHC 2609 at §61 (“the application of the public sector equality duty will differ from case to case depending upon the function being exercised and the facts of the case”); R (Macrae) v Herefordshire District Council [2012] EWCA Civ 457 at §12 (“Whether an application for permission to apply for judicial review is made promptly will depend upon all the circumstances”); R (Stamford Chamber of Trade & Commerce) v Secretary of State for Communities & Local Government [2010] EWCA Civ 992 at §13 (“The determination of legitimate expectations is extremely sensitive to the facts of the particular case”); British Sky Broadcasting Group Plc v Competition Commission [2010] EWCA Civ 2 [2010] 2 All ER 907 at §30 (Lloyd LJ: “It is well established that courts apply judicial review principles in different ways according to the subject matter under consideration, and that there are some cases in which courts apply a greater intensity of review than in others”); R (Barclay) v Lord Chancellor [2009] UKSC 9 [2010] 1 AC 464 at §56 (application of HRA:ECHR A3P1 varying in accordance 445

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with historical and political factors); R v Secretary of State for the Department of Environment, ex p London Borough of Islington (1991) [1997] JR 121, 123 (approach to disclosure “depends to a large extent on the actual circumstances of the case”); R v DPP, ex p Camelot Group Plc (1998) 10 Admin LR 93, 104C (importance of flexibility in relation to declarations regarding criminal conduct); R v SSHD, ex p Pierson [1998] AC 539, 592B (as to severability: “Always the context will be determinative”); R v Secretary of State for Health, ex p Eastside Cheese Company [1999] EuLR 968, 985F (proportionality principle “must be related to the particular situation in which it is invoked”); {29.1.4} (statutory interpretation: the meaning/purpose from the context); {34.4.14} (acts of high policy: nature and subject-matter); {33.1.8} (the incremental approach: case-by-case development); {56.1.9} (relevancy/irrelevancy and context/practical realities). 31.1.8 Cases turning on their facts. {11.1.5}

31.2 Circumstances.80 The Court will look closely at all the circumstances of the individual case, in operating the principled flexibility of judicial review. Alongside appreciating the public authority’s function and latitude, the reviewing Court will strive to understand the situation in which that authority was acting. That includes considering the position, generally viewed from the decision-maker’s point of view and at the relevant time, to decide whether there was a ‘public law wrong’ warranting intervention. 31.2.1 ‘Context is everything’. {31.1} 31.2.2 ‘Flexi-principles’. {31.4} 31.2.3 Looking at all the circumstances. Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1220, 1230G (Lord Mustill, speaking of availability of judicial review of committal for receipt of inadmissible evidence: “As with many problems of judicial review, this question does not admit of an outright answer. Everything depends on the circumstances”); R (Health & Safety Executive) v Wolverhampton City Council [2010] EWCA Civ 892 [2011] PTSR 645 at §66 (Longmore LJ: “whereas brightline rules are useful (and often necessary) in private law, they tend to be much more troublesome in public law”); R (Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 [2020] QB 1 at §179 (discussing judicial review under the HRA: “How much respect should be given [to the views of the executive or of Parliament] will depend on all the circumstances”); R (Holmcroft Properties Ltd) v KPMG LLP [2018] EWCA Civ 2093 at §48 (need to consider “all the circumstances” in deciding whether defendant amenable to judicial review); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §90 (intensity of review “will depend on the circumstances”); R v Secretary of State for Health, ex p London Borough of Hackney 25 April 1994 unreported (Buxton J: “The actual application of the orthodox principles of judicial review will of course vary according to the subject-matter of the case and, in particular, according to the specific administrative function under review”); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1047G (Lord Wilberforce: “there is no universal rule as to the principles on which the exercise of a discretion may be reviewed: each statute or type of statute must be individually looked at”); Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at §25 (whether real danger of bias depending on all the circumstances); R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §112 (“the courts … have developed an issue-sensitive scale of intervention”); R (Watkins-Singh) v Aberdare Girls High School Governors [2008] EWHC 1865 (Admin) [2008] 3 FCR 203 at §162 (decision unjustified in the special circumstances). 31.2.4 Circumstances in which defendant was acting: general. {13.6} (review from the decision-maker’s point of view); DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301 at §76 (Lord Kerr, describing the “definite area 80The

equivalent paragraph in a previous edition was relied on in Halim v Director of Immigration [2010] HKCFI 966 at §25 (Hon Saunders J).

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of discretionary judgment” to be allowed to the police: “Difficulties in making policing decisions should not be underestimated, especially since these frequently require to be made in fraught circumstances”); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §78 (defendant having to “act in accordance with the harsh practical realities to protect the public interest”); E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66 [2009] AC 536 at §58 (police “uniquely placed through their experience and intelligence to make a judgment on the wisest course to take in all the circumstances”); R (CPS) v Reading and West Berkshire Magistrates’ Court [2010] EWHC 3260 (Admin) at §25 (“the circumstances have to be considered” when considering adequacy of magistrates’ reasons on an application made at 7.40pm: “A detailed exposition … could not reasonably be expected at that time”); R (Legal Remedy UK Ltd) v Secretary of State for Health [2007] EWHC 1252 (Admin) at §128 (very difficult issues with far-reaching implications and irreconcilable interests); R v Personal Investment Authority Ltd, ex p Lucas Fettes and Partners (Financial Services) Ltd [1995] OPLR 187, 191G-H (“a serious crisis”); R v Commission for Racial Equality, ex p Hillingdon LBC [1982] AC 779, 784B (combatting covert racism); Engineers & Managers Association v Advisory Conciliation & Arbitration Service [1980] 1 WLR 302, 320D (a “confused situation”). 31.2.5 Circumstances of urgency. R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §258 (approaching PSED compliance “bearing in mind … the extreme urgency with which the defendant had to act in response to the [Covid-19] pandemic”); R (Article 39) v Secretary of State for Education [2020] EWHC 2184 (Admin) at §74 (Covid-19 “an unprecedented situation”), §83 (“the extreme urgency and the scale of the issues”); R (Shaw) v Secretary of State for Education [2020] EWHC 2216 (Admin) at §§105-106 (no duty to consult given Covid-19 and “the urgency of the situation”); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §61 (“degree of urgency” did not “necessitate a truncation of the requirements of fairness to the extent that occurred here”); BX v SSHD [2010] EWCA Civ 481 [2010] 1 WLR 2463 (urgent control order modification and rights to a hearing), §53 (situations where “the Secretary of State is required to act urgently in the public interest”); R (Lunn) v HMRC [2011] EWHC 240 (Admin) [2011] STC 1028 at §51 (“the alleged need for urgency did not justify” denial of “the opportunity to make representations before any decision to terminate was taken”); Langley v Liverpool City Council [2005] EWCA Civ 1173 [2006] 1 WLR 375 at §76 (urgent state intervention in family life); Wiseman v Borneman [1971] AC 297, 308F-G (need for “a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him”); Durayappah v Fernando [1967] 2 AC 337, 346A (“while great urgency may rightly limit such opportunity timeously, perhaps severely, there can never be a denial of that opportunity if the principles of natural justice are applicable”); Pickwell v Camden LBC [1983] QB 962, 989E (“a decision taken in an emergency must not be scrutinised as closely as one taken not under such pressure”), 990H; R v Eastleigh Borough Council, ex p Betts [1983] 2 AC 613, 621E-G (in the housing context, need for “speedy solutions to questions of doubt”); R v Rochdale Metropolitan Borough Council, ex p Brown [1997] Env LR 100 (need for urgency not justifying failure to make copy documents available to the claimant or to put summary representations before committee members); R v SSHD, ex p Moon (1996) 8 Admin LR 477 (urgency not justifying unfairness); R v Life Assurance and Unit Trust Regulatory Organisation, ex p Ross [1993] QB 17 (having decided to serve notice urgently, no obligation to allow/consider representations prior to doing so); R v Brent Health Authority, ex p Francis [1985] QB 869, 879C-D (in urgent circumstances, chairman having authority to act, subsequently ratified by committee); A v B Bank (Governor and Company of the Bank of England Intervening) [1993] QB 311, 324C-D, 325D (Bank of England’s need to act with urgency); In re Evans [1994] 1 WLR 1006, 1008D (“Extradition treaties and legislation are designed to combine speed and justice”); R v Secretary of State for Education and Employment and the North East London Education Authority, ex p M [1996] ELR 162, 206A-210D (consultation and urgency); R (Amvac Chemical UK Ltd) v Secretary of State for Environment, Food and Rural Affairs [2001] EWHC 1011 (Admin) at §§54-64 (urgency, but nevertheless failure to give fair and prompt warning and opportunity for comment). 447

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31.2.6 Limited resources/allocating resources. R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502 at §56 (“The allocation of scarce or finite public resources is inherently a matter which calls for political judgement. This does not mean that the courts have no role to play but it does mean that they must tread with caution, affording appropriate weight and respect to the judgement formed by the executive or the legislature”); R (Coll) v Secretary of State for Justice [2017] UKSC 40 [2017] 1 WLR 2093 at §40 (Lady Hale: “Saving cost is, of course, a legitimate objective of public policy. But … ‘budgetary considerations cannot justify discrimination’. In other words, if a benefit is to be limited in order to save costs, it must be limited in a non-discriminatory way”); R (SB) v NHS England [2017] EWHC 2000 (Admin) [2018] PTSR 576 at §65 (irrational to refuse funding for drug treatment for child with rare metabolic condition); A v Essex County Council [2010] UKSC 33 [2011] 1 AC 280 at §50 (need to approach A2P1 right to education “in the context of the system available and to recognise that solutions take time and money to put in place”), §86 (having “regard to the limited resources actually available”); R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 2 AC 418, 1268F-H (referring to “the undesirability of the court stepping in too quickly” in cases “where the use of limited resources has to be decided”); {56.1.11} (whether/how limited resources are relevant); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §§89, 126 (relevance of judicial resources to the ambit of judicial review of the Upper Tribunal); R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 [2003] 1 WLR 127 at §76 (“If tribunals do not have the time and back-up resources that they need to discharge their statutory obligation to provide adequate reasons, then the time and resources must be found”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §55 (“funding is the subtext of what this case is about”), §121; {13.5.2} (judicial restraint: expenditure/resources/distribution); {64.3.15} (reasons and resources). 31.2.7 Competing considerations and “polycentric” questions. R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502 at §79 (“polycentric” issue where prioritising public expenditure, which “point goes to the relative institutional competence of the [defendant] as compared with the Court”); R (JJ Management LLP) v HMRC [2020] EWCA Civ 784 [2020] 3 WLR 545 at §59 (Simler LJ, describing investigative decisions as “typically ‘polycentric’ in nature, involving a balance of policy and public interest considerations which are inter-connected”); WM Morrisons Supermarket Plc v Hounslow LBC [2018] EWHC 3426 (Admin) at §5 (“Different policies covering different topics in a development plan may well pull in different directions”); R (McDonagh) v Hackney LBC [2012] EWHC 373 (Admin) at §26 (judicial restraint appropriate in considering “a challenge to a policy … designed to ration a scarce resource, in which there would be competing arrangements and potential winners and losers whatever policy was chosen, a situation commonly called ‘polycentric’ in the academic literature”); R v Criminal Injuries Compensation Board, ex p P [1995] 1 WLR 845, 857E-G (describing “decisions [which] involve a balance of competing claims on the public purse and the allocation of economic resources” as involving “a polycentric task … perhaps most easily explained by thinking of a spider’s web: ‘A pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole …’”); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 at §31 (referring to polycentric questions); R v Entry Clearance Officer Bombay, ex p Amin [1983] 2 AC 818, 828F-G (function involving “weighing the needs of one applicant against those of others who are in competition with him”); Din (Taj) v Wandsworth LBC [1983] 1 AC 657, 663H (“every allocation of priority housing to homeless persons must have the effect of deferring the hopes of persons in other categories, some of whom may have been waiting for a long time”), 674F-G (“the real contest here is not between the homeless citizen and the state: the duty of the housing authority is to hold the balance fairly among all homeless persons and to exercise a fair discretion according to law”); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 (impugned licensing decision involving allocation of fishing licences to others, yet judicial review still successful).

448

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31.3 Conduct and characteristics of the claimant. Circumstances relating to the claimant are relevant to the question of standing to bring the judicial review claim, but also to the questions whether there are grounds for intervention and whether the Court should grant a remedy. A familiar problem in judicial review is where claimants raise with the judicial review Court points (or evidence) which were not raised with the public body at the time of its impugned action. 31.3.1 Standing. {P38} (standing); {31.1.5} (context and standing); David Eves v Hambros Bank (Jersey) Ltd [1996] 1 WLR 251 (claimant lacking a legal interest in order to be able to complain about bias). 31.3.2 Fundamental principles and unpopular claimants. 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 (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §36 (Lord Steyn: “even in unprepossessing cases fundamental principles must be upheld. The rule of law requires it”). 31.3.3 Fact that claimant has legal aid is irrelevant. Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.30(1) (legal aid rights of a person “do not affect – (a) the rights or liabilities of other parties to the proceedings, or (b) the principles on which the discretion of the court or tribunal is normally exercised”). 31.3.4 Unclean hands etc. R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin) [2020] QB 478 at §80 (where magistrates acted without jurisdiction, leaving open when judicial review court could withhold remedy for a claimant who had deliberately and fraudulently misled them); Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435, 460 (conduct of the claimant relevant to discretion as to remedy); R v Greenwich LBC, ex p Glen International 20 October 1998 unreported (court not satisfied, to requisite high standard of proof, that dishonest conduct by claimant); R v Cambridgeshire County Council, ex p Darnell [1995] COD 434 (remedy would have been refused given claimant’s cooperation in a dishonest scheme); R v Secretary of State for the Environment, Transport and the Regions, ex p Garland 10 November 2000 unreported at §44 (inequitable and unjust to allow remedy where claimant had escaped action by district auditor because of settlement agreement on which Auditor had relied); R v Brent LBC, ex p Dorot Properties The Times 7 March 1990 (remedy refused, despite claimant ratepayer having overpaid, because of past conduct as to arrears); R v Kirklees Metropolitan Borough Council, ex p Tesco Stores Ltd (1994) 92 LGR 279, 292 (“plain unwillingness to comply with the law”); {10.3} (claimant’s duty of candour: whether lack of full and frank disclosure); R v Ministry of Agriculture Fisheries and Food, ex p SP Anastasiou [1995] COD 339 (refusing third-party application for a further CJEU reference, and ordering indemnity costs, where application brought for an extraneous purpose); R v Hereford & Worcester County Council, ex p Smith (Tommy) [1994] COD 129 (remedy inappropriate where sought to further unlawful purpose); R v London Borough of Southwark, ex p Davies (1994) 26 HLR 677, 680-681 (remedy not to be refused merely because of alleged dishonesty by claimant); R v Chief Constable of the British Transport Police, ex p Farmer [1998] COD 484 (caution as to plea that claimant should be refused a remedy because guilty of unmeritorious conduct); R v Pembrokeshire County Council, ex p Coker [1999] 4 All ER 1007, 1014e-g (behaviour raising serious questions as to the good faith of the claim); Brabazon-Drenning v United Kingdom Central Council for Nursing Midwifery and Health Visiting [2001] HRLR 91 (unfair not to adjourn disciplinary proceedings, even though claimant’s inability to attend was due to own failure to take medication); R (Barwise) v Chief Constable of West Midlands Police [2004] EWHC 1876 (Admin) at §37 (“wrong … to refuse relief based upon conduct grounds in circumstances where the precise rights and wrongs of the parties’ actions have not been established”); cf Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15 [2011] 2 AC 304 (SC, implying into the statutory planning framework a “public policy” exclusion to prevent person profiting from his own wrong); Land Securities Plc v Fladgate Fielder [2009] EWCA Civ 1402 [2010] Ch 467 at §§70, 93, 112 (discussing refusal of permission for judicial review if proceedings are an abuse of process). 449

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31.3.5 Points not raised/taken at the time: general. R (Drain) v Birmingham Crown Court [2018] EWHC 1255 (Admin) [2018] 1 WLR 4865 at §33 (“we find it hard to see how there can be a valid claim for judicial review … of a decision when the judge was never required to confront the issue put before this court”); Waterstone Estates Ltd v Welsh Ministers [2018] EWCA Civ 1571 at §49 (“generally [a planning] inspector is only required to deal with the ‘principal important controversial issues’”); R (English) v East Staffordshire Borough Council [2010] EWHC 2744 (Admin) at §39 (Flaux J: “the short answer … is that it was never suggested by the Claimant at the time that redacted documents should be disclosed”); R (Easyjet Airline Co) v Civil Aviation Authority [2009] EWCA Civ 1361 at §70 (failure to object to deficient statutory notice); R (A) v General Medical Council [2004] EWHC 880 (Admin) at §106 (judicial review confined to the “issues as put before the PCC”); R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) [2017] PTSR 1126 at §15 (“only … in very rare cases” would it be appropriate to raise a “new argument” on statutory review, not raised before the planning inspector); R v Leeds Crown Court, ex p Redfearn [1998] COD 437 (not open to claimant to rely on arguments not raised before Crown Court); R (Shields) v Criminal Injuries Compensation Appeals Panel [2001] ELR 164 at §26 (claimant not able to rely on point not argued before the decision-maker); R v Cambridge University, ex p Beg (1999) 11 Admin LR 505, 512d (appellate body’s “decision as to penalty cannot be criticised in this court, since they were not asked to address the issue”); R (S) v Inner West London Coroner [2001] EWHC Admin 105 at §13 (judicial review of coroner for failure to ask the jury to consider a verdict involving neglect, even though claimants had not sought such a direction); B v London Borough of Harrow [1998] ELR 351 (CA), 355E-356C (permitting point to be relied on although not raised before the Special Educational Needs Tribunal, this being in the public interest); R v SSHD, ex p Robinson [1998] QB 929, 946A-D (in deciding permission to appeal, tribunal should address the grounds advanced, plus any “obvious” unpleaded point of law); Kizhakudan v SSHD [2012] EWCA Civ 566 at §§17, 27, 29 (Rix LJ, referring to the concept of whether a point is “Robinson obvious”); {13.7} (review from the decision-maker’s point of view); {61.7.9} (rights to proactivity/assistance by the decision-maker). 31.3.6 Point not taken before the decision-maker: discretion as to remedy. JBS Park Homes v Secretary of State for Communities and Local Government 19 June 2018 (HHJ Cotter QC) at §71 (“I would not have granted relief in any event given the nature and extent of the case advanced before [the inspector]. The grant of relief is discretionary. … [T]he conduct of the party seeking relief is relevant and … the claimant would only have itself to blame for failing to advance a clear case before the inspector thus causing him to fail to focus on an issue”); R (Chelfat) v Tower Hamlets LBC [2006] EWHC 303 (Admin) at §26 (judicial review refused as a matter of discretion where course of action had previously been agreed); R (Community Pharmacies (UK) Ltd) v NHS Litigation Authority [2016] EWHC 1595 (QB) [2016] PTSR 1402 at §67 (Langstaff J, explaining that he would have refused relief as a matter of discretion on the basis that: “It does no service to public administration for a party to seek to overturn decisions of a public body by arguing that the body was in error by adopting the very argument that party had advanced before it”); R (CPS) v Bolton Magistrates’ Court [2003] EWHC 2697 (Admin) [2004] 1 WLR 835 at §8 (absence of objection taken before the magistrates meaning no remedy in respect of their ruling, but Court could give guidance by declaratory relief). 31.3.7 Waiver: actual/apparent bias/disqualification. Amjad v Steadman-Byrne [2007] EWCA Civ 625 [2007] 1 WLR 2484 at §17 (apparent bias should be raised with tribunal at the time not after adverse outcome); R v SSHD, ex p Fayed [2001] Imm AR 134 at §§84-89 and 120 (claimant having waived any objection based on apparent bias, because full knowledge of relevant circumstances but did not object to Secretary of State taking decision), §85 (“with all the relevant knowledge at his disposal the appellant clearly and unequivocally waived any right he may have had to object to the Home Secretary deciding his application”), §86 (“there may be cases of actual bias being shown which in the public interest the courts will say cannot be waived”), §111 (clear cases of actual bias not able to be waived, in public interest); Smith v Kvaerner Cementations Foundation Ltd [2006] EWCA Civ 242 [2007] 450

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1 WLR 370 (no waiver where party did not have all relevant information explained and had been encouraged not to object); R (A1 Veg Ltd) v Hounslow LBC [2003] EWHC 3112 (Admin) [2004] LGR 536 at §89 (not “full knowledge” or “clear and unequivocal” waiver); Modahl v British Athletic Federation Ltd 28 July 1997 unreported (CA) (waiver/estoppel in relation to one bias objection, not raised at the time; but entitled to rely on broader bias matters of which no knowledge at the time); R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 327e (where issue a lis inter partes, appropriate for person to declare their interest to see whether either party objects), citing R v Altrincham Justices, ex p Pennington [1975] QB 549, 554 (magistrate should bring the matter to the attention of the parties to see whether any objection); R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 133C (disqualification unless sufficient disclosure made), 141A (“the parties to the suit may waive the objection”); Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at §§15, 26 (waiver must be clear and unequivocal and based on full knowledge of relevant facts); R v London Metal Exchange Ltd, ex p Albatros Warehousing BV 31 March 2000 unreported at §§35-36 (claimant’s “clear and unequivocal agreement” to procedures and participation of committee member); Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071 at §30 (presumed bias capable of waiver, as here); R (B) v Head Teacher of Alperton Community School [2001] EWHC Admin 229 at §23 (although no objection to appointment of statutorily-disqualified panel member, acquiescence not capable of conferring legal status). 31.3.8 Waiver: procedural fairness. R (Hill) v Institute of Chartered Accountants in England and Wales [2013] EWCA Civ 555 [2014] 1 WLR 86 at §§23, 42, 54 (where claimant’s voluntary, informed and unequivocal agreement to tribunal member’s absence during part of hearing, no breach of natural justice), §§30, 37 (alternatively, waiver); R (Hill) v Institute of Chartered Accountants in England and Wales [2012] EWHC 1731 (QB) (breach of natural justice by proceeding with cross-examination in absence of a member of the tribunal, but waived by claimant); R v Visitors to the Inns of Court, ex p Calder & Persaud [1994] QB 1, 57F-G (leaving open question of waiver of breach of natural justice); Thomas v University of Bradford (No 2) [1992] 1 All ER 964, 979b-j, 981f. 31.3.9 Procedural fairness: failure to request/complain/act fatal. R (Hoffmann) v Commissioner of Inquiry [2012] UKPC 17 at §66 (claimant “effectively declined … a reasonable opportunity to give oral evidence”); R (Elvington Park Ltd) v York Crown Court [2011] EWHC 2213 (Admin) [2012] Env LR 267 at §36 (failure to complain, about exclusion of witness from Crown Court hearing, an obvious point taken as election); R (A) v Secretary of State for Justice [2010] EWHC 1250 (Admin) at §§47-49 (claimant could have called witnesses but decided not to); R (Thompson) v Law Society [2004] EWCA Civ 167 [2004] 1 WLR 2522 at §47 (“the claimant’s failure to ask for an oral hearing … is fatal to his argument at common law”); R (J) v Head teacher and Governing Body of A School and College [2003] EWHC 1747 (Admin) [2003] ELR 743 at §24 (lack of request at the time for an adjournment or attendance of witnesses)); Ceylon University v Fernando [1960] 1 WLR 223, 235 (absence of cross-examination “might have been a more formidable objection” but “he never made any such request”); 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 (failure to request the document at the time “will usually signify a lack of prejudice”); R v HM Coroner for South Yorkshire, ex p Stringer [1994] COD 176 (relevant that claimants had not objected to the procedure now criticised); R v Governing Body of Irlam & Cadishead Community High School, ex p Salford City Council [1994] ELR 81, 86D (not suggested at the time that a different ballot timetable should be adopted); R v Milk Marketing Board, ex p Brook (1994) 6 Admin LR 369 (Hutchison J), 379B (failure to secure attendance of relevant witnesses or ask for an adjournment); South Oxfordshire District Council v Secretary of State for the Environment [1994] 1 PLR 72, 84E-G (no request for a subpoena); R v SSHD ex p Osei Yaw Yeboah [1995] Imm AR 393, 395 (legal adviser’s failure to attend and seek adjournment); R v Northamptonshire County Council, ex p W [1998] ELR 291, 303E (parents had been offered postponement of hearing before panel, to permit them to attend and appear, but 451

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had declined); R v University of the West of England, ex p M [2001] ELR 77 (Richards J), at §19 (“Since the [claimant] did not request particulars of those contacts … she cannot now complain of a lack of opportunity to make comments on them”). 31.3.10 Procedural fairness: failure to request/complain/act not fatal. R v Governors of Dunraven School, ex p B [2000] ELR 156, 193 (“The governors’ duty to ensure fairness is not conditional upon applications or demands more appropriate to adversarial litigation”); R v Northern & Yorks Regional Health Authority, ex p Trivedi [1995] 1 WLR 961, 975C (unfairness, despite claimants’ failure to ask for adjournment); R (West) v Parole Board [2002] EWCA Civ 1641 [2003] 1 WLR 705 at §44 (“A prisoner who does not ask for an oral hearing cannot ordinarily expect one; but even here it may become apparent to the Parole Board that a hearing is needed if it is to reach a safe conclusion on a disputed issue”) (HL is [2005] UKHL 1 [2005] 1 WLR 350); R (Chaston) v Devon County Council [2007] EWHC 1209 (Admin) at §§61, 66 (unfair not to refer new material back to inspector who had conducted inquiry, even though claimants provided with the material and made no such request); R v Norfolk County Council, ex p M [1989] QB 619 (Waite J, referring to the offer of a hearing “before a body which had already condemned him in his absence. He refused it, and in my view had every justification for doing so”). 31.3.11 Procedural fairness and failure to request/complain/act: defendant’s onus. R (Lichfield Securities Ltd) v Lichfield District Council [2001] EWCA Civ 304 [2001] 3 PLR 33 at §26 (Sedley LJ: “it is for [the] public authority to make out any case that the remedy for its own unfairness lay in the [claimant’s] hands”). 31.3.12 Relying on evidence which was not before the decision-maker. {17.2} (fresh evidence in judicial review); R v Director General of Telecommunications, ex p Cellcom Ltd [1999] ECC 314 at §28 (claimant not entitled to adduce “fresh material not available to the decision-maker … a fortiori … where (as here) there was a statutory consultation period before the decision was made and the fresh evidence could and should have been put before the decision-maker during that period”). 31.3.13 Lack of jurisdiction: failure to object. R v Inner London Quarter Sessions, ex p D’Souza [1970] 1 WLR 376 (Lord Parker CJ: “If a party to litigation applies to this court for certiorari, certiorari will not be granted if no objection to the jurisdiction was taken before the court below, unless the party was unaware of the absence of jurisdiction”); R v Broadcasting Complaints Commission, ex p British Broadcasting Corporation (1995) 7 Admin LR 575, 595A-B (no waiver as to absence of jurisdiction by participating in process). 31.3.14 Failure to consider exercise of discretion: whether requested. R (AB) v SSHD [2018] EWCA Civ 383 [2018] Imm AR 1015 at §48 (SSHD not under a duty to consider claimant’s application outside the immigration rules where no request to do so). 31.3.15 Relevancy/irrelevancy: whether pointed out at the time. R v SSHD, ex p Harry Olugwagbohunmi Payne [1995] Imm AR 48, 50 (“If in the context of the immigration rules the Secretary of State does not have a submission directed to him which raises the issue, he cannot be criticised for not applying his mind to it”); R v Sedgemoor District Council, ex p McCarthy (1996) 28 HLR 607, 613 (no duty to investigate matter where no reasonable grounds for believing it to be a live issue); R v Merton, Sutton and Wandsworth Health Authority, ex p Perry (2000) 3 CCLR 378 at §§81-84 (council should have considered promise of home for life even though not pointed out in response to consultation); R v Sheffield City Council, ex p H [1999] ELR 511, 516G (Laws LJ: “I would find it very difficult to see that the committee’s decisions can properly be condemned as unlawful on the ground that they failed to take account of something never drawn to their attention”). 31.3.16 Error of fact: claimant’s own fault. R (Assura Pharmacy Ltd) v NHS Litigation Authority [2008] EWHC 289 (Admin) at §125 (material error of fact, but claimant’s own fault); {49.3.3} (material mistake of fact, leading to unfairness’: the E criteria). 452

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31.3.17 Legally adequate consultation: claimant’s conduct at the time. R (Edwards) v Environment Agency [2004] EWHC 736 (Admin) [2004] 3 All ER 21 at §16 (Keith J: “You should not be debarred from subsequently challenging the decision on the ground of inadequate consultation simply because you chose not to participate in the consultation exercise, provided that you are affected by its outcome”); R v London Borough of Barnet, ex p B [1994] ELR 357, 375E (not open to criticise consultation as a charade when participated in it); R v Director General of Telecommunications, ex p Cellcom Ltd [1999] ECC 314 at §28 (claimant not entitled to adduce “fresh material not available to the decision-maker … a fortiori … where (as here) there was a statutory consultation period before the decision was made and the fresh evidence could and should have been put before the decision-maker during that period”); R v Solicitor-General, ex p Taylor (1996) 8 Admin LR 206, 222C (in rejecting challenge based on non-consultation, commenting that the claimants “had shown no interest” at the relevant time); R v Secretary of State for Transport, ex p Richmond-upon-Thames LBC [1994] 1 WLR 74, 97H (failure to ask for clarification of consultation document); R v Secretary of State for Education, ex p Bandtock [2001] ELR 333 at §37 (claimant could have checked with defendant if something was unclear in the information provided during consultation); {61.5.8} (claimant relying on duty to hear/consult a third party). 31.3.18 Reasons on request: failure to complain/request. {64.2.24} 31.3.19 Relevant person did not complain. Durayappah v Fernando [1967] 2 AC 337, 352G (Lord Upjohn: “Though the council should have been given the opportunity of being heard in its defence, if it deliberately chooses not to complain and takes no step to protest against its dissolution, there seems no reason why any other person should have the right to interfere”); Century National Merchant Bank and Trust Co Ltd v Davies [1998] AC 628, 638A-B (where bank failing to exercise its statutory remedy of appeal, directors and others may lack standing or may be guilty of an abuse of process in bringing a later action of their own).

31.4 ‘Flexi-principles’. Judicial review has an aversion to rigid rules. It thrives on principles, articulated with an in-built capacity to accommodate and adapt to the context and circumstances of any given case, and then applied in a case-specific way. Traditionally the most celebrated of judicial review’s ‘flexi-principles’ was procedural fairness, but all judicial review principles display context-specific adaptability. 31.4.1 Importance of principled flexibility: Lord Hailsham. London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 190A-C (Lord Hailsham, describing it as “misleading” to use language suggesting the Courts are “necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition”; “The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1160E-G (Lord Hailsham: “Since the range of authorities, and the circumstances … are almost infinitely various, it is of course unwise to lay down rules for the application of the remedy which appear to be of universal validity in every type of case”). 31.4.2 Importance of principled flexibility: other observations. Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §60 (Lord Carnwath, referring to the “flexible approach to principles of judicial review”, endorsed in Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455); R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322 at §27 (Lord Sumption: “a tool of analysis should not be transformed into a rule of law”); R (Sisangia) v Director of Legal Aid Casework [2016] EWCA Civ 24 [2016] 1 WLR 1373 at §21 (Lewison LJ, observing that “many … public law concepts” are “both flexible and context-specific”); Office of Fair Trading v IBA Health Ltd [2004] EWCA Civ 142 [2004] 4 All ER 1103 at §100 (Carnwath LJ: “the ordinary principles of judicial review … are flexible enough to be adapted to the particular statutory context”); R v Oldham Justices, ex p Cawley [1997] QB 1, 16G 453

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(Simon Brown LJ: “judicial review has developed into an ever more flexible and responsive jurisdiction”); R v Bolton Justices, ex p Scally [1991] 1 QB 537, 555D (Watkins LJ: “the overriding principle … must surely be that justice should be done and if it be demonstrated that another principle rigidly applied is or would seem to be getting in the way of doing justice, the bounds of that principle require to be very critically examined in a modern light”); R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19, 28F (Lord Steyn, contrasting the “all or nothing” quality of “rules” and those “general norms”, often competing, which are “principles”) {30.1.6} (escaping from over-rigid categories). 31.4.3 Principled flexibility: Sedley LJ’s toddler lawyers in a playgroup. R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 (discussing fairness and the duty to give reasons) at §42 (Sedley LJ. commenting that “lawyers seem to have manifested their classic learnt response” to the case law “by 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”). 31.4.4 Principled flexibility and human rights: Laws LJ’s quicksilver. R (M) v Commissioner of Police of the Metropolis [2001] EWHC Admin 553 at §9 (Laws LJ: “from time to time the Convention rights have been treated and regarded by claimants’ advisers as if they were set in stone: that is, as if their efficacy and applicability were somehow at a distance from the actual facts of the case in which they were invoked. If so, it is a great mistake. The Strasbourg learning suggests no such straitjacket. … Moreover by force of the Act of 1998, not least s.2, we are to fashion a municipal jurisprudence of human rights, in light of the decisions of the Court at Strasbourg. That is an endeavour which is by no means separate from the common law’s own development. The objective substance and weight of rights which the common law gives are not at all lessened or weakened because, like quicksilver, their shape moves to fit the place where they lie – that is, the facts of the particular case. This condition of robust flexibility is a virtue of the common law. So also it must be a virtue of our domestic law of human rights, which will march with the common law as it matures”); {58.5.3} (variable latitude/variable intensity: proportionality as a flexi-principle). 31.4.5 Procedural fairness as a flexi-principle. {61.2} 31.4.6 Unreasonableness as a flexi-principle. Office of Fair Trading v IBA Health Ltd [2004] EWCA Civ 142 [2004] 4 All ER 1103 at §90 (Carnwath LJ, referring to “the flexibility of the legal concept of ‘reasonableness’ dependent on the statutory context”); R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 at §49 (Lord Phillips MR: “The extent to which the exercise of a statutory power is in practice open to judicial review on the ground of irrationality will depend critically on the nature and purpose of the enabling legislation”); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 694j-695a (Simon Brown LJ, saying of the Wednesbury principle that: “The flexibility necessarily inherent in that guiding principle should not be sacrificed on the altar of legal certainty”); R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1130B (Laws LJ: “Fairness and reasonableness (and their contraries) are objective concepts; otherwise there would be no public law, or if there were it would be palm tree justice. But each is a spectrum, not a single point, and they shade into one another”). 31.4.7 Tameside duty of enquiry as a flexi-principle. Flintshire County Council v Jayes [2018] EWCA Civ 1089 [2018] ELR 416 at §14 (Hickinbottom LJ: “Although any administrative decision-maker is under a duty to take all reasonable steps to acquaint himself with information relevant to the decision he is making in order to be able to make a properly informed decision, the scope and content of that duty is context specific”); R (Bah) v SSHD [2018] EWHC 2942 (Admin) at §95 (“The duty to make reasonable inquiries is a flexible concept which requires a fact-specific assessment”). 31.4.8 Flexi-principles: other illustrations. {58.5.3} (variable latitude/variable intensity: proportionality as a flexi-principle); {59.5.7} (Article 6 as a flexi-principle); {62.3.3} 454

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(flexi-principles: standards of legally adequate consultation are contextual); {44.3.1} (nullity as a relative concept); {48.1.7} (fact/law: a flexible policy-informed approach); Husson v SSHD [2020] EWCA Civ 329 at §42 (whether actionable duty of care requiring intense focus on the particular facts and statutory background); {61.4.3} (whether intended vitiating consequence: Soneji); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 658F (importance that test of “sufficient interest” for standing should “permit sufficient flexibility”); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 at §135 (Mance LJ: “The common law principle of legitimate expectation is … flexible and fact-responsive. Regard must be had to all the circumstances”). 31.4.9 Virtues of principle and certainty. R (L) v West London Mental Health NHS Trust [2014] EWCA Civ 47 [2014] 1 WLR 3103 at §72 (Beatson LJ: “A …. danger of emphasising flexibility and saying no more is that to do so may lead to a modern version of Sir William Wade’s nightmare of a Tennysonian ‘wilderness of single instances’ in which all the contextual factors will be relevant in considering what the requirements of procedural fairness are in a given situation without any factor or group of factors having decisive weight in shaping what is in practice required. The consequence may either risk obscuring the overarching principle or stating it at a level of generality which is not of use as a practical tool to decision-making. The result could be undue uncertainty and unpredictability. There is a need for principled guidance which is practical and does not constitute either a procedural straitjacket, a ‘safe harbour’ for longstanding ways of doing things in a particular context, or operate with centripetal force towards an adversarial adjudicative process”); Wiseman v Borneman [1971] AC 297, 310F (Lord Guest: “Where a question arises as to whether the principles of natural justice should be followed in any particular case it is important … that the principles upon which this question is to be decided should be reasonably clear and definite. Inferior tribunals should be in a position to know whether, in any particular case, they were called on to apply the principles of natural justice and to what extent those principles should be followed. It would be unsatisfactory if cases where statutory tribunals had been set up were to be decided ex post facto upon some uncertain basis”); R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242, 257C-D (Sedley J: “No doubt the common law will develop, as the common law does, case by case. It is not entirely satisfactory that this should be so, not least because experience suggests that in the absence of a prior principle irreconcilable or inconsistent decisions will emerge”); R v Secretary of State for Education, ex p London Borough of Southwark [1995] ELR 308, 320D-F (Laws J, speaking of the duty to consult: “I am quite sure that the courts … have not imposed on public bodies substantial duties to consult others merely as a knee-jerk response to the facts of the particular case, without regard to principle. If they did, we should have palm tree justice; or, to employ another overworked aphorism, the duty to consult would be as long as the Chancellor’s foot. It is important to have in mind that while this area of the law is preeminently concerned with fairness – notoriously a concept giving rise to different views as to its application in practice – we are obliged, sitting here, to pay due respect to another principle: the principle of legal certainty. It would be intolerable if our jurisprudence did not make it reasonably clear to public administrators, whose task extends not to a single case but to the management of a continuing regime, when the law obliges them to consult persons or bodies affected by their decisions, and when it does not”); R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 at §28 (approach to fairness in “all the circumstances” showing that “the law’s heart is in the right place, but it provides little guidance for the resolution of specific instances”).

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P32 Modified review. Sometimes judicial review applies in part or on adapted grounds. 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

32.1 Modified review.81 In certain recognisable contexts judicial review is available only in part, or only on some grounds, or only in an adapted way. There are no neat pigeon-holes or rigid adjustments. All grounds for judicial review are contextual and adaptable, to meet the interests of justice in the particular context and circumstances. So, it is debatable whether ‘modified review’ is exceptional, or mainstream. 32.1.1 Cardinal principle: Courts secure the scope of judicial review required by the rule of law. {1.3.5} (cardinal principle: Courts secure the scope of judicial review required by the rule of law). 32.1.2 Modified review and striking a balance. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §130 (Lord Carnwath: “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”); R v Panel on Take-overs and Mergers, ex p Guinness Plc [1990] 1 QB 146 at 178H (Lord Donaldson MR, asking “whether something has gone wrong of a nature and degree which require the intervention of the court”). 32.1.3 Modified review: primary legislation. {12.3} (judicial review of primary legislation at common law). 32.1.4 Modified review: whether courts of law reviewable for error of law. {48.2.7} (Anisminic: error of law and ‘courts of law’). 32.1.5 Modified review: visitors/bodies applying special law. {48.2.9} (Visitors/religious bodies etc: error of ‘law’ insufficient); R v Hull University Visitor, ex p Page [1993] AC 682, discussed in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §67 (“visitor … equivalent to an arbitrator designated by the internal governance arrangements of a university”); R v Visitors to the Inns of Court, ex p Calder & Persaud [1994] QB 1, 42B-D, 58D-E (Visitor’s decisions as to whether natural justice satisfied not reviewable); R v HM the Queen in Council, ex p Vijayatunga [1990] 2 QB 444; R (Varma) v Duke of Kent [2004] EWHC 1705 (Admin) [2004] ELR 616 at §21 (judicial review of Visitor available for alleged improper delegation and unfairness). 32.1.6 Non-statutory functions: hints of modified review. Sandiford {50.4.8}-{50.4.9}; R v Criminal Injuries Compensation Board, ex p P [1995] 1 WLR 845, 864B-C (“It will … be a very rare case where the court will be able to interfere with such a decision on the ground of irrationality”), 858C-D; Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 192F-193B (“It is only against … a specific statutory background that the question whether the authority has acted unreasonably, in the Wednesbury sense, can properly be asked and answered”); R v Ealing LBC, ex p Parkinson (1996) 8 Admin LR 281, 282G (because decision not an administrative function under statutory powers, defendant not entitled to rely on 81The

equivalent paragraph in a previous edition was relied on in Re Shuker [2004] NIQB 20 at §16 (Kerr LCJ); Murphy v Ireland [2014] IESC 19 (Supreme Court of Ireland) at §29 (O’Donnell J).

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Wednesbury restraint but obliged to make out its case substantively); R v Panel on Take-overs and Mergers, ex p Guinness Plc [1990] 1 QB 146 (takeover panel exercising non-statutory functions), 159D-160A (discussing conventional grounds), 178H (asking “whether something has gone wrong of a nature and degree which require the intervention of the court”). 32.1.7 Prerogative powers: whether modified review. R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697 (no-fettering principle inapplicable to prerogative powers: {50.4.8}) at §65 (“this does not mean that the formulation or exercise of a prerogative power may not be susceptible to review on other grounds”); In re McFarland [2004] UKHL 17 [2004] 1 WLR 1289 at §41 (Lord Scott: “the scope of the courts’ powers of intervention are … limited by the nature of the prerogative power in question”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 411D-F (speaking of “irrationality”: “difficult to envisage in any of the various fields in which the prerogative remains the only source of the relevant decision-making power a decision of a kind that would be open to attack through the judicial process upon this ground”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §35 (judicial review of prerogative Orders in Council on conventional grounds). 32.1.8 Commercial contexts/contracts: whether modified review. State of Mauritius v CT Power Ltd [2019] UKPC 27 at §63 (government having “very wide discretion” as to how to negotiate in the commercial market), §64 (“In negotiating a commercial contract”, minister “not entirely free from constraints arising under public law … obliged to comply with basic public law standards which ensure that he properly seeks to promote the public interest”), §66 (“limited scope for a judicial review challenge” such that not “likely that a decision by a state enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith”, affirming Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, 529B); R v Northumbrian Water Ltd, ex p Newcastle and North Tyneside Health Authority [1999] Env LR 715, 724-729 (duty to act in the public interest inapplicable to commercial organisation/privatised body); R (Daniel Johns Manchester Ltd) v Manchester City Council [2018] EWHC 464 (Admin) at §30, applying Trafford v Blackpool Borough Council [2014] EWHC 85 (Admin) (local authority decision as to disposal of land, pursuant to Local Government Act 1972 s.123) at §55 (Judge Stephen Davies: “In a case such as the present, involving a challenge to a decision of a public body in relation to a contract, it is necessary to consider: (a) by reference to the contract in question, to the relevant statutory power, to the statutory framework (if relevant), and to all other relevant matters, whether or not, and if so to what extent, the defendant is exercising a public function in making the decision complained of; (b) whether, and if so to what extent, the grounds of challenge involve genuine and substantial public law challenges to the decision complained of, or whether, and if so to what extent, they are in reality private law challenges to decisions made under and by reference to the terms of the relevant contract. (2) In a case involving a challenge to a decision of a public body acting under a statutory power but in relation to a contract and in the absence of a substantial public function element, a claimant will nonetheless normally be entitled to raise genuine and substantial challenges based on fraud, corruption, bad faith, and improper motive (in the sense … of the knowing pursuit of an improper purpose). (3) The extent to which a claimant will be entitled to raise genuine and substantial public law challenges beyond those limited classes will depend on a careful analysis of all of the relevant circumstances so as to see whether or not there is a relevant and sufficient nexus between the decision in relation to the contract which is challenged and the grounds complained of ”). 32.1.9 Westminster-approved measures: whether modified review. M v Home Office [1994] 1 AC 377, 413D-G (Lord Woolf, explaining when, of schemes “laid … before Parliament for approval”, “it could be difficult to persuade a court to intervene”); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525 at 536C-E (where report laid before Parliament, “the courts must be careful not to invade the political field and substitute their

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own judgment for that of the Minister”); O’Connor v Chief Adjudication Officer [1999] 1 FLR 1200, 1210F-1211B (Auld LJ: “Irrationality is a separate ground for challenging subsidiary legislation. … It is wrong to deduce from [the] dicta a notion of ‘extreme’ irrationality”, albeit that “in cases where the minister has acted after reference to Parliament, usually by way of the affirmative or negative resolution procedure, there is a heavy evidential onus on a claimant for judicial review to establish the irrationality of a decision which may owe much to political, social and economic considerations in the underlying enabling legislation”); R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 (delegated legislation unlawful because underlying factual conclusions irrational) at §33 (Court retaining “the role of determining the legality of the subordinate legislation”), §51 (no “principle of law which circumscribes the extent to which the court can review an order that has been approved by both Houses of Parliament under the affirmative resolution procedure”); R v Secretary of State for the Environment, ex p Greater London Council 3 April 1985 unreported (delegated legislation approved by House of Commons reviewable, including for unfairness and unreasonableness, albeit in practice grant of remedy on the latter ground likely to be rare); R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, 292C (conventional approach where regulations contravening express or implied requirements of a statute); R v Criminal Injuries Compensation Board, ex p P [1995] 1 WLR 845, 861G-862B (Parliamentary approval not a “constitutional bar … to the exercise of the court’s powers of judicial review”); R v HM Treasury, ex p Smedley [1985] QB 657, 672C (discretion of Her Majesty in Council as to whether or not to make approved draft Order in Council, reviewable on Wednesbury principles); R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 WLR 621, 623H, 625G-626E (refusing to apply “limited basis” of review to judicial review of the Westminster Parliamentary Ombudsman); R v Secretary of State for the Environment, ex p British Telecommunications Plc The Independent 5 September 1991 (since equipment rating Order approved by Parliament, amenable to judicial review only on grounds of illegality); Ex p Williamson The Times 9 March 1994 (Church of England Measure, being duly enacted and having received the Royal Assent, treated as enjoying the same invulnerability as an Act of Parliament). 32.1.10 National economic policy: whether modified review. Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §45 (Lord Sumption: “general policy, involving decisions about the use of resources and the level of taxation, potentially affecting every householder in Britain” described as being “quite obviously exceptionally difficult to challenge on rationality grounds”); Hammersmith & Fulham LBC [1991] 1 AC 521, 596F-597H (“The formulation and the implementation of national economic policy are matters depending essentially on political judgment”; since needing “the approval of the House of Commons, it is not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity”); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 250E-251A, 247H; R v Commissioners of Customs and Excise, ex p Service Authority for the National Crime Squad [2000] STC 638 (specification of police authorities for purposes of VAT a matter of national economic policy with which court should not interfere); R v Secretary of State for Trade and Industry, ex p Isle of Wight Council [2000] COD 245 (unreasonableness challenge to assisted areas scheme, being national economic policy, so would have to show that ‘manifestly inappropriate’); R (South Cambridgeshire District Council) v First Secretary of State [2005] EWHC 1746 (Admin) [2006] LGR 529 at §22 (“the lowest level of scrutiny available on grounds of rationality”); R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 at §49 (explaining Nottinghamshire and Hammersmith as cases “at an extreme end of the spectrum. In each case the decisions on how to exercise the statutory power turned on political and economic considerations to be evaluated by the minister and Parliament, whose rationality could not be measured by any yardstick available to the court”); Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623 (Regulations laid before Parliament but nevertheless ultra vires because advisory committee misled and statutory procedure therefore breached), at §38 (“every member of the public adversely affected by a new regulation is entitled to challenge the lawfulness of that regulation on proper grounds. The courts have 458

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never shrunk from declaring the invalidity of a defective measure affecting the allocation of public monies”); R (Gurung) v Ministry of Defence [2002] EWHC 2463 (Admin) at §§40-41 (judicial review granted of exclusionary criterion in compensation scheme, albeit involving public expenditure and announced in Parliament, as unequal and so irrational). 32.1.11 Whether modified review: other cases. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 (judicial review of IPT available, at least for error of law, notwithstanding statutory ouster) at §126 (“the special status of the IPT … may be a reason for restricting the grant of permission for judicial review, but not for excluding it altogether”); R (Daly) v Commissioner of Police of the Metropolis [2018] EWHC 438 (Admin) [2018] 1 WLR 2221 at §28 (error of fact not available as a ground to challenge a search warrant); R (Begum) v Tower Hamlets LBC [2006] EWCA Civ 733 [2006] LGR 674 at §§20-21 (judicial review very rare to interfere with pending local election); R v Barnet & Camden Rent Tribunal, ex p Frey Investments Ltd [1972] 2 QB 342, 358B-C, 364G-365C, 368D-H (referral to Rent Tribunal not reviewable on relevancy/irrelevancy grounds); R v SSHD, ex p Hepworth [1998] COD 146 (judicial review of “executive decisions arising wholly within the context of internal prison management” only available on grounds of “crude irrationality”). 32.1.12 Restricted reviewability: court martial/service courts. Senior Courts Act 1981 s.29(3A) (“The High Court shall have no jurisdiction to make mandatory, prohibiting or quashing orders in relation to the jurisdiction of the Court Martial in matters relating to – (a) trial by the Court Martial for an offence; or (b) appeals from the Service Civilian Court”); cf {32.2} (part-reviewability of Crown Courts).

32.2 Part-reviewability of Crown Courts. The Crown Court is a good example of a public authority treated as judicially reviewable in respect of only some of its functions. Based on a historical distinction and in a prohibition found in primary legislation, the Crown Court is not judicially reviewable in respect of “matters relating to trial on indictment”. That has proved to be an unsatisfactory and complex exclusion. It is closely scrutinised, and several inroads have been made: a practical application, perhaps, of the cardinal principle that the Courts will secure the scope of judicial review required by the rule of law. 32.2.1 Restricted reviewability of Crown Courts: s.29(3). Senior Courts Act 1981 s.29(3) (“In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court”). 32.2.2 The s.29(3) restriction explained. R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at §16 (Lord Sumption: “The High Court’s supervisory jurisdiction over the criminal process … extends to decisions … of the Crown Court other than in relation to trial on indictment. For this purpose the Crown Court, although a superior court of record, is treated as if it were an inferior tribunal: see sections 28(2) and 29(3) of the Senior Courts Act 1981”); In re Smalley [1985] AC 622, 640H-641B (Lord Bridge, explaining the historical reason: “The Crown Court is a single court which has inherited the combined functions of both the former courts of quarter sessions and assize courts. Courts of quarter sessions were subject to the supervisory jurisdiction of the High Court exercised by the prerogative writs and orders; assize courts, as superior courts of record, were not”); R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 (conventional judicial review of Crown Court when dealing with application for retention of property seized under magistrates’ warrant). 32.2.3 General guidance on s.29(3). In re Ashton [1994] 1 AC 9 (endorsing the previous guidance indicating non-reviewability of: (a) “any decision affecting the conduct of a trial on indictment, whether given in the course of the trial or by way of pre-trial directions” (In re Smalley [1985] AC 622 at 642G); and (b) “certain orders made at the conclusion of a trial on indictment … [which] are themselves an integral part of the trial process” (In re Sampson 459

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[1987] 1 WLR 194, 196F)); R v Manchester Crown Court, ex p DPP [1993] 1 WLR 1524, 1528C (recognising the “extremely imprecise” wording of s.29(3)), 1530E-G (suggesting a “third helpful pointer” (c): “‘Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?”); R v Horseferry Road Magistrates’ Court, ex p K [1997] QB 23 (asking whether procedural step having a direct and immediate bearing on conduct and content of process of determining guilt or innocence). 32.2.4 The problematic nature of s.29(3). R v Crown Court at Manchester, ex p H [2000] 1 WLR 760, 766C (s.29(3) “has, in recent years, attracted perhaps more judicial consideration, in not always apparently reconcilable decisions, than any other statutory provision”), 765H-766B (describing it as “time for Parliament to introduce, as a matter of urgency, clarifying legislation which addresses the problems arising not only from s.29(3) itself, but also from its relationship with other legislation”). 32.2.5 Bail in conjunction with trial on indictment. R (Treohan) v Inner London Crown Court [2018] EWHC 1137 (Admin) [2019] 1 Cr App R 8 (exceptional case of Crown Court refusal of bail, where lack of evidence to support CPS assertion that defendant likely to interfere with witnesses, and where so early in proceedings as not to be connected with trial on indictment) at §§9-10 (McGowan J, referring to “the very narrow opportunity to bring judicial review proceedings if the matter is so early in the course of the proceedings that it can properly be said not to be connected to trial on indictment” as “an exceptionally narrow window” and the grant of permission as “an exceptional course”) §10 (“It cannot be stated too clearly that this is an exceptional course and must not be seen and will not be accepted by this court as a means of circumventing the statutory prohibition on the right of appeal to this court from decisions refusing bail in the Crown Court”), referring to R (M) v Isleworth Crown Court [2005] EWHC 363 (Admin) and R (Allwin) v Snaresbrook Crown Court [2005] EWHC 742 (Admin); R (Uddin) v Leeds Crown Court [2013] EWHC 2752 (Admin) [2014] 1 WLR 1742 (revocation of bail during trial not reviewable); R (AF) v Kingston Crown Court [2017] EWHC 2706 (Admin) [2018] 1 Cr App R 32 (post-conviction decision on bail pending sentence excluded from judicial review by s.29(3)). 32.2.6 Response to the limitations on Crown Court reviewability: nullity/jurisdictional error. {P44} (nullity); {P47} (jurisdictional error); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at §16 (Lord Sumption: “The High Court’s powers of review have … been held to extend to any excess of jurisdiction by the Crown Court, even in relation to a trial on indictment”), citing R v Maidstone Crown Court, ex p Harrow LBC [2000] QB 719 (supervision and treatment order unarguably a matter relating to trial on indictment, but here so jurisdictionally flawed that Court would not decline jurisdiction); R (DPP) v Aylesbury Crown Court [2017] EWHC 2987 (Admin) [2018] 4 WLR 30 (judicial review granted of costs order in relation to trial on indictment) at §7 (Sharp LJ: “this court has jurisdiction provided there is a jurisdictional error of sufficient gravity to take the case out of the jurisdiction of the Crown Court”); R v Leicester Crown Court, ex p Commissioners for Customs and Excise [2001] EWHC Admin 33 at §22 (parties agreeing that reviewable if jurisdictional error); R (Kenneally) v Snaresbrook Crown Court [2001] EWHC Admin 968 [2002] QB 1169 at §§38-40 (jurisdictional error so reviewable); R v Maidstone Crown Court, ex p Hollstein [1995] 3 All ER 503 (arraignment a sham and therefore reviewable); cf R (CPS) v Guildford Crown Court [2007] EWHC 1798 (Admin) [2007] 1 WLR 2886 at §16 (sentence passed without jurisdiction but s.29(3) applying); R (Faithfull) v Crown Court at Ipswich [2007] EWHC 2763 (Admin) [2008] 1 WLR 1636 (error of law but s.29(3) applying); R v Chester Crown Court, ex p Cheshire County Council [1996] 1 FLR 651 (rejecting Anisminic arguments as to lack of jurisdiction). 32.2.7 Response to the limitations on Crown Court reviewability: declaration only. R (B) v Stafford Combined Court [2006] EWHC 1645 (Admin) [2007] 1 WLR 1524 at §14 (jurisdiction to grant declaration, where no mandatory, prohibiting or quashing order sought, no appeal right, and remedy not having effect of delaying trial); cf R (Faithfull) v Crown Court at Ipswich [2007] EWHC 2763 (Admin) [2008] 1 WLR 1636 at §§36, 41 (declining declaration where s.29(3) applying). 460

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32.2.8 Response to the limitations on Crown Court reviewability: habeas corpus. R v Maidstone Crown Court, ex p Clark [1995] 1 WLR 831, 842D, 843B-C, 844B-C (habeas corpus available in arraignment/bail context); R (O) v Harrow Crown Court [2003] EWHC 868 (Admin) [2003] 1 WLR 2756 at §14 (s.29(3) would not preclude habeas corpus as also sought here) (HL is [2006] UKHL 42 [2007] 1 AC 249). 32.2.9 Response to the limitations on Crown Court reviewability: residual jurisdiction. R v Maidstone Crown Court, ex p Harrow LBC [2000] QB 719, 736E (suggesting a “residual jurisdiction in this court to supervise the Crown Court in respect of a matter relating to trial on indictment if the challenge is to jurisdiction”); R (Kenneally) v Snaresbrook Crown Court [2001] EWHC Admin 968 [2002] QB 1169 (restriction order made without conviction being a matter relating to trial on indictment, but reviewable under residual jurisdiction); cf R v Chelmsford Crown Court, ex p Chief Constable of the Essex Police [1994] 1 WLR 359 (no inherent jurisdiction to grant declaration in relation to matter “relating to trial on indictment”). 32.2.10 Response to the limitations on Crown Court reviewability: distinct target/ defendant. {5.3} (multiple targets); R (Sullivan) v Maidstone Crown Court [2002] EWHC 967 (Admin) [2002] 1 WLR 2747 (Crown Court decision to apply local practice direction requiring defendant to sign his defence statement not reviewable, but judicial review granted of the local practice direction itself); R v DPP, ex p Kebilene [2000] 2 AC 326, 369C (s.29(3) only restricting review of Crown Court, not other bodies such as DPP, although restraint appropriate); R (D) v Central Criminal Court [2003] EWHC 1212 (Admin) at §§6, 33 (exceptional case where appropriate to allow judicial review of prosecution decision to continue with criminal proceedings, albeit Crown Court decision not to stay the prosecution non-reviewable under s.29(3)); cf R v Lewes Crown Court, ex p Sinclair (1993) 5 Admin LR 1 (claimant not permitted to circumvent inability to challenge sentence by challenging warrant of committal to prison). 32.2.11 Cardinal principle: Courts secure the scope of judicial review required by the rule of law. {1.3.5} 32.2.12 Crown court not reviewable: illustrations from the case law. R (AF) v Kingston Crown Court [2017] EWHC 2706 (Admin) [2018] 1 Cr App R 32 (post-conviction decision on bail pending sentence); R (Hunter) v Newcastle Crown Court [2013] EWHC 191 (Admin) [2014] QB 94 (refusal of application for defence costs out of central funds); R (Ludlam) v Leicester Crown Court [2008] EWHC 2884 (Admin) at §6 (refusal of representation order for post-conviction confiscation hearing); R (CPS) v Guildford Crown Court [2007] EWHC 1798 (Admin) [2007] 1 WLR 2886 (sentence); R (Faithfull) v Crown Court at Ipswich [2007] EWHC 2763 (Admin) [2008] 1 WLR 1636 (failure to make compensation order alongside forfeiture order); R (H) v Wood Green Crown Court [2006] EWHC 2683 (Admin) [2007] 1 WLR 1670 (remanding hostile witness in custody during trial); R (O) v Central Criminal Court [2006] EWHC 256 (Admin) (non-dismissal of charge); R v Sheffield Crown Court, ex p Brownlow [1980] QB 530 (order allowing jury vetting); R v Central Criminal Court, ex p Raymond [1986] 1 WLR 710 (order that counts lie on file); R v Leeds Crown Court, ex p Hussain [1995] 1 WLR 1329 (arraignment); R v Chelmsford Crown Court, ex p Chief Constable of the Essex Police [1994] 1 WLR 359 (decision during trial as to disclosure of material); R v Southwark Crown Court, ex p Michael Ward (1995) 7 Admin LR 395 (decision as to commencement date of trial); R v Maidstone Crown Court, ex p Shanks & McEwan (Southern) Ltd [1993] Env LR 340 (refusal to stay indictment as abuse of process); R v Southwark Crown Court, ex p Tawfick (1995) 7 Admin LR 410, 418A-419B (decision that no power to allow a private prosecution to be conducted in person); R v Greenwich Justices, ex p DeLeon [1999] COD 116 (drawing up of confiscation order); R (Shields) v Crown Court at Liverpool [2001] EWHC Admin 90 [2001] UKHRR 610 (refusal of legal aid); R (Regentford Ltd) v Canterbury Crown Court [2001] HRLR 362 (refusal to make defendant’s costs order); R (Salubi) v Bow Street Magistrates Court [2002] EWHC 919 (Admin) [2002] 1 WLR 3073 (Crown Court ruling as to whether to quash the indictment). 461

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32.2.13 Crown Court reviewable: illustrations from the case law. R v Aziz [2019] EWCA Crim 1568 at §52 (decision discharging anonymity order at the end of Crown Court trial); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at §16 (Lord Sumption: “The categories of case giving rise to judicial review of the Crown Court include … orders in proceedings against a person found unfit to plead, orders binding over an acquitted defendant; or orders made in the exercise of the Crown Court’s appellate jurisdiction”); R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 (refusal to extend time to challenge cost of third party clean-up order) at §36 (“the mere fact that there is some linkage to the holding of a trial on indictment is not of itself sufficient to bring the matter within the relevant phrase”), §37 (“the decision in this case does not arise from an issue between the Crown and the defendant company formulated in the indictment. Although it derived from the sentencing process, the relationship involved was not sufficiently close”); R (Yam) v Central Criminal Court [2015] UKSC 76 [2016] AC 771 (refusal to permit disclosure of in-camera trial material to the ECtHR); R (CPS) v Bolton Crown Court [2012] EWHC 3570 (Admin) [2013] 1 WLR 1880 (costs order made at adjournment of plea and case management hearing); R (O) v Harrow Crown Court [2003] EWHC 868 (Admin) [2003] 1 WLR 2756 at §14 (bail decision) (HL is [2006] UKHL 42 [2007] 1 AC 249); In re McC (A Minor) [1985] AC 528, 550C (appeal from magistrates); R v Maidstone Crown Court, ex p Gill [1986] 1 WLR 1405 (forfeiture order in relation to accused’s parent); R v Central Criminal Court, ex p Hutchinson [1996] COD 14 (decision to issue a search warrant); R v Maidstone Crown Court, ex p Clark [1995] 1 WLR 831 (sham arraignment); R v Central Criminal Court, ex p Randle [1991] 1 WLR 1087, 1103D-G (decision whether to stay proceedings as abuse of process); R v Wood Green Crown Court, ex p DPP [1993] 1 WLR 723 (orders for costs after prosecution offered no evidence); R (Eliot) v Crown Court at Reading [2001] EWHC Admin 464 [2001] 4 All ER 625 (extension of custody time limit); R (Commissioners of Inland Revenue) v Kingston Crown Court [2001] EWHC Admin 581 [2001] 4 All ER 721 (dismissal of charges under Criminal Justice Act 1987 s.6); R (Sullivan) v Maidstone Crown Court [2002] EWHC 967 (Admin) [2002] 1 WLR 2747 (local practice direction requiring defendants to sign defence statements); R (Customs and Excise Commissioners) v Canterbury Crown Court [2002] EWHC 2584 (Admin) at §23 (directions as to mutual assistance proceedings in magistrates’ court).

32.3 Judicial review of decisions regarding legal process. One set of situations sometimes treated with special restraint, where grounds for judicial review are sometimes said to be applicable only in a restricted way, are certain types of case where the defendant public authority’s function relates to legal process. However, the caution and restraint seen in the cases can be seen as an exemplar of, rather than an exception to, mainstream conventional judicial review with its flexibility and contextualism. 32.3.1 Judicial review and legal process: conventional grounds but intervention exceptional. R (JJ Management LLP) v HMRC [2020] EWCA Civ 784 [2020] 3 WLR 545 (speaking in the context of the HMRC power of informal investigation) at §74 (Simler LJ: “Judicial review of the exercise of [the] power is available on ordinary public law grounds but in practice it will take a wholly exceptional case on its legal merits to justify judicial review”), §60 (describing the “reasons for this reluctance by the courts to interfere with such decisions”), §63 (“HMRC, like all public authorities must exercise their powers so as to promote the statutory purpose for which they are given; and must act lawfully, exercising their powers in good faith and on a rational basis. However, … in practice it will take a wholly exceptional case on its legal merits to justify judicial review”); {32.3.12} (judicial review of conduct of investigation); {31.4} (flexi-principles); {P31} (context). 32.3.2 Judicial review and prosecutorial decisions: SC/HL cases. Dennis Hutchings [2019] UKSC 26 (judicial review of certification of suitability for trial without a jury), §57 (a decision “which should not be subject to the full spectrum of conventional judicial review challenge”), §§58, 60 (in parallel with common law position on judicial review of prosecutorial decisions, discussing the case law on this topic); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at 462

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§16 (Lord Sumption, surveying the case law), §32 (Lord Mance: “In the case of decisions to prosecute, a more appropriate forum for any challenge is usually the criminal process itself, in which the court has power to halt the proceedings if they constitute an abuse”); In re Loughlin [2017] UKSC 63 [2017] 1 WLR 3963 at §34 (doubting whether DPP’s decision, as to whether to refer sentence back to court, “truly analogous” to the case law which has “impelled reticence on the part of a court in reviewing any prosecutorial decision”); SXH v CPS [2017] UKSC 30 [2017] 1 WLR 1401 (Art 8 not engaged by decision to prosecute conduct which is not itself within the scope of Art 8); R v DPP, ex p Kebilene [2000] 2 AC 326, 369H-371G (“absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the [claimants] is not amenable to judicial review”); R v Hertfordshire County Council, ex p Green Environmental Industries Limited [2000] 2 AC 412, 426B-427E (Kebilene approach not directly relevant to statutory notice precursor to criminal prosecution). 32.3.3 Judicial review and prosecutorial decisions: PC cases. Commissioner of the Independent Commission of Investigations v Police Federation [2020] UKPC 11 (Commission and Commissioners having no express or implied power to prosecute); Commissioner of Police v Benjamin [2014] UKPC 8 (issue in judicial review proceedings as to whether police action in pursuing prosecution barred by purported instruction from DPP not to prosecute); Mohit v DPP of Mauritius [2006] UKPC 20 [2006] 1 WLR 3343 at §18 (English DPP’s prosecutorial decisions amenable to judicial review in principle); Sharma v Antoine [2006] UKPC 57 [2007] 1 WLR 780 at §14(5) (“judicial review of a prosecutorial decision, although available in principle, is a highly exceptional remedy”). 32.3.4 Judicial review and prosecutorial decisions: recent illustrations. R (L) v Director of Public Prosecutions [2020] EWHC 1815 (Admin) (granting judicial review of decision not to prosecute), §10 (despite “a very wide margin of discretion” so that the court “will only interfere with its assessment in highly exceptional cases”), §29 (asking whether decision showed “an appreciation of the essential elements of the offence and an assessment … of the sufficiency of the available evidence”), §36 (“there is … no evidence that the decision maker grappled with the assessment of the sufficiency of the available evidence against the elements of the offence”); R (FNM) v DPP [2020] EWHC 870 (Admin) [2020] 2 Cr App R 17 (decision not to prosecute quashed because review decision did not, as indicated, await and consider representations from complainant); R (Torpey) v DPP [2019] EWHC 1804 (Admin) [2019] ACD 98 (granting judicial review of decision not to prosecute, for irrationality), §43 (despite “a very strict self-denying ordinance”), §61 (lack of care and thoroughness in CPS review decision); R (John-Baptiste) v DPP [2019] EWHC 1130 (Admin) §19 (judicial review of decisions not to prosecute sparingly exercised); R (Campaign Against Antisemitism) v DPP [2019] EWHC 9 (Admin) [2019] ACD 36 at §15(i) (Hickinbottom LJ: “A prosecutorial decision is amenable to challenge by judicial review but only on conventional public law grounds”), §15(ii) (“If the decision-maker asks the right questions and informs himself properly, challenges to prosecutorial decisions will succeed ‘only in rare cases’ or ‘only in exceptionally rare circumstances’”), §15(iii) (“if the issue is essentially one of law … this court will more readily be prepared to find that [the] conclusion was wrong in law”), §15(iv) (“because a decision not to prosecute is final subject only to judicial review, the exercise of the court’s powers will be less rare in those circumstances”); R (AC) v DPP [2018] EWCA Civ 2092 [2019] 1 WLR 917 (judicial review of scope of Victims’ Right to Review Scheme applicable in cases where no prosecution); R (Monica) v DPP [2018] EWHC 3508 (Admin) [2019] QB 1019 at §44 (“The circumstances in which this court will intervene in relation to prosecutorial decisions are rare indeed”), §47 (“prosecutorial decisions may be corrected for error of law”, “in a sufficiently clear-cut case”); R (AL) v Serious Fraud Office [2018] EWHC 856 (Admin) (judicial review of action regarding deferred prosecution agreement) at §66 (judicial review of a prosecutor can be appropriate for “a serious error of law”), §67 (“only rarely and where there is very good reason and where an error by a prosecutor is material … [and cannot] be adequately addressed in alternative proceedings”), §84 (no “insuperable barricade behind which every prosecutor can hide”); R (Purvis) v DPP [2018] EWHC 1844 (Admin) [2018] 4 WLR 118 §§65, 85 (unreasonable decision not to prosecute); 463

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R v AB [2017] EWCA Crim 534 [2017] 1 WLR 4071 §§5, 43 (Crown Court ruling on local authority’s power to prosecute fraud appealable to the CACD under the Criminal Procedure and Investigations Act 1996 s.35(1)), §53 (decision to prosecute ultra vires here); R (D) v DPP [2017] EWHC 1768 (Admin) [2017] ACD 106 (judicial review of decision not to prosecute) at §25 (review on conventional grounds but “the Court will proceed with caution – having well in mind that there will already have been a [Victim’s Right to Review] scheme review and that the decision not to prosecute is vested in the prosecutor not the Court, a matter of constitutional importance”). 32.3.5 Policy-adherence duty and prosecutorial decisions. {6.2.6} (duty of adherence to policy guidance); R (Officer W80) v Independent Office for Police Conduct [2019] EWHC 2215 (Admin) [2019] ACD 134 at §66 (lawfulness of decision to direct commencement of disciplinary proceedings, in the light of Guidance and Code); R v Chief Constable of the Kent County Constabulary, ex p L [1993] 1 All ER 756, 770d (Watkins LJ: “the discretion of the CPS to continue or to discontinue criminal proceedings is reviewable by this court but only where it can be demonstrated that the decision was made regardless of or clearly contrary to a settled policy”); R (F) v CPS [2003] EWHC 3266 (Admin) at §79 (applying L); R v DPP, ex p C (1995) 7 Admin LR 385 (judicial review granted of decision not to prosecute claimant’s husband, for failure to act in accordance with established policy), 393C-D; R v Inland Revenue Commissioners, ex p Allen [1997] STC 1141 (asking whether decision to take criminal proceedings an unjustified departure from established practice). 32.3.6 Judicial review and prosecutorial decisions: other cases. R (Robson) v CPS [2016] EWHC 2191 (Admin) [2017] 4 WLR 27 (successful judicial review of decision to prosecute rather than issue a conditional caution); R (S) v CPS [2015] EWHC 2868 (Admin) [2016] 1 WLR 804 at §28 (“difficult to conceive” of circumstances where judicial review will succeed against decision to prosecute, abuse of process and evidential deficiencies being addressed through the criminal process); R (F) v DPP [2013] EWHC 945 (Admin) [2014] QB 581 (successful judicial review challenge to decision not to prosecute for rape), §6 (error of law), §26 (facts capable of giving rise to rape); R (Guest) v DPP [2009] EWHC 594 (Admin) [2009] 2 Cr App R 426 (quashing decision not to prosecute, and quashing conditional caution, because fundamentally flawed); R (B) v DPP [2009] EWHC 106 (Admin) [2009] 1 WLR 2072 (judicial review granted of decision to discontinue prosecution); R (Da Silva) v DPP [2006] EWHC 3204 (Admin) at §23 (decision not to prosecute reviewable); R (Dennis) v DPP [2006] EWHC 3211 (Admin) (inadequately reasoned decision not to prosecute for criminal negligence after coroner’s verdict of unlawful killing); R (Pepushi) v CPS [2004] EWHC 798 (Admin) [2004] INLR 638 at §49 (“save in wholly exceptional circumstances, applications in respect of pending prosecutions that seek to challenge the decision to prosecute should not be made to this court. The proper course to follow … is to take the point in accordance with the procedures of the Criminal Courts”); R v HM Commissioners of Inland Revenue, ex p Dhesi The Independent 13 November 1995 (decision to apply for voluntary bill of indictment reviewable on limited grounds); R v Attorney-General, ex p Rockall [2000] 1 WLR 882 (judicial review of refusal to revoke consent to prosecution); R v Attorney-General, ex p Ferrante The Independent 3 April 1995 (judicial review of refusal to authorise proceedings); R v Panel on Take-overs and Mergers, ex p Fayed [1992] BCC 524, 536C-D (“in the absence of evidence of fraud, corruption or mala fides, judicial review will not be allowed to probe a decision to charge individuals in criminal proceedings”); R v DPP, ex p Manning [2001] QB 330 (judicial review granted of DPP’s decision not to prosecute following unlawful killing inquest verdict); R (Pullen) v Health and Safety Executive [2003] EWHC 2934 (Admin) (whether error of law or unreasonableness in HSE’s decision not to prosecute); R v DPP, ex p Jones 23 March 2000 unreported (decision not to prosecute vitiated by error of law); R v Inland Revenue Commissioners, ex p Mead [1993] 1 All ER 772 (Revenue decision to prosecute); R v Chief Constable of Kent, ex p L [1993] 1 All ER 756 (whether decision to prosecute, rather than caution, contrary to settled policy); R v DPP, ex p Camelot Group Plc (1998) 10 Admin LR 93 (refusing judicial review of decision not to prosecute, private prosecution being an effective and convenient alternative remedy); 464

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R (Compassion in World Farming) v Secretary of State for the Environment Food and Rural Affairs [2004] EWCA Civ 1009 at §47 (rare if ever for Court to make mandatory order requiring public authority to prosecute). 32.3.7 Decision to administer a caution. R (Owusu-Yianoma) v Chief Constable of Leicestershire [2017] EWHC 576 (Admin) [2017] ACD 48 at §27 (conditional caution quashed where statutory precondition, of sufficient evidence to charge the claimant with that offence, not satisfied); R (Stratton) v Chief Constable of Thames Valley Police [2013] EWHC 1561 (Admin) [2013] ACD 110 (caution quashed where implications not explained and no informed consent); R (Caetano) v Metropolitan Police Commissioner [2013] EWHC 375 (Admin) [2013] ACD 60 (caution quashed for flawed approach to public interest); R (Lee) v Chief Constable of Essex [2012] EWHC 283 (Admin) at §15 (Maddison J: “The court has jurisdiction to quash a caution but only in an exceptional case where a caution is administered in clear breach of the guidelines set out in the relevant Home Office circular”); R (Mondelly) v Metropolitan Police Commissioner [2006] EWHC 2370 (Admin) at §43 (whether police caution unreasonable or breach of clear and settled policy); R (Omar) v Chief Constable of Bedfordshire Constabulary [2002] EWHC 3060 (Admin) at §47 (caution quashed for “failure to consult the victim without sufficient good cause, the lack of a sufficiently comprehensive investigation, the mistakes as to fact and the consideration of irrelevant matters”); R v Commissioner of Police of the Metropolis, ex p P (1996) 8 Admin LR 6 (formal caution of 12-year-old quashed for clear breach of Home Office guidelines); R v Commissioner of the Metropolitan Police, ex p Thompson [1997] 1 WLR 1519 (judicial review granted of a police caution secured by inducement, contrary to relevant codes of guidance). 32.3.8 Decision to record a crime. R (Pitts) v Commissioner of Police of the Metropolis [2017] EWHC 646 (Admin) [2017] ACD 61 (unreasonable decision to continue to record reported incident as a crime of rape). 32.3.9 Magistrate’s decision to issue a summons. R (Johnson) v Westminster Magistrates’ Court [2019] EWHC 1709 (Admin) [2019] 1 WLR 6238 at §§14, 17, 40 (decision to issue a summons for a private prosecution vitiated by error of law as to whether ingredients of offence prima facie present), applied in R (Mohamed) v Waltham Forest LBC [2020] EWHC 1083 (Admin) [2020] 1 WLR 2929 at §24 (summons can be quashed for insufficiency of information “if sufficient information could never be provided to the magistrate”); R (Lowden) v Gateshead Magistrates’ Court [2016] EWHC 3536 (Admin) [2017] 2 Cr App R 1 at §46 (no reasonable ground to declining to issue summons for private prosecution). 32.3.10 Attorney General’s superintendence function. R (Slade) v HM Attorney General [2018] EWHC 3573 (Admin) [2019] ACD 24 (no grounds for interfering with AG’s decision declining to conduct a review into a collapsed prosecution), §39 (“If [prosecutorial decisions] are justiciable only in exceptional cases, this must be all the more so in a situation where the AG was deciding whether or not to undertake further inquiry in a case where a detailed investigation had already been carried out under the aegis of the DPP”). 32.3.11 Decision as to mode of criminal trial. Dennis Hutchings [2019] UKSC 26 (judicial review of certification of suitability for trial without a jury), §57 (a decision “which should not be subject to the full spectrum of conventional judicial review challenge”), §54 (discussing the “curtailment of the full spectrum of judicial review … obviously intended” by the primary legislation), §§58, 60 (in parallel with common law position on judicial review of prosecutorial decisions). 32.3.12 Judicial review of conduct of investigation. R (JJ Management LLP) v HMRC [2020] EWCA Civ 784 [2020] 3 WLR 545 at §74 (Simler LJ: “Judicial review of the exercise of [the] power [to conduct informal investigations] is available on ordinary public law grounds but in practice it will take a wholly exceptional case on its legal merits to justify judicial review of a discretionary decision by HMRC to conduct an informal investigation”), §59 (“it is in ‘highly exceptional’ cases only that courts will intervene on judicial review to disturb decisions by an independent prosecutor or investigator as to whether 465

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to investigate … (or discontinue investigations …) in criminal or disciplinary proceedings”), §60 (“there are a number of reasons for this reluctance by the courts to interfere with such decisions: first, the powers in question are entrusted to the relevant authority and to no one else; second, such decisions are typically ‘polycentric’ in nature, involving a balance of policy and public interest considerations which are inter-connected; third, the powers are conferred in very broad and non-prescriptive terms; fourth, it is desirable for all challenges to take place in the substantive proceedings, with their procedural safeguards, to which the investigation may lead, and avoid satellite litigation; and fifthly it is desirable to avoid the blurring of roles as between the investigator and the courts”), §63 (“HMRC, like all public authorities must exercise their powers so as to promote the statutory purpose for which they are given; and must act lawfully, exercising their powers in good faith and on a rational basis. However, in light of the features to which I have referred, in practice it will take a wholly exceptional case on its legal merits to justify judicial review of a discretionary decision by HMRC to conduct an informal investigation”); R (AB) v Chief Constable of Hampshire [2019] EWHC 3461 (Admin) [2020] ACD 30 (investigation conducted lawfully); R (Wyatt) v Thames Valley Police [2018] EWHC 2489 (Admin) (approach to judicial review of decision to close investigation); R (Soma Oil and Gas Ltd) v Director of the Serious Fraud Office [2016] EWHC 2471 (Admin) [2016] ACD 130 (“very high hurdle” applicable to judicial review of SFO investigators). 32.3.13 Decision as to enforcement action. R (Gazelle Properties Ltd) v Bath and North East Somerset Council [2010] EWHC 3127 (Admin) (judicial review of issuing of enforcement notices, the decision that it was expedient to take enforcement action was vitiated by failure to have regard to relevant negotiations); R (Repic Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] EWHC 2015 (Admin) [2010] PTSR 550 at §68 (“this court will be very slow to categorise as unreasonable or irrational decisions which are taken by prosecuting or enforcement authorities concerning whether or not to prosecute or take enforcement action”); R v Commissioners of Customs and Excise, ex p International Federation for Animal Welfare [1998] Env LR D3 (prosecuting or enforcement authority’s failure to act examinable by judicial review but court will interfere only in truly exceptional situations); R v Director General of Water Services, ex p Oldham Metropolitan Borough Council (1998) 96 LGR 396 (granting judicial review, Director General having a statutory duty to take enforcement action); R v Hackney LBC, ex p Adebiri The Times 5 November 1997 (neither ultra vires nor unreasonable to take council tax enforcement action against asylum-seekers); R v Elmbridge Borough Council, ex p Active Office Ltd (1998) 10 Admin LR 561 (decision to take and pursue planning enforcement proceedings not irrational). 32.3.14 Refusal to pursue/continue with proceedings. R (Officer W80) v Independent Office for Police Conduct [2019] EWHC 2215 (Admin) [2019] ACD 134 (IOPC’s decision directing police service to bring gross misconduct proceedings vitiated by error of law); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 (decision to discontinue bribery investigation), §30 (Lord Bingham: “only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator”); R v DPP, ex p C (1995) 7 Admin LR 385 (refusal to prosecute claimant’s husband); R v Flax Bourton Magistrates Court, ex p Commissioners of Customs and Excise The Times 6 February 1996 (refusal to commit for trial on indictment); R v Secretary of State for the Environment, ex p Friends of the Earth Ltd (1995) 7 Admin LR 793 (decision to accept water companies’ undertakings and not take enforcement action); R v Commissioners of Customs and Excise, ex p International Federation for Animal Welfare [1998] Env LR D3 (prosecuting or enforcement authority’s failure to act only interfered with in truly exceptional situations); R v North Thames Regional Health Authority and Chelsea & Westminster NHS Trust, ex p L [1996] Med LR 385 (decision not to continue with disciplinary action); Secretary of State for Trade and Industry v Davies 19 November 1997 unreported (decision to continue with directors’ disqualification proceedings). 32.3.15 Decisions as to adjournment of proceedings. R (Parashar) v Sunderland Magistrates’ Court [2019] EWHC 514 (Admin) [2019] 2 Cr App R 18 (refusal to vacate trial date clearly wrong); R (DPP) v Sunderland Magistrates’ Court [2018] EWHC 229 466

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(Admin) [2018] 1 WLR 2195 at §103 (judicial review of decisions made on applications to adjourn trial hearings in magistrates’ courts “should only be mounted in exceptional circumstances and, if brought, must be pursued as a matter of great urgency”), §110 (decision based on material mistake of fact resulting in unfairness), §116(2) (importance of court being satisfied as to ingredients of material error of fact at the permission stage); R (Rathor) v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin) [2019] ACD 25 at §15 (refusal to adjourn trial infected by error of law); R (DPP) v Birmingham Magistrates’ Court [2017] EWHC 3444 (Admin) [2018] ACD 17 (unreasonable refusal to adjourn trial); R (Fana) v Special Adjudicator [2002] EWHC 777 (Admin) (unreasonable not to adjourn immigration appeal to allow psychiatric report); R v Redbridge Justices, ex p Gurmit Ram [1992] QB 384 (split bench of two magistrates under duty to adjourn to bench of three); L v Royal Borough of Kensington and Chelsea [1997] ELR 155 (unfair refusal to adjourn); R v Cheshire County Council, ex p C [1998] ELR 66 (unfair refusal to adjourn); Brabazon-Drenning v United Kingdom Central Council for Nursing Midwifery and Health Visiting [2001] HRLR 91 (breach of natural justice not to adjourn disciplinary proceedings); {61.7.1} (a right to time to prepare/deal); R (Visvaratnam) v Brent Magistrates’ Court [2009] EWHC 3017 (Admin) (magistrates wrong to adjourn where series of inexplicable errors by prosecution). 32.3.16 Judicial review of magistrates’ interlocutory decisions. 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”), §16 (appropriate here); R (DPP) v Walsall Magistrates’ Court [2019] EWHC 3317 (Admin) [2020] ACD 21 at §46 (challenges to “interlocutory orders made in the [magistrates] court … are sparingly entertained”, but “justified” here: “the issues raised are of wide application, they are not dependent on the final result and there is no other way by which the orders for disclosure may be effectively challenged”), applying R (DPP) v Manchester and Salford Magistrates’ Court [2017] EWHC 3719 (Admin) [2019] 1 WLR 2617 at §14; Chesterfield Poultry Ltd v Sheffield Magistrates’ Court [2019] EWHC 2953 (Admin) [2020] 1 WLR 499 at §16 (judicial review as to whether prosecution time-barred entertained when magistrates proceedings not concluded); R (Parashar) v Sunderland Magistrates’ Court [2019] EWHC 514 (Admin) [2019] 2 Cr App R 18 at §45 (appropriate to pursue judicial review of refusal to vacate trial date); R (Poskitt) v Reading Magistrates’ Court [2018] EWHC 984 (Admin) [2018] 2 Cr App R 17 (judicial review granted of magistrates’ decision overturning a decision to admit co-defendant bad character evidence), §22 (Supperstone J: “this court has jurisdiction to hear an interlocutory [judicial review] from a decision of the magistrates’ court … though it is a jurisdiction to be exercised sparingly”), §26 (important to prohibit interim challenges during the course of a summary trial); R (Hoar-Stevens) v Richmond-upon-Thames Magistrates’ Court [2003] EWHC 2660 (Admin) at §2 (“Normally this court will not entertain an application for a quashing order in relation to a decision made in a magistrate’s court where the proceedings in that court are not complete”); R (Chief Constable of Nottinghamshire Police) v Nottingham Magistrates’ Court [2009] EWHC 3182 (Admin) [2010] 2 All ER 342 (judicial review of procedural ruling as to whether responsible authority should be permitted to appear at imminent licensing appeal); R (Watson) v Dartford Magistrates Court [2005] EWHC 905 (Admin) (judicial review of decision to grant prosecution adjournment), §6 (normal rule is court keeps out until magistrates have made their determination), §7 (but no restriction here where straightforward issue and clear principle); R v Bow Street Metropolitan Stipendiary Magistrate, ex p Noncyp Ltd [1990] 1 QB 123 (preliminary decision whether to admit evidence); Government of the United States of America v Bowe [1990] 1 AC 500, 526G-H (“generally speaking, the entire case … should be presented to the magistrate before either side applies for a prerogative remedy”). 32.3.17 Judicial review of acquittals/dismissal of charges. Forbes v Attorney General of Jamaica [2009] UKPC 13 (judicial review not appropriate to challenge decision to acquit an accused), §12 (“nothing would be achieved”, because “the important point is not whether the verdict of acquittal can be set aside but whether the accused can be tried again. That question can only be determined in criminal proceedings against the accused”); R (CPS) v Norwich Magistrates Court [2011] EWHC 82 (Admin) at §26 (quashing magistrates’ decision 467

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dismissing charge on basis of no case to answer, and remitting for rehearing); R v Dorking Justices, ex p Harrington [1984] AC 743 & R v Bournemouth Crown Court, ex p Weight [1984] 1 WLR 980 (whether, as a corollary of the principle of ‘double jeopardy’, judicial review would lie to quash a criminal acquittal); R v Horseferry Road Magistrates Court, ex p DPP [1997] COD 172 (magistrate’s dismissal of an information a nullity); R v Dorking Justices, ex p Harrington [1984] AC 743, 753B; R (Wirral Health Authority) v Mental Health Review Tribunal The Times 26 November 2001 (appropriate to quash decision of MHRT discharging a convicted patient, since in law it was as though the decision had never been made); R (DPP) v Birmingham City Justices [2003] EWHC 2352 (Admin) (magistrates’ decision not to vacate a trial was unlawful, which justifies the quashing of the consequential acquittal); R (Omar) v Chief Constable of Bedfordshire Constabulary [2002] EWHC 3060 (Admin) (judicial review granted of police decision to caution, rather than prosecute), §45 (concluding that it was in the public interest for judicial review to be available, with the possibility of a prosecution ensuing); R v Portsmouth Crown Court, ex p DPP [1994] COD 13 (decision allowing appeal against magistrates’ conviction not an acquittal); R v Clerkenwell Metropolitan Stipendiary Magistrate, ex p DPP [1984] QB 821, 832E-H (refusal to hear the matter at all not an acquittal); R v Sutton Justices, ex p DPP [1992] 2 All ER 129, 133f-g (declaration available, not quashing order); R v Haringey Justices, ex p DPP [1996] QB 351, 360E-F (quashing order (certiorari) to quash decision to dismiss prosecution as an abuse of process; but case not remitted to justices with a direction to continue the trial); R v Neath and Port Talbot Justices, ex p DPP [2000] 1 WLR 1376 (case remitted for retrial where justices had wrongly refused to adjourn, but had dismissed the prosecution; DC explaining the factors affecting the discretion whether to grant a remedy); R (Campbell) v General Medical Council [2005] EWCA Civ 250 [2005] 1 WLR 3488 (quashing order refused in all the circumstances, albeit unlawfulness in disciplinary acquittal, where would expose doctor to double jeopardy); R (DPP) v North & East Hertfordshire Justices [2008] EWHC 103 (Admin) (quashing for unreasonable refusal to adjourn for blameless non-attendance of prosecution witness). 32.3.18 Decision to seek possession. R v South Hams District Council, ex p Gibb [1995] QB 158 (judicial review of decisions to institute proceedings to evict travellers); R v Bath City Council, ex p Nankervis & Wilson [1994] COD 271 (decision to seek possession); R v London Borough of Southwark, ex p Solomon (1994) 26 HLR 693 (successful judicial review of decisions (a) that accommodation offered suitable and (b) to commence possession proceedings); R v London Borough of Lambeth, ex p Campbell (1994) 26 HLR 618 (decision to serve a notice to quit); R v Hammersmith and Fulham LBC, ex p Quigley (2000) 32 HLR 379 (judicial review of decision to issue notice to quit, for failure to take account of cohabitee’s right to apply for assignment of tenancy); R (McCann) v Birmingham City Council [2004] EWHC 2156 (Admin) (judicial review of decision to obtain notice to quit; as to decision to seek possession); {27.3.14} (procedural exclusivity: the ‘defendant exception’). 32.3.19 Cart claims: judicial review of UT’s refusal of permission to appeal. {2.3} (Cart claims); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 (judicial review available in relation to UT’s refusal of permission to appeal, adopting the same approach as for “second-tier appeals”, namely (a) an important point of principle of practice or (b) some other compelling reason to hear the case); JD (Congo) v SSHD [2012] EWCA Civ 327 [2012] 1 WLR 3273 at §§23-26 (analysing the application of second-tier appeals test in asylum cases); R (Kuteh) v Upper Tribunal [2012] EWHC 2196 (Admin) (FTT’s failure to consider a significant witness statement, meaning UT’s refusal of PTA involving serious procedural irregularity); CPR 54.7A(7) (Cart claim: “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”); R (G) v Upper Tribunal [2016] EWHC 239 (Admin) [2016] ACD 52 (sufficient if UT materially erred in law in refusing permission to appeal for an argument having a real prospect of success). 468

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32.3.20 Judicial review of other refusals of permission to appeal. R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738 [2003] 1 WLR 475 (asking whether jurisdictional error); R (Strickson) v Preston County Court [2007] EWCA Civ 1132 at §27 (need for a pre-Anisminic jurisdictional error or “grave procedural irregularity”), §32 (whether “the judicial process itself has been frustrated or corrupted”), §34 (leaving open whether would include error of law on the face of the record); R (Sinclair Gardens Investments (Kensington) Ltd) v Lands Tribunal [2005] EWCA Civ 1305 [2006] 3 All ER 650 (applying Sivasubramaniam to Lands Tribunal refusal of leave to appeal from leasehold valuation tribunal); R (Sharing) v Preston County Court [2012] EWHC 515 (Admin) at §§4, 44 (county court refusal of permission to appeal quashed, for frustration or corruption of the judicial process, where apparent bias based on prejudgment); R (Khalil) v Truro County Court [2011] EWHC 3335 (Admin) at §40 (Beatson J, applying “the combined effect” of Cart (second-tier appeals test) and Sivasubramaniam); R (Capewell) v Stoke on Trent County Court [2011] EWHC 3851 (Admin). Cf R (Ground Rents (Regisport) Ltd) v Upper Tribunal [2013] EWHC 2638 (Admin) [2014] ACD 38 at §18 (Leggatt J, applying “ordinary well established principles of judicial review” at the substantive stage of a judicial review to UT refusal of permission to appeal; the Cart second-appeals test being restricted to the permission stage).

32.4 Anxious scrutiny. Through the common law principle of anxious scrutiny, which emerged prior to and operates independently of the HRA, the Courts apply a heightened standard of review to public authority action interfering with fundamental rights or constitutional principles, requiring the public authority to demonstrate proper justification. Anxious scrutiny operates as an ‘external prohibition’ on the exercise of public functions (like HRA s.6). Its twin is the common law principle of legality, an ‘internal inhibition’ which (like HRA s.3) interprets statutory powers so as not to permit unjustified interferences with fundamental rights. Anxious scrutiny has a procedural manifestation, requiring high standards of procedural fairness. In some cases anxious scrutiny is required of the defendant public authority. 32.4.1 Constitutional/common law rights. {7.6} 32.4.2 Principle of legality. {P35} 32.4.3 Fundamental rights/constitutional principles: intense review at common law. R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §126 (Lord Reed: “the test of unreasonableness has to be applied with sensitivity to the context, including the nature of any interests engaged and the gravity of any adverse effects on those interests. … The potential consequences of prolonged segregation are so serious that a court will require a cogent justification before it is satisfied that the decision to authorise its continuation is reasonable”); R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697 at §66 (“‘Irrationality’ is a high threshold, but … [the] court’s role is given added weight in a context where the right to life is at stake”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §245 (Lord Carnwath: “there is authority for a closer or more ‘intense’ form of review (or ‘anxious scrutiny’) in some contexts, particularly where fundamental human rights … or constitutional principles are at stake”); Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §60 (Lord Carnwath: “In Kennedy …, a majority of this court endorsed a flexible approach to principles of judicial review, particularly where important rights are at stake (see especially per Lord Mance, at paras 51-55). As Lord Mance said (para 51): ‘The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle. … The nature of judicial review in every case depends on the context.’ The judgment also endorsed (para 54) Professor Paul Craig’s conclusion (in ‘The Nature of Reasonableness’ (2013) 66 CLP 131) that – ‘both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker’s view depending on the context’”), §94 (Lord Mance), §109 (Lord Sumption). 469

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32.4.4 Profound human impact: intense review at common law. 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”); R (JA) v London Borough of Bexley [2019] EWHC 130 (Admin) at §23 (David Casement QC: “Where the decision being made is one that has a profound impact in relation to vulnerable persons it is necessary to give close scrutiny to the decision”), §47 (“Upon close scrutiny”, decision here unreasonable); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010 at §153 (Sir Terence Etherton MR, Green and Dingemans LJJ, rejecting as “flawed” the premise that “unless a claim relates to an interference with human rights …, the Courts will not examine the issue closely nor ‘anxiously’”; here, “there was no extant human rights issue. This does not mean, however, that a court will refrain from considering a matter closely if it raises issues of real importance to individuals. The Courts do not maintain any rigid classification or taxonomy of rights which is then used to govern the intensity of the scrutiny”). 32.4.5 Anxious scrutiny: heightened/close scrutiny. R (Elgizouli) v SSHD [2020] UKSC 10 [2020] 2 WLR 857 at §5 (Lady Hale: “Where the right to life is at stake, even decisions taken under prerogative powers may be subject to more anxious scrutiny than they would otherwise be, given the value which UK law attaches to the sanctity of all life”), §178 (Lord Reed, describing the anxious scrutiny approach as “now well-founded”), §198 (Lord Carnwath), §234 (Lord Hodge); R (Wells) v Parole Board [2019] EWHC 2710 (Admin) [2019] ACD 146 at §35 (cases involving detention and liberty require “an anxious scrutiny”); R (Hassan) v SSHD [2019] EWHC 1288 (Admin) at §116 (“heightened scrutiny” appropriate to “reasonableness review” of refusals of citizenship); R (NS) v SSHD [2019] EWHC 861 (Admin) [2019] ACD 60 at §70 (“heightened or more rigorous scrutiny” as the standard of review applicable to “decision as to whether a person is a victim of trafficking”), §86 (defendant’s failure of adopt “‘Anxious scrutiny’ of all relevant considerations”); R (Mackay) v Parole Board [2019] EWHC 1178 (Admin) at §36 (anxious scrutiny applicable to judicial review of parole board decisions, citing Browne [2018] EWCA Civ 1024 at §52); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §53 (applying anxious scrutiny, but emphasising importance of identifying what the “rights and effects actually are”), §131; R (D) v Secretary of State for Health [2006] EWCA Civ 989 at §§26-31 (common law anxious scrutiny involving a “pressing need” test); R v SSHD, ex p Bugdaycay [1987] AC 514, 531E-G (court applying “the more rigorous examination … according to the gravity of the issue”; “the most anxious scrutiny”), 537H (“a special responsibility lies on the court in the examination of the decision-making process”); R v SSHD, ex p Brind [1991] 1 AC 696, 757B-C (where fundamental right, “close scrutiny must be given to the reasons provided as justification for interference with that right”); R v SSHD, ex p Launder [1997] 1 WLR 839, 855H, 867D-E (anxious scrutiny applied in extradition context); Doherty v Birmingham City Council [2008] UKHL 57 [2009] AC 367 at §135 (comparing anxious scrutiny and HRA proportionality). 32.4.6 Anxious scrutiny and judicial review of immigration decisions. R (Brown) v SSHD [2015] UKSC 8 [2015] 1 WLR 1060 at §31 (SSHD decision to certify a claim as “clearly unfounded” is one “if challenged, to be subject to the most anxious scrutiny; 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 (also §9: anxious scrutiny as a “fundamental principle”) 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 (anxious scrutiny applicable to judicial review of asylum certification decisions); R (MN (Tanzania)) v SSHD [2011] EWCA Civ 193 [2011] 1 WLR 3200 (anxious scrutiny applicable to judicial review of refusal to recognise a “fresh claim”); R v SSHD, ex p Bugdaycay [1987] AC 514, 531E-G, 537H (HL applying anxious scrutiny in the asylum context). R (Razgar) v SSHD [2004] UKHL 27 [2004] 2 AC 368 at §16 (“such careful scrutiny as is called for where an irrevocable step, potentially involving a breach of fundamental human rights, is in contemplation”), §69 (Lord Carswell). 470

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32.4.7 Public authority’s reviewable duty to apply anxious scrutiny. JS v SSHD [2020] EWHC 500 (Admin) (judicial review of negative conclusive grounds determination as to whether victim of human trafficking) at §7 (HHJ Gore QC: “The … issue is whether the decision maker in this case gave adequate ‘anxious scrutiny’ to the decision”), §32 (reasoning “inconsistent” with “anxious scrutiny”); R (AG) v SSHD [2020] EWHC 386 (Admin) at §19 (in deciding whether representations constituting a “fresh claim”, “the defendant must apply … ‘anxious scrutiny’”); R (NS) v SSHD [2019] EWHC 861 (Admin) [2019] ACD 60 (decision as to whether a victim of trafficking) at §86 (defendant’s failure of adopt “‘Anxious scrutiny’ of all relevant considerations”); R (FK) v SSHD [2016] EWHC 56 (Admin) at §27 (in credibility assessment of trafficking claims, “a high standard of reasoning is required from the competent authority in order to demonstrate a careful and conscientious analysis of the relevant factors which have to be taken into account”), applied in R (EK) v SSHD [2019] EWHC 1696 (Admin) [2019] ACD 87 at §54 (“decision failed to evidence the rigorous standard of scrutiny required”); R (ROO (Nigeria)) v SSHD [2018] EWHC 1295 (Admin) at §87 (assessment of materials did not “reflect the decision of someone applying the necessary anxious scrutiny”); WM (DRC) v SSHD [2006] EWCA Civ 1495 at §10 (decision “irrational if it is not taken on the basis of anxious scrutiny”), §26 (“the necessary level of scrutiny was not applied”); R (YH) v SSHD [2010] EWCA Civ 116 [2010] 4 All ER 448 at §24 (anxious scrutiny meaning “the need for decisions to show by their reasoning that every factor has been properly taken into account”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010 at §158 (rejecting the “proposition that every decision maker has to apply ‘anxious scrutiny’ or some equivalent heightened process of evaluation to any decision made in a human rights context”). 32.4.8 Anxious scrutiny in environmental cases. R (McMorn) v Natural England [2015] EWHC 3297 (Admin) [2016] PTSR 750 at §§204-205 (Ouseley J, describing the “intense form of review” appropriate in environmental cases covered by the Aarhus Convention, citing R (Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114 at §37). 32.4.9 Substantial justification: the Pannick formulation (Smith test). See David Pannick QC’s formulation, endorsed by the CA in R v Ministry of Defence, ex p Smith [1996] QB 517, 554D-G, 563A and 564H-565B (“The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above”), discussed in Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §106. Cases applying the Pannick formulation include: R v SSHD, ex p Stafford [1999] 2 AC 38, 47G; R v SSHD, ex p Simms [2000] 2 AC 115, 130B; R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855 at §34; R v A Local Authority, ex p LM [2000] 1 FLR 612 (disclosure of information would be irrational under the Smith test); R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §115 (Smith test 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 (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392 [2006] 1 WLR 2649 at §56 (Smith test applied, whether or not HRA:ECHR Art 2 engaged, because could be life-or-death decision); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010 at §152 (Smith test described as remaining “good law”, in a case where there is an “interference with human rights”). 32.4.10 Cogent justification/substantial objective justification. R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §126 (Lord Reed, speaking in the context of prolonged segregation: “The potential consequences … are so serious that a court will 471

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require a cogent justification before it is satisfied that the decision to authorise its continuation is reasonable”); R (Mahmood) v SSHD [2001] 1 WLR 840 at §18 (Laws LJ, referring to the common law test as a requirement of “substantial objective justification”); R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855 at §37 (Lord Woolf MR, Robert Walker and Tuckey LJJ: “when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed … because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification”), applied in R (A) v Lord Saville of Newdigate [2001] EWCA Civ 2048 [2002] 1 WLR 1249 at §24; R v Immigration Officer, ex p Quaquah [2000] INLR 196, 206C (interference with rights requiring an “explanation that will withstand ‘careful scrutiny’”), 206G (“a necessity for there to be identified countervailing circumstances which would have compellingly outweighed the [claimant]’s rights”). 32.4.11 Justification: other illustrations. R v SSHD, ex p Turgut [2001] 1 All ER 719, 729e-j (“rigorous examination … considering the underlying factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State”), 728j-729a (decision “rigorously examined and subjected to the most anxious scrutiny”); R v SSHD, ex p Moon (1996) 8 Admin LR 477, 483F-G (“the Court will demand clear justification for an executive decision which interferes with an important right; not, however, so as to persuade the Court to agree with the executive view, but simply to demonstrate that there was a sufficient basis on which the view could sensibly be reached”); Chesterfield Properties Plc v Secretary of State for the Environment [1998] JPL 568, 579-580 (“where … a fundamental or constitutional right is threatened by an administrative decision of the state, the court on judicial review will require the public decision-maker to demonstrate that there existed substantial public interest grounds for his interference with the right”; “a substantial justification in the public interest”); R v SSHD, ex p Iyadurai [1998] Imm AR 470, 481-482 (“the court has jurisdiction to review to a higher standard than is adopted in at least the conventional statements of Wednesbury”). 32.4.12 Pressing social need/self-evident and pressing need test. R v SSHD, ex p Simms [2000] 2 AC 115, 129D (evidence not establishing “a case of pressing need which might prevail over the prisoners’ attempt to gain access to justice”); R v A Local Authority, ex p LM [2000] 1 FLR 612 (“pressing social need” test for disclosing information about child abuse allegations to another authority); R v Governor of Frankland Prison, ex p Russell [2000] 1 WLR 2027 at §11 (“Where the question arises as to the extent to which a power is impliedly conferred by statute to interfere with fundamental rights, there must be established a self-evident and pressing need for that power and the interference must be the minimum necessary to fulfil that need”); R (D) v Secretary of State for Health [2006] EWCA Civ 989 at §§26-31 (“pressing need” test, demonstrating “the distance the law has travelled” from “the Wednesbury bludgeon”); {35.4.3} (narrow, necessity-based scope of power which intrudes on constitutional right). 32.4.13 Anxious scrutiny and the structured proportionality method. R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §55 (Lord Carnwath, hoping for “rather more structured guidance … than such imprecise concepts as ‘anxious scrutiny’ …”); Dulgheriu v Ealing LBC [2019] EWCA Civ 1490 [2020] 1 WLR 609 at §82 (describing “the structured proportionality review”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §54 (Lord Mance: “The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. There seems no reason why such factors should not be relevant in judicial review even outside the scope of Convention and EU law”), reinforced in Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §95 (Lord Mance) and §60 (Lord Carnwath); {58.3.22} (adopting a disciplined framework of questions in addressing reasonableness); {P37} (proportionality method). 472

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32.4.14 Fundamental rights and relevancy/irrelevancy. {56.1.5} (anxious scrutiny and relevancy/irrelevancy); {56.3.7} (weight and fundamental rights/anxious scrutiny); {56.1.6} (fundamental rights as a relevant consideration?). 32.4.15 Anxious scrutiny and procedural fairness: Thirukumar. R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380 at §56 (Lord Wilson, referring to the principle applied in R (Detention Action) v First-tier Tribunal [2015] EWCA Civ 840 [2015] 1 WLR 5341 at §22 (Lord Dyson MR) and derived from R v SSHD, ex p Thirukumar [1989] Imm AR 402, 414 (Bingham LJ) that: “asylum decisions are of such moment that only the highest standards of fairness will suffice”); R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 [2005] 1 WLR 2219 at §8 (applying Thirukumar); R (Humnyntskyi) v SSHD [2020] EWHC 1912 (Admin) at §261 (Johnson J, accepting that “a high standard of procedural fairness is required where … the decision may have a significant impact on the fundamental rights of highly vulnerable individuals”); R (Dirshe) v SSHD [2005] EWCA Civ 421 at §13 (applying Thirukumar); Mohammed Kerrouche v SSHD [1997] Imm AR 610, 616 (anxious scrutiny a special approach “in relation to procedural failures than would be the case if a less important issue were at stake”), applied in JA (Afghanistan) v SSHD [2014] EWCA Civ 450 [2014] 1 WLR 4291 at §17; R v SSHD, ex p Duggan [1994] 3 All ER 277, 288d (approach where decision having “a direct impact on the liberty of the subject”); R v Army Board of the Defence Council, ex p Anderson [1992] QB 169, 187E (Board “dealing with an individual’s fundamental statutory rights, must by its procedures achieve a high standard of fairness”); R v Southwark Crown Court, ex p Gross [1998] COD 445, 452 (Court must be “vigilant” to guard against erosion of “stringent safeguards” appropriate for executive powers to encroach on privacy and liberty of the subject); cf Banks v Kingston-upon-Thames [2008] EWCA Civ 1443 [2009] LGR 536 at §65 (in homelessness regulations, “the procedural standards … are of the highest importance”, so that error of law if “any significant departure from the procedural rules prejudicial to the applicant”); {64.2.11} (reasons duty and fundamental rights: common law). 32.4.16 Whether anxious scrutiny would satisfy ECHR Art 13. {59.10.11} (ECHR Article 13 (not in HRA): the right to an effective remedy).

32.5 Systemic challenges. A recognisable type of judicial review claim challenges a measure, practice or policy guidance on the basis that it is ‘systemically’ flawed in public law terms. Courts may grant judicial review on the basis of a finding, by reference to design or assessed consequences, that the impugned target is systemically flawed, whether in procedural or substantive respects, including systemic incompatibility with HRA:ECHR rights. 32.5.1 Target for judicial review: system/scheme etc. {5.2.4} (scheme/system/operation). 32.5.2 Systemic unfairness/unfair system. R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 [2005] 1 WLR 2219 at §7 (Sedley LJ: “Potential unfairness is susceptible to … judicial intervention to obviate in advance a proven risk of injustice which … inheres in the system itself”); R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §76(1) (Singh LJ: “It is possible to challenge a system as being unfair”), §102 (“the process which was adopted by the Secretary of State … failed to comply with the requirements of procedural fairness”); R (Woolcock) v Secretary of State for Communities and Local Government [2018] EWHC 17 (Admin) [2018] 4 WLR 49 at §68 (“An administrative scheme will be open to a systemic challenge if there is something inherent in the scheme that gives rise to an unacceptable risk of procedural unfairness”; a “proportion of aberrant decisions” may evidence “an inherent systemic problem” and “may even be sufficient to create an inference that there is such a problem”, but “in many cases, the number or proportion of aberrant decisions alone will not itself satisfy the burden of showing that they result from something inherent in the system”); R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 at §48 (claim “that a rule, an administrative system, or a policy is unlawful because it gives rise to an unacceptable risk of unfairness”), 473

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§50 (applicable principles), §144 (“the high threshold required for a finding of inherent or systemic unfairness has been satisfied”); R (Detention Action) v First-tier Tribunal [2015] EWCA Civ 840 [2015] 1 WLR 5341 at §27 (whether “unfairness is inherent in the system itself”), §37 (“safeguards [not] sufficient to overcome the unfairness inherent in [the] system”); R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380 at §76 (breach of Art 8 because appeals certified “in the absence of a Convention-compliant system for the conduct of an appeal from abroad”); R (AD) v Hackney LBC [2019] EWHC 943 (Admin) [2019] PTSR 1947 at §48 (whether “something inherent” in “administrative scheme” that “gives rise to an unacceptable risk of procedural unfairness”, applying Woolcock); R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 [2015] AC 1344 at §41 (Lord Mance and Lord Hughes: “As a matter of domestic public law, complaint may be made in respect of [a] systemic failure”); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §131 (for criminal defence fee regulations to violate access to justice “what would need to be demonstrated is not just a possibility of individual instances of unfairness which would not undermine the integrity of the system but a risk of systemic unfairness”); R (ILPA) v Tribunal Procedure Committee [2016] EWHC 218 (Admin) [2016] 1 WLR 3519 at §67; R (S) v Director of Legal Aid Casework [2016] EWCA Civ 464 [2016] 1 WLR 4733 (exceptional case funding scheme not unlawful on grounds of systemic unfairness); R (Medical Justice) v SSHD [2011] EWCA Civ 1710 at §26 (immigration removal policy unlawful as allowing insufficient time to seek legal advice); R (Dirshe) v SSHD [2005] EWCA Civ 421 (absence of taping of asylum interviews a procedurally unfair system); R (MR (Pakistan)) v SSHD [2019] EWHC 3567 (Admin) [2020] 4 WLR 39 at §105 (no inherent unfairness in medical examination rules applicable to immigration detention undergone in prisons); R (Humnyntskyi) v SSHD [2020] EWHC 1912 (Admin) (policy for accommodation for individuals granted immigration bail systemically unfair), §274 (asking: “does the Secretary of State’s policy create a real risk of unfairness in a significant number (that is in more than a minimal number) of cases”), §286 (“Procedural unfairness is inherent in the policy”). 32.5.3 Unlawful systemic delay. R (O) v SSHD [2019] EWHC 148 (Admin) (whether chronic delays in the National Referral Mechanism for conclusive grounds decisions in respect of potential trafficking victims constitutes “unlawful systemic delay”), §112 (“no unfairness inherent in the arrangements and … nothing inherently irrational in the system being operated”); R (MK) v SSHD [2019] EWHC 3573 (Admin) [2020] 4 WLR 37 at §79 (“a complaint of multiple aberrant decisions (here, non-decisions by way of delay) which result from individual operational failures and which thereby signal a systemic problem … is a perfectly legally cognisable form of systems challenge”), §89 (claim failing on the evidence). 32.5.4 Systemic unreasonableness/unreasonable system. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 (unreasonable not to amend regulations to deal with impact) at §50 (approaching the unreasonableness of the regulations by asking: “what are the disadvantages of deciding not to ‘fine-tune’ the Regulations thereby allowing the … problem to persist unresolved; what are the disadvantages of adopting a solution to the … problem; would a solution be consistent or inconsistent with the nature of the … regime; and has a reasonable balance been struck …?”); R (AR) v Waltham Forest LBC [2020] EWHC 622 (Admin) [2020] PTSR 1023 at §75, 82 (reasonable system in place for secure accommodation); R (Leighton) v Lord Chancellor [2020] EWHC 336 (Admin) [2020] ACD 50 at §115 (“a rational and coherent scheme”, referring to Lawrence [2015] 1 WLR 3845); R (MR (Pakistan)) v SSHD [2019] EWHC 3567 (Admin) [2020] 4 WLR 39 at §105 (no inherent unreasonableness in medical examination rules applicable to immigration detention undergone in prisons). 32.5.5 Policy guidance: producing unlawful acts. R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin) [2015] 1 WLR 4497 at §118 (Green J: “The test is …: Would the Guidance if followed (i) lead to unlawful acts (ii) permit unlawful acts or (iii) encourage such unlawful acts?”), citing R (Tabbakh) v Staffordshire and West Midlands Probation Trust [2014] EWCA Civ 827 [2014] 1 WLR 4620 at §46 (Richards LJ: “a policy which, if followed, would lead to unlawful acts or decisions, or which permits or encourages such acts, will 474

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itself be unlawful”); R (Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin) [2016] PTSR 405 at §8 (Warby J: “a policy which, if followed, would lead to unlawful acts or decisions, or which permits or encourages such acts, will itself be unlawful. … A policy, or guidance, may encourage unlawful acts by dint of being ‘not clear and unambiguous’ and silent as to important circumstances, or ‘materially unclear or misleading’”); R (W) v SSHD [2020] EWHC 1299 (Admin) at §58 (“the court can and should intervene where guidance … will ‘lead to’ or ‘permit’ of ‘encourage’ unlawful acts … (with the gloss that ‘permit’ in this context means something like ‘sanction’)”), referring to Bayer Plc v NHS Darlington CCG [2020] EWCA Civ 449 [2020] PTSR 1153 (see §§196, 200, 207). 32.5.6 Policy guidance: unacceptable risk of unlawfulness. R (ZK) v Redbridge LBC [2019] EWHC 1450 (Admin) at §§37-38 (“unacceptable risk of illegality in the operation of a policy” as “not limited to the notion of fairness or to policies of a procedural nature; the principle is an applicable standard to judge substantive policies too”); BF (Eritrea) v SSHD [2019] EWCA Civ 872 [2020] 4 WLR 38 at §63 (guidance documents to prevent children being placed in immigration unlawful) at §63 (being “unlawful if, but only if, the way that they are framed creates a real risk of a more than minimal number of children being detained”; not sufficient that “individual mistakes or misjudgments made in the pursuit of a proper policy”); R (Suppiah) v SSHD [2011] EWHC 2 (Admin) at §137 (Wyn Williams J, accepting that: “as a matter of law a policy which cannot be operated lawfully cannot itself be lawful; further … a policy which is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision-making is itself an unlawful policy”); R (AD) v Hackney LBC [2019] EWHC 943 (Admin) [2019] PTSR 1947 at §51 (asking whether anything “inherent in the policy … gives rise to an unacceptable risk of unlawful decision-making”, and whether “there are realistic methods by which the policy can be lawfully implemented”), §47 (accepting that “the relevant principles … may be applied to … [a claim] that the [defendant’s] substantive policies lead inevitably to a substantively unlawful outcome”), §46 (applying Suppiah); R (MK) v SSHD [2012] EWHC 1896 (Admin) at §184 (policy of delaying asylum support decisions unlawful because of unacceptable risk of Art 3 harm); Bayer Plc v NHS Darlington CCG [2020] EWCA Civ 449 [2020] PTSR 1153 at §200 (CCGs’ policy, silent as to individual NHS trust implementation action, not “unlawful simply because it does not itself prescribe the lawful alternative and proscribe the unlawful”), §206 (policy not unlawful because “one of the ways in which Trusts might seek to implement the policy may be unlawful”). 32.5.7 Measure ‘inherently’ HRA-incompatible. R (British Medical Association) v Secretary of State for Health and Social Care [2020] EWHC 64 (Admin) [2020] Pens LR 10 (HRA challenge to suspension power in regulations) at §68 (asking “whether there is something inherent in [the] measure or rule that makes it incompatible with a fundamental right”); R (Just for Kids Law) v SSHD [2019] EWHC 1772 (Admin) [2019] 4 WLR 97 at §49 (“the test on a systemic challenge is whether there is an unacceptable risk of breach of article 8 rights … inherent in the system itself”); 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); R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35 [2015] AC 49 at §§59-60 (inappropriate to declare the entirety of a statutory instrument ultra vires, by reference to HRA-incompatibility, unless “the operation of the Order will always be such as to violate the rights of those [affected]”). 32.5.8 Systemic constitutional rights-incompatibility. R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §93 (whether fees effectively preventing constitutional right of access to justice to be decided according to “the likely impact of the fees on behaviour in the real world”). 32.5.9 Legislation: HRA-incompatibility in ‘nearly all cases’. R (Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542 at §§118-119 (Hickinbottom LJ, asking whether statutory scheme “incapable of being operated in a proportionate way in all or nearly all cases”), §178 (Davis LJ, asking whether “the measure in question is so 475

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framed as to make non-compliance in individual cases practically inevitable”, referring to R (MM (Lebanon) v SSHD [2017] UKSC 10 [2017] 1 WLR 771 at §§56-58); R (W) v SSHD [2020] EWHC 1299 (Admin) at §56 (“in a challenge to legislation …, the challenger must show that the legislation is … ‘incapable of being operated in a proportionate way in all or nearly all cases’”), §71 (test not met here); R (Britcits) v SSHD [2017] EWCA Civ 368 [2017] 1 WLR 3345 at §84 (ask whether “the rule … [is] incapable of being operated in a proportionate way and so [is] inherently unjustified in all or nearly all cases”, it being “the fact that, as a general rule, it is the decision in an individual case which may be incompatible with the Convention rights, rather than the relevant … rule itself”). 32.5.10 Legislation: HRA-incompatibility in ‘a legally significant number of cases’. R (Just for Kids Law) v SSHD [2019] EWHC 1772 (Admin) [2019] 4 WLR 97 at §50 (“whether the legislation … is capable of being operated in a manner which is compatible with the right or … whether it is bound in a legally significant number of cases to lead to an unjustified infringement of the right”); Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 at §74 (Lord Mance, asking whether legislation “will inevitably operate incompatibly in a legally significant number of cases”). 32.5.11 Policy guidance: HRA-incompatibility in ‘a significant number of cases’. R (Bibi) v SSHD [2015] UKSC 68 [2015] 1 WLR 5055 at §54 (Lady Hale, concluding that guidance would be “likely” to mean incompatibility with Art 8 rights in “a significant number of cases”), §55 (remedy is not to strike down the rule but recast the policy guidance), §60; R (W) v SSHD [2020] EWHC 1299 (Admin) at §57 (“where the challenge is to guidance … the question is whether there is a ‘significant number of cases’ in which the application of the guidance will lead to a breach of Convention rights”), §59 (“Does the regime, read as a whole, give rise to a real risk of unlawful outcomes in a ‘significant’ or ‘more than minimal number’ of cases?”), §66 (guidance here “gives rise to a real risk of unlawful decisions in a significant, and certainly more than minimal number of cases”). 32.5.12 Policy guidance: ‘real risk’ of HRA-incompatibility in ‘more than a minimal number of cases’. R (BF (Eritrea)) v SSHD [2019] EWCA Civ 872 [2020] 4 WLR 38 [2020] 4 WLR 38 at §63 (Underhill LJ: “the policy/guidance … will be unlawful, if but only if, the way that they are framed creates a real risk of a more than minimal number of children being detained”); R (Miller) v College of Policing [2020] EWHC 225 (Admin) at §219 (in challenge to Hate Crime Operational Guidance, “the Claimant must show that [the Guidance] creates a real risk of more than a minimal number of cases where Article 10(1) will be unlawfully infringed”). 32.5.13 Policy guidance: ‘real risk’ and international human rights law incompatibility. R (JP) v SSHD [2019] EWHC 3346 (Admin) [2020] 1 WLR 918 at §139 (practice incompatible with international obligations), §137 (because of “material risk” arising “in a significant number of cases”), §12 (incompatibility justiciable because obligations intended to be given effect by published policy).

476

P33 Flux. Rooted in judicial innovation, driven by the necessity of constitutional protection under the rule of law, judicial review has an ongoing developmental dynamism. 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

33.1 The developing law. The law of judicial review shifts, develops and matures. The common law tradition favours case-by-case development, focusing on the particular context under consideration. In controversial or difficult areas, development of the common law tends to be incremental and appropriately circumspect. 33.1.1 Keeping up with the developing law. {11.1.21} (need to keep abreast of developments). 33.1.2 Judicial review as a historical innovation. {2.1.7} (judicial review: the historical context); {1.1.2} (judicial review: a triumph for the common law). 33.1.3 Tides of change. R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §50 (Lord Mance, describing 1980 as “a period when the principles governing judicial review were at a relatively early stage of development”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 653C-D (Lord Scarman, referring to “the tide of the developing law”), 631F (Lord Wilberforce, explaining that: “recognition of the value of guiding authorities does not mean that the process of judicial review must stand still”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 407H (Lord Diplock: “the English law relating to judicial control of administrative action has been developed upon a case to case basis which has virtually transformed it over the last three decades”), 414D-F (Lord Roskill: “as a result of a series of judicial decisions since about 1950 … there has been a dramatic and indeed a radical change in the scope of judicial review. That change has been described – by no means critically – as an upsurge of judicial activism. … [The] branch of judicial review which is concerned with the control of executive action … has evolved, as with much of our law, on a case by case basis and no doubt hereafter that process will continue”); R v Hull University Visitor, ex p Page [1993] AC 682, 709B (Lord Slynn: “there has been a considerable development in the scope of judicial review in the second half of this century”); R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299, 310G (Roskill LJ: “The long legal history of the former prerogative writs and of their modern counterparts, the orders of prohibition, mandamus and certiorari, shows that their application has always been flexible as the need for their use in differing social conditions down the centuries has changed”). 33.1.4 Judicial decisions as part of the development of the constitution. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §40 (“the United Kingdom does not have a constitution in the sense of a single code of fundamental law which prevails over all other sources of law. Our constitutional arrangements have developed over time in a pragmatic as much as a principled way, through a combination of statutes, events, conventions, academic writings and judicial decisions”). 33.1.5 Steps towards a developed system. Ridge v Baldwin [1964] AC 40, 72-73 (Lord Reid: “We do not have a developed system of administrative law – perhaps because until fairly recently we did not need it. So it is not surprising that in dealing with new types of cases the courts have had to grope for solutions, and have found that old powers, rules and procedure are largely inapplicable to cases which they were never designed or intended to deal with”); O’Reilly v Mackman [1983] 2 AC 237, 279H-280A (Lord Diplock: “We did have by [1977] a developed system of administrative law”); Mahon v Air New Zealand Ltd

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[1984] AC 808, 816G (“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: and although it is a development that has already gone a long way towards providing a system of administrative law as comprehensive in its content as the droit administratif of countries of the Civil Law, albeit differing in procedural approach, it is a development that is still continuing. It has not yet become static”); R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §112 (“The common law of judicial review in England and Wales has not stood still in recent years. Starting from the received checklist of justiciable errors set out by Lord Diplock in the CCSU case [1985] AC 374, the courts (as Lord Diplock himself anticipated they would) 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”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 639H-640B (describing how rules of standing changed “over the years to meet the need to preserve the integrity of the rule of law despite changes in the social structure, methods of government and the extent to which the activities of private citizens are controlled by governmental authorities, that have been taking place continuously”). 33.1.6 ‘Never say never’. Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at §69 (Lord Dyson: “As the Court of Appeal said …, ‘never say never’ is often an appropriate catchphrase to use in the context of the common law. Nobody can predict how the law will develop in the future”); R (Ingenious Media Holdings plc) v HMRC [2016] UKSC 54 [2016] 1 WLR 4164 at §35 (Lord Toulson: “‘never say never’ is a generally sound maxim”); R v Panel on Take-overs and Mergers, ex p Fayed [1992] BCC 524, 536C (Steyn LJ: “In the developing field of judicial review it is usually unwise to say ‘never’”); R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323 at §48 (Lord Steyn: “Saying never in law often requires courts to swallow their words in circumstances not previously contemplated”). 33.1.7 Legal development and the common law tradition. R (Jollah) v SSHD [2020] UKSC 4 [2020] 2 WLR 418 at §33 (Lady Hale: “It is, of course, the case that the common law is capable of being developed to meet the changing needs of society”); Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at §67 (Lord Dyson: “the common law is flexible. It develops over time in response to changing circumstances. Sometimes, it takes giant steps forward. More often, it evolves gradually and cautiously. But any change must be justified, otherwise the law becomes unstable. This is particularly important where a change involves an inroad into a fundamental common law right”); Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29 [2002] 2 AC 122 at §33 (Lord Mackay: “The genius of the common law is its capacity to develop”); Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 377D-378G (Lord Goff, describing the nature of judicial development of the common law); Wainwright v Home Office [2003] UKHL 53 [2004] 2 AC 406 at §31 (Lord Hoffmann, pointing out that “the common law works” by identifying “underlying values”, being “a value which underlies the existence of a rule of law”); Douglas v Hello! Ltd [2001] QB 967 at §109 (Sedley LJ: “The common law, and equity with it, grows by slow and uneven degrees. It develops reactively, both in the immediate sense that it is only ever expounded in response to events and in the longer-term sense that it may be consciously shaped by the perceived needs of legal policy. The modern law of negligence exemplifies both senses”); Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 183B-E (Lord Scarman, describing the “task … to search the overfull and cluttered shelves of the law reports for a principle, or set of principles recognised by the judges over the years but stripped of the detail which, however appropriate in their day, would, if applied today, lay the judges open to a justified criticism for failing to keep the law abreast of the society in which they live and work. It is, of course, a judicial commonplace to proclaim the adaptability and flexibility of the judge-made common law. But this is more frequently proclaimed than acted upon. The mark of the great judge from Coke through Mansfield to our day has been the capacity and 478

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the will to search out principle, to discard the detail appropriate (perhaps) to earlier times, and to apply the principle in such a way as to satisfy the needs of their own time. If judge-made law is to survive as a living and relevant body of law, we must make the effort, however inadequately, to follow the lead of the great masters of the judicial art”); In re S (Hospital Patient: Court’s Jurisdiction) [1996] Fam 1, 19G (“the common law should respond to social needs as they are manifested, case by case”); R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19, 48A (Lord Hobhouse); R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 [2013] QB 618 at §80 (“The practice of the courts is not frozen”). 33.1.8 The incremental approach: case-by-case development. {11.1.5} (cases turning on their facts); {31.4} (‘flexi-principles’); R (Elgizouli) v SSHD [2020] UKSC 10 [2020] 2 WLR 857 at §170 (Lord Reed: “the common law is subject to judicial development, but such development builds incrementally on existing principles”), §193 (Lord Carnwath: “the power of the courts to develop the common law … is a power to be exercised with caution”); In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3 [2015] AC 1016 at §61 (Lord Mance: “The common law moves, so far as possible, incrementally and, when some greater shift takes place, it can be expected to be based on some general social consensus that it is appropriate”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §133 (Lord Toulson: “The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs”), §52 (Lord Mance: “The common law has continued to evolve”); Woodland v Swimming Teachers Association [2013] UKSC 66 [2014] AC 537 at §28 (Lady Hale: “The common law is a dynamic instrument. It develops and adapts to meet new situations as they arise. Therein lies its strength. But therein also lies a danger, the danger of unbridled and unprincipled growth to match what the court perceives to be the merits of the particular case. So it must proceed with caution, incrementally by analogy with existing categories, and consistently with some underlying principle. … But 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 (Youngsam) v Parole Board [2019] EWCA Civ 229 [2020] QB 387 at §56 (Leggatt LJ: “the primary task of any court is to decide the case actually before it … which gives scope for the law to evolve and adapt as circumstances change or new factual situations are presented”); R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331 [2017] 1 WLR 4750 at §52 (Sales LJ: “The procedural standards of fairness in the common law have developed over time as circumstances and social expectations change” and “the common law continues to develop”); R v Manchester Crown Court, ex p DPP [1993] 1 WLR 1524 (Crown Court reviewability), 1528C (“the law has developed on a case by case basis, not always with happy results”); O’Reilly v Mackman [1983] 2 AC 237 (procedural exclusivity), 285B-G (“exceptions should … be left to be decided on a case to case basis”); R v Kensington & Chelsea Royal LBC, ex p Hammell [1989] QB 518 (interim remedies), 538B (declining to “try to state any formula for the exercise of the discretion to grant a mandatory injunction” in judicial review); R v Kensington and Chelsea Royal LBC, ex p Grillo (1996) 28 HLR 94 (reasons), 105 (Neill LJ: “for the time being the law will have to develop on a case by case basis … it is too early to attempt to formulate any general principle”); R (Bibi) v Newham LBC [2001] EWCA Civ 607 [2002] 1 WLR 237 (legitimate expectation) at §25 (Schiemann LJ: “Several attempts have been made to find a formulation which will provide a test for all cases. However, history shows that wide-ranging formulations, while capable of producing a just result in the individual case, are seen later to have needlessly constricted the development of the law”); K v SSHD [2002] EWCA Civ 775 (negligence) at §11 (Laws LJ: “It is important that we should not make too great a sacrifice of the principle of legal certainty on the altar of the common law’s flexibility, or vice versa”). 33.1.9 Virtues of principle and certainty. {31.4.9}

33.2 Landmarks from the past. It is instructive to look back at the path which the developing law has taken and the key decisions of the Courts. Sometimes these were 479

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immediately recognisable as new directions for public law. Many were, or were presented as, consolidating a position, drawing on earlier strands of authority. Some involved rediscovering forgotten principles from the past. Some commentators would say that little was truly new. The true significance of some landmark cases was seen only years later when cases were considered, explained, reinterpreted. To get a sense of perspective about the development of public law, it is worth imagining being at different points in a timeline of some of those key landmark cases which are now seen to have reinforced the constitutional safeguard which is judicial review. 33.2.1 19 December 1951: judicial review for error of law on the face of the record (Shaw). R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 640B (Lord Diplock, describing R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 KB 338 as having “resurrected error of law upon the face of the record”); O’Reilly v Mackman [1983] 2 AC 237, 277C (Shaw as an “expansion of the grounds upon which orders of certiorari could be obtained”); also discussed in R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §17. {48.2.2} (error of law on the face of the record). 33.2.2 25 July 1955: judicial review for unsustainable conclusion of fact (Edwards v Bairstow). Edwards v Bairstow [1956] AC 14, 36 (Lord Radcliffe, recognising that where “the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination … the court must intervene”). {49.4.1} (unsustainable conclusion of fact as error of law). 33.2.3 14 March 1963: judicial review of administrative functions (Ridge v Baldwin). See Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 575F-G (Lord Oliver: “It is clear, in particular, since the decision … in Ridge v Baldwin [1964] AC 40, that the susceptibility of a decision to the supervisory jurisdiction of the court does not rest upon some fancied distinction between decisions which are ‘administrative’ and decisions which are ‘judicial’ of ‘quasi-judicial’”); R v Hillingdon LBC, ex p Royco Homes Ltd [1974] QB 720, 728 (Lord Widgery, referring to the judicial “obstacle … cleared away” by Lord Reid); O’Reilly v Mackman [1983] 2 AC 237, 279C-G (Lord Diplock: “subtle distinctions … destroyed” by Lord Reid). {34.3.2} (judicial review of administrative (not just judicial/ quasi-judicial) functions). 33.2.4 20 April 1967: judicial review of the prerogative (Lain). See R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815 at 838C-D (Sir John Donaldson MR, discussing R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864 (judicial review of non-statutory body set up under the prerogative): “The Criminal Injuries Compensation Board … was an administrative novelty. Accordingly it would have been impossible to find a precedent for the exercise of the supervisory jurisdiction of the court which fitted the facts. Nevertheless the court not only asserted its jurisdiction, but further asserted that it was a jurisdiction which was adaptable thereafter”). {34.3.3} (judicial review of the Crown/ prerogative powers). 33.2.5 14 February 1968: judicial review for frustrating the legislative purpose (Padfield). See O’Reilly v Mackman [1983] 2 AC 237, 280A (Lord Diplock, referring to Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997 as a “landmark [case] … in which a too-timid judgment of my own in the Court of Appeal was (fortunately) overruled”). {53.1.2} (duty to promote and not frustrate the legislative purpose: the Padfield principle). 33.2.6 17 December 1968: judicial review for error of law (even with a statutory ouster) (Anisminic). In re A Company [1981] AC 374, 382G-H (Lord Diplock, recognising Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 as introducing error of law as a stand-alone ground: “Anisminic … made possible the rapid development in England of a rational and comprehensive system of administrative law on the foundation of the concept of ultra vires”); R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §54; {47.1.25} (error of law: Anisminic). {47.1.26} (error of law: Anisminic explained). 480

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33.2.7 21 October 1976: judicial review for breach of the duty of enquiry (Tameside). Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014. {51.1.1} (the Tameside duty of sufficient inquiry). 33.2.8 9 April 1981: liberal standing test in judicial review (National Federation). R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (recognising the liberal approach to standing and the link to the rule of law). {38.2.5} (standing: avoiding Lord Diplock’s rule of law ‘lacuna’). 33.2.9 10 February 1983: judicial review for error of precedent fact (Khawaja). R v SSHD, ex p Khawaja [1984] AC 74 (regalvanising the doctrine of precedent fact, by recognising illegal entrant as a precedent fact, emphatically overturning the very recent HL decision in R v SSHD, ex p Zamir [1980] AC 930 which had decided the same issue the opposite way). {49.1} (precedent fact). 33.2.10 25 April 1985: judicial review for substantive unfairness (Preston). R v Inland Revenue Commissioners, ex p Preston [1985] AC 835 (articulating the principle of power exercised so substantively unfairly as to be an abuse of power), followed in cases such as R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681. {54.1} (substantive unfairness). 33.2.11 25 April 1986: defendant’s duty of candour in judicial review (Huddleston). R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941, 945g (recognising that judicial review “to be conducted with all the cards face upwards on the table”). {10.4.2} (defendant’s duty of candour). 33.2.12 5 December 1986: judicial review of non-statutory bodies (Datafin). R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815 (judicial review of non-statutory body). {34.3.4} 33.2.13 24 June 1993: judicial review for external extradition abuse (Bennett). R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, recognising judicial review of committal on basis of prior extradition abuse. {65.1.2} (extradition abuse of power, vitiating domestic proceedings). 33.2.14 27 July 1993: availability of coercive remedies against the Crown (M). M v Home Office [1994] 1 AC 377 (recognising the availability of injunctions against the Crown at domestic law, notwithstanding R v Secretary of State for Transport, ex p Factortame Ltd [1990] 2 AC 85 and British Medical Association v Greater Glasgow Health Board [1989] AC 1211). {1.2.14} (the rule of law and coercive remedies). 33.2.15 3 November 1995: anxious scrutiny in a human rights case (Smith). R v Ministry of Defence, ex p Smith [1996] QB 517, 554D-G (the common law human rights-justification test), explaining the common law principle of anxious scrutiny, after the observations in R v SSHD, ex p Bugdaycay [1987] AC 514 and R v SSHD, ex p Brind [1991] 1 AC 696. {32.4} (anxious scrutiny); {32.4.9} (substantial justification: the Pannick formulation (Smith test)). 33.2.16 14 November 1995: the aversion to ex post facto reasons (Ermakov). R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302. {64.4.5} (retro-reasons: the Ermakov principles). 33.2.17 24 July 1997: the ‘principle of legality’ (Pierson). R v SSHD, ex p Pierson [1998] AC 539, 587H-589E (Lord Steyn, describing “the principle of legality” which had “served to protect procedural safeguards provided by the common law” but “applies with equal force to protect substantive basic or fundamental rights”), after cases like R v Lord Chancellor, ex p Witham [1998] QB 575. {35.1.1} (principle of legality recognised). 33.2.18 16 July 1999: substantive legitimate expectation (Coughlan). R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, recognising the unfair and unjustified breach of a substantive legitimate expectation; after R v Ministry for Agriculture 481

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Fisheries & Food, ex p Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714, and distinguishing R v SSHD, ex p Hargreaves [1997] 1 WLR 906; {54.2.3} (substantive legitimate expectation: Coughlan). 33.2.19 23 May 2001: common law proportionality in a human rights case (Daly). R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §21 (Lord Bingham, explaining that the “degree of intrusion … [is] greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners”), §23 (describing this as the application of “common law principles”): R (Quila) v SSHD [2010] EWCA Civ 1482 [2011] 3 All ER 81 (CA) at §34 (Sedley LJ, explaining that in Daly “the House of Lords, on the eve of the coming into force of the Human Rights Act 1998, took the opportunity to make it clear that proportionality was already required by the common law where an executive measure would interfere with a fundamental individual right”). {58.3.13} (common law proportionality: protecting basic (constitutional) rights). 33.2.20 2 February 2004: error of fact (E). E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 (recognising material mistake of fact, leading to unfairness); after R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 344G-345C and R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §53. {49.3.3} (‘material mistake of fact, leading to unfairness’: the E criteria). 33.2.21 12 November 2004: systemic unfairness (RLC). R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 [2005] 1 WLR 2219. {32.5.2} (systemic unfairness/unfair system). 33.2.22 1 March 2005: protective costs orders in judicial review (Corner House). R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 [2005] 1 WLR 2600, establishing the common law framework for PCOs in judicial review. {18.4} (public interest costs, capping and the environment). 33.2.23 31 October 2005: judicial review at common law of primary legislation (Jackson). R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 (accepting the availability of judicial review of primary legislation). {P12} (reviewing primary legislation). 33.2.24 13 December 2006: approach to disclosure in judicial review (Tweed). Tweed v Parades Commission for Northern Ireland [2006] UKHL 5 [2007] 1 AC 650 (enhanced duty of disclosure in judicial review, disapproving of the precious practice of summarising relevant documents without exhibiting them). {17.1.7}-{17.1.8} (procedural rigour: defendant’s evidence); {17.5.10} (disclosure in judicial review: necessary for fair and just determination). 33.2.25 26 November 2009: judicial review for error as to objective question of fact (A (Croydon)). R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 (recognising the question whether the claimant is a “child” as an “objective” question of fact for the reviewing Court, without it needing to be a precedent fact). {49.2.1} (objective question of fact: a species independent of precedent fact). 33.2.26 1 December 2009: constitutional inalienability of judicial review (Cart DC). R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin) [2011] QB 120 (DC) at §38 (Laws LJ, recognising the need for “public bodies … by means of the judicial review jurisdiction, [to] be kept within the confines of their powers prescribed by statute”, by the courts as “an authoritative judicial source”, as something which “cannot be dispensed with by Parliament”), endorsed in R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §30 (Lady Hale) and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§115, 138, 160; {1.3.7} (judicial review: an inalienable constitutional function required by the rule of law). 33.2.27 23 March 2011: judicial review for non-adherence to policy (Lumba). R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 (SC endorsing the public law duty of adherence to policy guidance). {6.2.6} (duty of adherence to policy guidance). 482

P33 Flux

33.2.28 22 June 2011: securing the scope of judicial review required by the rule of law (Cart SC). R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 (discussed in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§131-132); {1.3.5} (cardinal principle: Courts secure the scope of judicial review required by the rule of law). 33.2.29 28 September 2016: the principle of transparency. R (Justice for Health Ltd) v Secretary of State for Health [2016] EWHC 2338 (Admin) [2016] Med LR 599 (recognising “the principle of transparency” as “a common law principle”). {39.2.13} 33.2.30 26 July 2017: constitutionality in reviewing statutory powers (UNISON). R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 (SC demonstrating judicial review of an exercise of statutory power for incompatibility with a constitutional right). {60.1.10} 33.2.31 24 September 2019: constitutionality in reviewing non-statutory powers (Miller). R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 (SC demonstrating judicial review of an exercise of prerogative power for incompatibility with constitutional principle). {60.1.11} 33.2.32 22 June 2020: disciplined framework for common law reasonableness (Johnson). R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §50 (Rose LJ, approaching irrationality by using this “helpful framework”: “what are the disadvantages of deciding not to ‘fine-tune’ the Regulations thereby allowing the … problem to persist unresolved; what are the disadvantages of adopting a solution to the … problem; would a solution be consistent or inconsistent with the nature of the … regime; and has a reasonable balance been struck …?”); {58.3.22} (adopting a disciplined framework of questions in addressing reasonableness).

33.3 ‘Two-step’ approaches to legal development. Principles of judicial review sometimes develop in a dramatic ‘single-leap’. Often, progress is achieved far more subtly. Sometimes there is a ‘two-step’ approach. For example, a problem may be addressed in a case by stretching an established principle, and then a later case may explain or reinterpret what has really happened as the development of a new principle (almost as if a ‘mask’ were being removed). Another way forward is where a problematic older authority is distinguished as contextually different, finding the space to take a new course in a new case; and then later cases identify and choose from what are now divergent strands of authority. 33.3.1 Landmark cases: later reinterpretation. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §51 (Lord Carnwath, citing Professor Feldman: “what landmark cases decide and what they are later regarded as authority for may be very different”), §38 (describing “the major change brought about by Anisminic …, as interpreted in later cases”). 33.3.2 Development using an ultra vires ‘fig leaf’. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §81 (Lord Carnwath, citing Professor Craig’s discussion of the idea described by Sir John Laws, that “‘Ultra vires’ is, in truth, a fig leaf; it has enabled the courts to intervene in decisions without an assertion of judicial power which too nakedly confronts the established authority of the Executive or other public bodies”), §82 (“considerable force in these observations, at least as applied to review for errors of law”). 33.3.3 Using ‘jurisdictional error’ to introduce error of law. Step one: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (error of law described in the language of jurisdictional error and nullity). Step two: O’Reilly v Mackman [1983] 2 AC 237 (recognising that Anisminic introduced error of law independently of whether the error went to jurisdiction, and where description as a nullity unnecessary: see R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §54). {P44} (nullity); {P28} (ouster). 483

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33.3.4 Using unreasonableness to develop substantive unfairness/substantive legitimate expectation. {P54} (substantive unfairness). Step one: R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681 (describing unfairness as an abuse of power but linking that conclusion to unreasonableness). Step two: R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (recognising substantive unfairness not wedded to a test of unreasonableness, in the case of a substantive legitimate expectation). {54.2} (unjustified breach of a substantive legitimate expectation); {54.2.3} (SLE: Coughlan); {54.1.5} (substantive unfairness: the legal criteria of reasonableness and legitimate expectation); {54.2.4} (SLE: a governing legal criterion distinct from reasonableness). 33.3.5 Using error of law/unfairness to develop material error of fact. Step one: Edwards v Bairstow [1956] AC 14 (fundamental factual error described in the language of error of law) and/or R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 344G-345C (fundamental factual error described in the language of unfairness). Step two: E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 (treating error of established and relevant fact as a self-standing ground). 33.3.6 Using unreasonableness to develop proportionality. Step one: R v Ministry of Defence, ex p Smith [1996] QB 517, 554D-G (the common law human rights-justification test, based on anxious scrutiny and R v SSHD, ex p Bugdaycay [1987] AC 514 and R v SSHD, ex p Brind [1991] 1 AC 696). Step two: R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §21 (Lord Bingham, explaining that the “degree of intrusion … [is] greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners”), §23 (describing this as the application of “common law principles”); {58.3} (proportionality at common law). 33.3.7 Using precedent fact to develop objective fact. Step one: R v SSHD, ex p Khawaja [1984] AC 74 (“illegal entrant” an objective question of fact for the Court under the statutory scheme, through an analysis of precedent fact). Step two: R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 (“child” under the Children Act 1989 an objective question of fact for the Court under the statutory scheme, whether or not also a precedent fact); {49.1} (precedent fact); {49.2} (objective question of fact). 33.3.8 Temporary divergence: substantive legitimate expectation. Step one: R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (substantive legitimate expectation protected by means of a proportionality test, but only in certain circumstances, distinguishing R v SSHD, ex p Hargreaves [1997] 1 WLR 906). Step two: the reasonableness standard having fallen into disuse, without it being yet considered necessary to overrule Hargreaves. {54.2.3} (SLE: Coughlan); {54.2.12} (sub-category of SLE cases involving a reasonableness test); {54.2.4} (SLE: a governing criterion distinct from reasonableness).

33.4 Next steps in public law: forecasting the future. It would have been impossible reliably to forecast the landmark changes which have occurred in public law, or their timing. It would be implausible to suggest that the principles of judicial review are fully and finally developed, and that landmarks all lie in the past. Recognising the law’s dynamism, and studying the trends and lessons of the past, allows observers to pause to wonder what is next, and when it might come. It is possible to list some candidates, many of which have attracted relevant observations in the existing case law, possibly as hints or clues when looking ahead. 33.4.1 General presumptive duty to give reasons? Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §30 (Elias LJ: “it may be more accurate to say that the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so”); R v Lambeth LBC, ex p Walters (1994) 26 HLR 170 (Sir Louis Blom-Cooper QC: suggesting a general duty to give reasons); Stefan v General Medical Council [1999] 1 WLR 1293, 1301A-B (“There is certainly a strong argument for 484

P33 Flux

the view that what were once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions”); {39.2.13} (basic transparency duties/the principle of transparency). 33.4.2 Common law application of structured proportionality? R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §51 (Lord Slynn, describing it as time to recognise proportionality as a conventional common law ground for review), after Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410E (Lord Diplock, contemplating “the possible adoption in the future of the principle of ‘proportionality’”); R (British Civilian Internees – Far Eastern Region) v Secretary of State for Defence [2003] EWCA Civ 473 [2003] QB 1397 at §35 (“we have difficulty in seeing what justification there now is for retaining the Wednesbury test”); Somerville v Scottish Ministers [2007] UKHL 44 [2007] 1 WLR 2734 at §§55-56, 82, 147, 198 (leaving open whether proportionality an independent common law ground for judicial review); {58.3} (proportionality at common law); {58.3.22} (adopting a disciplined framework of questions in addressing reasonableness). 33.4.3 Onus on the defendant in judicial review? R v Civil Service Appeal Board, ex p Cunningham [1991] 4 All ER 310, 315j (Lord Donaldson MR: “the fact that [permission] has been granted calls for some reply from the [defendant]”); {42.2} (onus on the defendant); {42.2.1} (historical origins: the rule nisi (show cause) procedure). 33.4.4 Reviewability of the Crown Court: SCA s.29(3) encounters its Anisminic? {32.2.6} (response to the limitations of Crown Court reviewability: nullity/jurisdictional error); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at §16 (Lord Sumption: “The High Court’s powers of review have … been held to extend to any excess of jurisdiction by the Crown Court, even in relation to a trial on indictment”), after R v Maidstone Crown Court, ex p Harrow LBC [2000] QB 719. 33.4.5 Principle of constitutionality? {60.1} (constitutionality); {60.1.7} (the principle of legality articulated in terms of constitutional principle). 33.4.6 Common law principle of equal treatment? {55.1.8} (equality/equal treatment at common law); {55.1.13} (equal treatment: not a freestanding ground for judicial review). 33.4.7 Substantive unfairness independently of reasonableness? {54.1.5} (substantive unfairness: the legal criteria of reasonableness and legitimate expectation); {54.2.4} (SLE: a governing legal criterion distinct from reasonableness). 33.4.8 Monetary remedy for maladministration? Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 [2003] 1 WLR 1763 at §71 (need for a public law, not a private law, solution); Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 [2004] 1 WLR 1057 at §2 (“the courts must recognise on principled grounds the compelling demands of corrective justice”); R v Commissioners of Customs and Excise, ex p F & I Services Ltd [2001] EWCA Civ 762 at §73 (“That the cases do not include damages for abuses of power falling short of [misfeasance] in public office does not necessarily mean that door is closed to them in principle”); {25.3} (public law reparation: ‘no damages for maladministration’). 33.4.9 Human rights instruments as an exception to the dualist theory? {6.3.18} 33.4.10 Direct constitutional review of primary legislation? {12.3.5}

485

P34 Reviewability/non-reviewability. Judicial review applies to the exercise of public functions of public authorities, within which there are very few remaining forbidden areas. 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

34.1 Surveying the field. In deciding whether a body is or is not amenable to judicial review the focus is ultimately on the particular function rather than simply the body’s status and nature. A good starting-point for appreciating the scope of reviewability and non-reviewability is to survey some of the bodies whose activities have been treated as falling either side of the line. 34.1.1 Reviewable bodies/functions: some more recent examples. R (AW) v St George’s, University of London [2020] EWHC 1647 (Admin) at §68 (University a public body performing public functions); R (Granger-Taylor) v High Speed Two (HS2) Ltd [2020] EWHC 1142 (Admin) [2020] ACD 80 at §2 (judicial review of the “nominated undertaker appointed by the Secretary of State … under … the High Speed Rail (London–West Midlands) Act 2017”); R (Clarke) v Holliday [2019] EWHC 3596 (Admin) [2020] ACD 33 at §87 (Magnox non-statutory public inquiry treated as reviewable); R (Charlesworth) v Crossrail Ltd [2019] EWCA Civ 1118 (Crossrail’s disposal of unneeded land); R (Cityfibre Ltd) v Advertising Standards Authority [2019] EWHC 950 (Admin) [2019] Bus LR 1777 at §18 (Advertising Standards Authority); R (Ngole) v University of Sheffield [2019] EWCA Civ 1127 [2019] ELR 443 (University’s student disciplinary committee); R (London School of Science and Technology) v Pearson Education Ltd [2019] EWHC 3129 (Admin) at §§2, 13 (corporate entity acting as educational qualification awarding body, operating within statutory regulation regime of Ofqual); R (Sefton Metropolitan Borough Council) v Highways England [2018] EWHC 3059 (Admin) at §§8, 70 (Highways England); R (Ames) v Lord Chancellor [2018] EWHC 2250 (Admin) [2018] ACD 115 at §55 (Legal Aid Agency’s final offer in respect of Counsel’s fees); R (Fire Brigade Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (Admin) [2018] 3 CMLR 27 (fire authority’s new shift pattern for firefighters); R (Med Chambers Ltd) v Medco Registration Solutions Ltd [2017] EWHC 3258 (Admin) at §§3, 10 (company administering whiplash claim medical report portal scheme); R (Project Management Institute) v Minister for Cabinet Office [2016] EWCA Civ 21 [2016] 1 WLR 1737 at §38 (committee of the Privy Council to recommend to Her Majesty the Queen in Council that a Royal Charter be granted); R (English Bridge Union Ltd) v English Sports Council [2015] EWHC 2875 (Admin) [2016] 1 WLR 957 (Sports Council); R (Woods) v Chief Constable of Merseyside [2014] EWHC 2784 (Admin) [2015] 1 WLR 539 (police statutory misconduct regime); R (Simpson) v Chief Constable of Greater Manchester Police [2013] EWHC 1858 (Admin) [2014] ACD 20 (decision to dissolve pool of police promotion candidates). 34.1.2 Non-reviewable bodies/functions: some more recent examples. R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin) [2020] 4 WLR 4 (ITV decision as to party participation in pre-election debate); R (Holmcroft Properties Ltd) v KPMG LLP [2018] EWCA Civ 2093 (FSC-appointed skilled person with function of approving banks’ misselling compensation offers); R (Humanists UK) v Catholic Education Service [2018] EWHC 3427 (Admin) (recruitment guidance issued by CES to Catholic schools); R (Cole-Njie) v Methodist Church [2018] EWHC 2622 (Admin) at §§25-26 (disciplinary committees of Methodist Church); R (Underwritten Warranty Co Ltd) v FENSA Ltd [2017] EWHC 2308 (Admin) [2017] ACD 125 (building industry’s self-certification scheme).

P34 Reviewability/non-reviewability

34.1.3 Reviewable bodies/functions: some older examples. SIAC (R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin) [2011] QB 120); Election Court (R (Woolas) v Parliamentary Election Court [2010] EWHC 3169 (Admin) [2012] QB 1); registered social landlord (R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 [2010] 1 WLR 363 at §83 and R (McIntyre) v Gentoo Group Ltd [2010] EWHC 5 (Admin)); disciplinary tribunal of ILEX (R (Kaur) v Institute of Legal Executives Appeal Tribunal [2011] EWCA Civ 1168 [2012] 1 All ER 1435); Roman Catholic Archbishop appointing foundation governors (R (Parent Governors of Cardinal Vaughan School) v Archbishop of Westminster [2011] EWCA Civ 433 [2012] PTSR 291); Professional Conduct Committee of the Bar Council (R v General Council of the Bar, ex p Percival [1991] 1 QB 212); a consultant psychiatrist (R v Dr Caldbeck-Meenan, ex p Clerk to Cleveland Police Authority [1995] COD 152); managers of private psychiatric hospital (R (A) v Partnerships in Care Ltd [2002] EWHC 529 (Admin) [2002] 1 WLR 2610); an approved social worker (St George’s Healthcare NHS Trust v S [1999] Fam 26); a hospital’s Infertility Services Ethical Committee (R v Ethical Committee of St Mary’s Hospital (Manchester), ex p H (or Harriott) [1988] 1 FLR 512); Code of Practice Committee of the British Pharmaceutical Industry (R v Code of Practice Committee of the British Pharmaceutical Industry, ex p Professional Counselling Aids Ltd [1991] 3 Admin LR 697); Broadcasting Complaints Commission (R v Broadcasting Complaints Commission, ex p Owen [1985] QB 1153); BBC (R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185); Monopolies and Mergers Commission (R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763); Panel of Take-overs and Mergers (R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815); Bank of England (R v Bank of England, ex p Mellstrom [1995] CLC 232); Post Office (R v Post Office, ex p Association of Scientific, Technical & Managerial Staffs [1981] ICR 76); Central Arbitration Committee (R v Central Arbitration Committee, ex p Banking Insurance & Finance Union [1983] ICR 27); Civil Service Appeal Board (R v Civil Service Appeal Board, ex p Bruce [1989] 2 All ER 907); Army Board (R v Army Board of the Defence Council, ex p Anderson [1992] QB 169); District Valuer (R v Kidderminster District Valuer, ex p Powell (1992) 4 Admin LR 193); regional Electricity Board (R v Midlands Electricity Board, ex p Busby; R v Midlands Electricity Board, ex p Williamson The Times 28 October 1987); university with no Visitor (R (Galligan) v University of Oxford [2001] EWHC Admin 965 [2002] ELR 494); Visitors to the Inns of Court (R v Visitors to the Inns of Court, ex p Calder & Persaud [1994] QB 1); trustees of a Catholic diocese (R v Trustees of the Roman Catholic Diocese of Westminster, ex p Andrews (1990) 2 Admin LR 142); local ombudsman (R v Local Commissioner for Administration for the South etc, ex p Eastleigh Borough Council [1988] QB 855); Parliamentary Ombudsman (R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 WLR 621); Director of GCHQ (R v Director, Government Communications Headquarters, ex p Hodges [1988] COD 123); Magistrates’ Court Committee (R v Avon Magistrates’ Courts Committee, ex p Bath Law Society [1988] QB 409); state school governors (R v Board of Governors of Stoke Newington School, ex p M [1994] ELR 131); city technology college (R v Governors of Haberdashers’ Aske’s Hatcham College Trust, ex p T [1995] ELR 350); Supreme Court taxing office (R v Supreme Court Taxing Office, ex p Singh & Co (1995) 7 Admin LR 849); British Coal (R v British Coal Corporation, ex p Ibstock Building Products Ltd [1995] Env LR 277); Lord Chancellor (R v Lord Chancellor, ex p Stockler (1996) 8 Admin LR 590); Registrar of Births, Deaths and Marriages (R v Registrar General of Births, Deaths & Marriages, ex p Minhas [1977] QB 1); Industrial Tribunal (R v Industrial Tribunal, ex p Cotswold Collotype Co Ltd [1979] ICR 190); Lands Tribunal (R v Lands Tribunal, ex p City of London Corporation [1982] 1 WLR 258); VAT Tribunal (R v Value Added Tax Tribunal, ex p Happer [1982] 1 WLR 1261); Independent Committee supervising premium rate telephone services (R v Independent Committee for the Supervision of Telephone Information Services, ex p Firstcode Limited [1993] COD 325); PIA ombudsman (R (Mooyer) v Personal Investment Authority Ombudsman Bureau Ltd [2001] EWHC Admin 247 at §8); independent school regarding assisted place (R v Cobham Hall School, ex p S [1998] ELR 389); National Trust (Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705, 716f-h, 712d-e); privatised water company exercising statutory powers (R v Northumbrian Water Ltd, ex p Newcastle and North Tyneside 487

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Health Authority [1999] Env LR 715); airport operator (R v Fairoaks Airport Ltd, ex p Roads [1999] COD 168); airport coordinator (R v Airport Coordination Ltd, ex p Aravco Ltd [1999] EuLR 939); Secretary of the Central Office of Employment Tribunals (R v Secretary of the Central Office of the Employment Tribunals, ex p Public Concern at Work [2000] COD 302); London Metal Exchange (R v London Metal Exchange Ltd, ex p Albatros Warehousing BV 31 March 2000 unreported); voluntary adoption agency (R (Gunn-Russo) v Nugent Care Society [2001] EWHC Admin 566 [2001] UKHRR 1320); London Underground (R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) at §184); farmers’ markets operator (R (Beer) v Hampshire Farmers Market Ltd [2003] EWCA Civ 1056 [2004] 1 WLR 233); welsh assembly (R (South Wales Sea Fisheries Committee) v National Assembly for Wales [2001] EWHC Admin 1162); Independent Adjudicator (R (Siborurema) v Office of the Independent Adjudicator [2007] EWCA Civ 1365). 34.1.4 Non-reviewable bodies/functions: some older examples. BBC’s disciplinary tribunal (R v BBC, ex p Lavelle [1983] 1 WLR 23); the National Joint Council for the Craft of Dental Technicians (R v National Joint Council for the Craft of Dental Technicians (Disputes Committee), ex p Neate [1953] 1 QB 704); an official of the Post Office (R v Post Office, ex p Byrne [1975] ICR 221); the Royal Life Saving Society (R v Royal Life Saving Society, ex p Heather Rose Mary Howe [1990] COD 440); the IBA, acting under Articles of Association (R v Independent Broadcasting Authority, ex p Rank Organisation Plc The Times 14 March 1986); the Jockey Club (R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909); the Football Association (R v Football Association Ltd, ex p Football League Ltd [1993] 2 All ER 833); the Chief Rabbi (R v Chief Rabbi, ex p Wachmann [1992] 1 WLR 1036); the Insurance Ombudsman (R v Insurance Ombudsman, ex p Aegon Life Insurance Ltd [1994] CLC 88); the PIA ombudsman’s voluntary jurisdiction (R (Mooyer) v Personal Investment Authority Ombudsman Bureau Ltd [2001] EWHC Admin 247); independent school governors (R v Fernhill Manor School, ex p A [1994] ELR 67); Registrar of Criminal Appeals (R v Registrar of Criminal Appeals, ex p Pegg [1993] COD 192); Lloyds when regulating members (R (West) v Lloyds of London [2004] EWCA Civ 506 [2004] 3 All ER 251); Channel Tunnel Group Ltd (R v Eurotunnel Developments Ltd, ex p Stephens (1997) 73 P & CR 1); Parliamentary Commissioner for Standards (R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 WLR 669); the Showman’s Guild’s Appeal Tribunal (R v Showman’s Guild of Great Britain, ex p Print 31 July 1997 unreported); Court of the Chief Rabbi (R v London Beth Din (Court of the Chief Rabbi), ex p Michael Bloom [1998] COD 131); Federation of Communication Services (R v Panel of the Federation of Communication Services Ltd, ex p Kubis (1999) 11 Admin LR 43); Great Western Trains granting an exclusive taxi franchise (R v Great Western Trains Co Ltd, ex p Frederick [1998] COD 239); Head of the Administrative Court Office’s decision to refuse to release notes (R v Lord Chancellor’s Department, ex p O’Toole [1998] COD 269); non-maintained school with no formal governmental arrangement (R v Muntham House School, ex p R [2000] LGR 255); local authority’s refusal to sell land (R v Bolsover District Council, ex p Pepper [2001] LGR 43); ABTA’s disciplinary decisions (R v Association of British Travel Agents, ex p Sunspell Ltd [2001] ACD 88); charitable housing association providing residential home, acting under arrangement with local authority (R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366 [2002] 2 All ER 936); British Council accrediting language schools (R (Oxford Study Centre Ltd) v British Council [2001] EWHC Admin 207 [2001] ELR 803); decision not to agree to structured settlement in meeting damages judgment (R (Hopley) v Liverpool Health Authority [2002] EWHC 1723 (Admin)); decision to terminate secondment to National Crime Squad (R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 2, doubted in Manning v Ramjohn [2011] UKPC 20 at §34); Medical Defence Union (R (Moreton) v Medical Defence Union Ltd [2006] EWHC 1948 (Admin)). 34.1.5 ‘Public authority’ under the HRA and other statutory schemes. {9.4.3} (‘public authority’ under the HRA: principles); BBC v Sugar [2009] UKHL 9 [2009] 1 WLR 430 (BBC a “public authority” for purposes of Freedom of Information Act 2000); R v Natji [2002] EWCA Crim 271 [2002] 1 WLR 2337 (discussing “public authority” for the purposes 488

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of the Prevention of Corruption Act 1916 and “public body” under the Public Bodies Corrupt Practices Act 1889). 34.1.6 Reviewability left open/arguable. R (Coulter) v Independent Press Standards Organisation CIC [2018] EWHC 1017 (Admin) at §36 (leaving open whether IPSO amenable to judicial review); R (Ford) v Press Complaints Commission [2001] EWHC 683 [2002] EMLR 95 at §11 (arguable that PCC reviewable); R v National Health Service Executive, ex p Ingoldby [1999] COD 167 (arguable that panel set up by NHS Trust amenable to judicial review despite lack of statutory source); Modahl v British Athletic Federation Ltd 28 July 1997 unreported (CA) (Lord Woolf MR, commenting that it “could well be the case” that judicial review would have been available of the British Athletics Federation) (HL is 22 July 1999 unreported); Ex p Scott [1998] 1 WLR 226 (arguable that National Trust a statutory body exercising public functions, but no jurisdiction where challenge to its management of trust property, absent authorisation from the Charity Commissioners or the Chancery Division), R v Bishop of Stafford, ex p Owen [2001] ACD 83 (Bishop’s decision not to extend rector’s term of office probably amenable to judicial review); R v British Standards Institute, ex p Dorgard [2001] ACD 86 (British Standards Institute arguably reviewable, but not in relation to complaint arising out of an agreement); R (W) v Governors of B School [2001] LGR 561 (CA) at §34 (querying whether “a trade union may fall to be treated as a public body amenable to the judicial review jurisdiction”) (HL is at R (L (A Minor)) v Governors of J School [2003] UKHL 9 [2003] 2 AC 633).

34.2 Principles of reviewability.82 Within the case law on reviewability are articulated a series of interrelated indicia as to reviewability. The headline lessons are perhaps: (1) treat no single factor as determinative and no formulation as universal; (2) look especially for statutory or governmental underpinning; and (3) focus on the substance and effects of the function being discharged. 34.2.1 Reviewability in a nutshell. R (Ames) v Lord Chancellor [2018] EWHC 2250 (Admin) [2018] ACD 115 at §55 (Holroyde LJ and Green J, identifying these “principles. First, there is no universal test of when a decision will have a sufficient public law element to make it amenable to judicial review. It is a question of degree. Secondly, in deciding whether a particular impugned decision is amenable to judicial review, the court must have regard not only to the nature, context and consequences of the decision, but also to the grounds on which the decision is challenged. … Thirdly, the fact that the decision is made by a public body exercising a statutory power will not in itself be a conclusive indication that there is a sufficient public law element. … Fourthly, and conversely, the fact that the challenged decision relates to payments to be made by a public authority pursuant to a contract will not in itself be a conclusive indication that there is no sufficient public law element. Fifthly, it will be necessary to consider whether the challenged decision is one which is necessarily involved in the performance of a public function, or is merely incidental or supplementary to a public function. Sixthly, if the decision does not have a sufficient public law element to make it amenable to judicial review, the fact that the aggrieved party has no other avenue of appeal is not a reason for treating the decision as if it were public law decision”); R v London Beth Din (Court of the Chief Rabbi), ex p Michael Bloom [1998] COD 131 (transcript) (Lightman J: “for a decision to be judicially reviewable … it must be a decision reached by a body exercising a statutory or (de facto or de jure) governmental function”; judicial review “is not available in case of a decision by a body whose legal authority arises from some consensual submission to its jurisdiction and has no such function”); R (Hopley) v Liverpool Health Authority [2002] EWHC 1723 (Admin) at §39 (Pitchford J, asking: “first, whether the defendant is a public body exercising statutory powers …; second, whether the function being performed in exercise of those powers was a private or public one; and third, whether the defendant was performing a public duty owed to the claimant in the particular circumstances 82The

equivalent paragraph in a previous edition was relied on in Re Sheridan Millennium Ltd [2007] NIQB 27 at §19 (Gillen J).

489

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under consideration”), applied in R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 2 at §§24-25. 34.2.2 Reviewability goes to jurisdiction/not conferred by parties’ agreement. R (Coulter) v Independent Press Standards Organisation CIC [2018] EWHC 1017 (Admin) at §28 (Warby J, explaining that the defendant did not dispute reviewability, but “this is a question of law, not one of discretion, and it is a jurisdictional issue. The parties cannot determine the law or confer jurisdiction, by agreement”); R v Durham City Council, ex p Robinson The Times 31 January 1992 (parties cannot create jurisdiction by agreement); R v Knightsbridge Crown Court, ex p Dunne [1994] 1 WLR 296, 301B; R v Walsall Metropolitan Borough Council, ex p Yapp [1994] ICR 528, 530F-G; cf R v Secretary of State for Foreign & Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892, 920E-G (matter “only justiciable as a matter of concession by the court, faced with the wish of the [claimants] to have it decided and of the [defendants’] non-objection to its decision”); {28.1.20} (no ouster of judicial review by contract). 34.2.3 No litmus test of reviewability. R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 2 at §13 (Scott Baker LJ: “The boundary between public law and private law is not capable of precise definition, and whether a decision has a sufficient public law element to justify the intervention of the Administrative Court by judicial review is often as much a matter of feel, as deciding whether any particular criteria are met”), §14 (“The starting point … is that there is no single test or criterion by which the question can be determined”); R (Beer) v Hampshire Farmers Market Ltd [2003] EWCA Civ 1056 [2004] 1 WLR 233 at §12 (Dyson LJ: “It is clear from the authorities that there is no simple litmus test of amenability to judicial review”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 838E (“In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors”); R v Derbyshire County Council, ex p Noble [1990] ICR 808, 814F (“there is no universal test which will be applicable to all circumstances which will indicate clearly and beyond peradventure as to when judicial review is or is not available”); Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 [2002] QB 48 at §66 (“there is no clear demarcation line which can be drawn between public and private bodies and functions. In a borderline case, such as this, the decision is very much one of fact and degree”); R v Legal Aid Board, ex p Donn & Co (a Firm) [1996] 3 All ER 1, 11h (matter of overall impression); R (Ames) v Lord Chancellor [2018] EWHC 2250 (Admin) [2018] ACD 115 at §55 (“no universal test”). 34.2.4 Emphasis is on function not office/status.83 R (Holmcroft Properties Ltd) v KPMG LLP [2018] EWCA Civ 2093 at §40 (Arden LJ: “the question is whether the body is carrying out a public law function”); R v Supreme Court Taxing Office, ex p Singh & Co (1995) 7 Admin LR 849, 853E (Latham J: “the question of jurisdiction [on judicial review] has to be resolved by looking at the function being performed by the person or body whose decision is being challenged, and not the office held by that person, or the general description of that body”); Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 583B-C (Lord Oliver: “the susceptibility of a decision to the supervision of the courts must depend, in the ultimate analysis, upon the nature and consequences of the decision and not upon the personality or individual circumstances of the person called upon to make the decision”); R v Jockey Club, ex p RAM Racecourses [1993] 2 All ER 225, 246j (Simon Brown J: “merely because some public body is amenable to judicial review it by no means follows that it is reviewable in all its functions”); R v British Broadcasting Corporation, ex p McAliskey [1994] COD 498 (Buckley J, suggesting that a private body used to implement government policy would be reviewable in the application of that policy); R (Hopley) v Liverpool Health Authority [2002] EWHC 1723 (Admin) at §48 (court “concerned primarily with the quality and purpose of the function which the [defendant] was performing at the material time”); {34.2.7} (public

83The

equivalent paragraph in a previous edition was relied on in Re JR 26 [2009] NIQB 101.

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function indicates reviewability; consensual powers indicate non-reviewability); {9.4.3} (‘public authority’ under the HRA: principles). 34.2.5 Whether reviewability statutorily-recognised/precluded. Senior Courts Act 1981 s.8(1) (High Court judges are reviewable “when exercising the jurisdiction of the Crown Court”: see R v Central Criminal Court, ex p Director of Serious Fraud Office [1993] 1 WLR 949, 954H) and s.27(3) (Crown Courts reviewable other than in matters “relating to trial on indictment” {32.2}); County Courts Act 1984 ss.83-84 (which “give explicit recognition to the function of the Divisional Court enabling it to review a determination in a county court and to deal with it by the issue of one of the prerogative writs”: see R v Leeds County Court, ex p Morris [1990] 1 QB 523 per Watkins LJ at 530E); R v Acting Returning Officer for Devon (etc), ex p Sanders [1994] COD 497 (Parliament’s clear intention that pre-voting judicial review precluded, the intended recourse to law being a post-voting election petition); {P28} (ouster); {36.2} (exclusive alternative remedy). 34.2.6 Statutory power/underpinning indicates reviewability. R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 847A-B (Lloyd LJ: judicial review available where “the source of power is a statute, or subordinate legislation under a statute”); Mohit v DPP of Mauritius [2006] UKPC 20 [2006] 1 WLR 3343 at §20 (Lord Bingham: presumption that statutory function reviewable absent compelling reason); Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 561G-H (“where any person or body exercises a power conferred by statute which affects the rights or legitimate expectations of citizens and is of a kind which the law requires to be exercised in accordance with the rules of natural justice, the court has jurisdiction to review the exercise of that power”); R v SSHD, ex p Doody [1994] 1 AC 531, 560D (“where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances”); R (A) v Partnerships in Care Ltd [2002] EWHC 529 (Admin) [2002] 1 WLR 2610 (managers of private psychiatric hospital reviewable because sufficient statutory underpinning); R (Siborurema) v Office of the Independent Adjudicator [2007] EWCA Civ 1365 at §49 (process “set up by statute”); R v Northumbrian Water Ltd, ex p Able UK Ltd [1996] 2 PLR 28 (privatised water utility exercising statutory powers); R v Cripps, ex p Muldoon [1984] QB 68, 87B-F (statutory tribunal reviewable unless it “should properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of power of judicial review by the High Court is for that reason inappropriate”). 34.2.7 Public function indicates reviewability; consensual powers indicate non-reviewability. R (Beer) v Hampshire Farmers Market Ltd [2003] EWCA Civ 1056 [2004] 1 WLR 233 at §16 (Dyson LJ: “unless the source of power clearly provides the answer, the question whether the decision of a body is amenable to judicial review requires a careful consideration of the nature of the power and function that has been exercised to see whether the decision has a sufficient public element, flavour or character to bring it within the purview of public law”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 838E-F (Sir John Donaldson MR: “Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction”); {34.5.1} (contractual/consensual relationship: non-reviewable); {34.5.2} (contractual/consensual relationship: reviewable); R v Disciplinary Committee of the Jockey Club, ex p Massingberd-Mundy [1993] 2 All ER 207, 219a-b (Datafin “likely to provide the surest answer”); R v Association of British Travel Agents, ex p Sunspell Ltd [2001] ACD 88 (no public or governmental element, rather powers deriving from contractual relationship); R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864, 882 (“[in early cases] the only constant limits throughout were that [the body] was performing a public duty”); R v London Metal Exchange Ltd, ex p Albatros Warehousing BV 31 March 2000 unreported at §23 (can be public law function even though contractual relationship); R v Lloyd’s of London, ex p Briggs (1993) 5 Admin LR 698, 714G-715B (no sufficient public law element in relationship between Lloyd’s and Names); R v Wear Valley District Council, ex p Binks [1985] 2 All ER 699, 703j (sufficient “public law element” in licensing market traders, whether for 491

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a public market or an informal market); Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, 526C-D (reviewable “state enterprise” with “shares … held by ministers” and which “carries on its business in the interests of the public”); R (A1 Veg Ltd) v Hounslow LBC [2003] EWHC 3112 (Admin) [2004] LGR 536 at §30 (sufficiently public function in regulating market under statutory powers). 34.2.8 Governmental function indicates reviewability. R (West) v Lloyds of London [2004] EWCA Civ 506 [2004] 3 All ER 251 (Lloyds not governmental); R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909, 923H (“not … woven into any system of governmental control of horse racing”; “in no sense governmental”), 931D (“the power needs to be identified as governmental in nature”); R (Moreton) v Medical Defence Union Ltd [2006] EWHC 1948 (Admin) (MDU not having governmental function nor woven into fabric of public regulation); R v Governors of Haberdashers’ Aske’s Hatcham College Trust, ex p T [1995] ELR 350, 357E-361H (college’s existence and essential characteristics deriving from exercise by government of statutory power); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 835F (panel set up as “an act of government”); R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864, 881B (CICB “set up by executive government”), 884E-F (“established by acts of government”); R v Showman’s Guild of Great Britain, ex p Print 31 July 1997 unreported (Showman’s Guild having no governmental underpinning and not exercising governmental powers); R v London Beth Din (Court of the Chief Rabbi), ex p Michael Bloom [1998] COD 131 (need for a “governmental function”); R v Muntham House School, ex p R [2000] LGR 255 (school not reviewable where no direct funding from government or formal government arrangement regarding admission or exclusion); R (Beer) v Hampshire Farmers Market Ltd [2003] EWCA Civ 1056 [2004] 1 WLR 233 (company responsible for farmers markets amenable to judicial review even though its functions not woven into a system of governmental control, because public function and having stepped into the shoes of the local authority). 34.2.9 Asking a ‘but for’ question. R v Advertising Standards Authority Ltd, ex p Insurance Service Plc (1990) 2 Admin LR 77, 86C-D (ASA “clearly exercising a public function which, if the Authority did not exist, would no doubt be exercised by the Director General of Fair Trading”); R v Chief Rabbi, ex p Wachmann [1992] 1 WLR 1036, 1041F-1042A (asking whether: “were there no self-regulatory body in existence, Parliament would almost inevitably intervene to control the activity in question”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 835G (“No one could have been in the least surprised if the panel had been instituted and operated under the direct authority of statute law”); R v Football Association Ltd, ex p Football League Ltd [1993] 2 All ER 833, 848j (“[no] evidence to suggest that, if the FA did not exist the state would intervene to create a public body to perform its functions”); R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909, 932B (Hoffmann LJ: “there is nothing to suggest that if the Jockey Club had not voluntarily assumed the regulation of racing, the government would feel obliged or inclined to set up a statutory body for the purpose”), cf 923F-G (Sir Thomas Bingham MR: “if the Jockey Club did not regulate this activity the government would probably be driven to create a public body to do so”). 34.2.10 Reviewability: focus on reality not source. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 407F (Lord Scarman: “the controlling factor … is not its source but its subject-matter”); R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864, 884B (reviewability never “dependent upon the source of the tribunal’s authority to decide … except where such authority is derived solely from agreement of parties to the determination”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 838H-839A (disappointing “if the courts could not recognise the realities of executive power and allowed their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted”); {34.2.4} (emphasis is on function not office/status); {2.1.33} (in public law, substance matters more than form: Lord Steyn’s observation). 34.2.11 Reviewability: consequences/rights/expectations. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 408F-409C (Lord Diplock, suggesting that a decision “susceptible to judicial review” would involve a decision-maker “empowered 492

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by public law … to make decisions” leading to “consequences which affect some person (or body of persons) … either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage”); Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 561G-562B (Lord Bridge: “where any person or body exercises a power conferred by statute which affects the rights or legitimate expectations of citizens and is of a kind which the law requires to be exercised in accordance with the rules of natural justice, the court has jurisdiction to review the exercise of that power”); R (Hopley) v Liverpool Health Authority [2002] EWHC 1723 (Admin) at §§56-57 (matter treated as non-reviewable because no decision affecting rights or obligations); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 847C (asking whether “the exercise of its functions [has] public law consequences”); R (Molinaro) v Kensington and Chelsea Royal LBC [2001] EWHC Admin 896 [2002] LGR 336 at §69 (“Public law bodies should not be free to abuse their power by invoking the principle that private individuals can act unfairly or abusively without legal redress”); R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 2 at §18 (decision not reviewable even though no private law remedy either).

34.3 Key conquests of reviewability. As well as extracting principles and working illustrations from the case law, a helpful way to approach and understand reviewability is to consider key ways in which judicial review has explored new territories, de-mystifying public power and breaking down old barriers. 34.3.1 The expanding jurisdiction of judicial review: general. R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864, 882A (Parker CJ: “the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet changing conditions”); R v Jockey Club, ex p RAM Racecourses [1993] 2 All ER 225, 248c-d (judicial review as “a dynamic area of law, well able to embrace new situations as justice requires”); R v Visitors to the Inns of Court, ex p Calder & Persaud [1994] QB 1, 41H (“Novelty is not ground the courts should fear to tread, in this or any other appropriate case”); R v National Health Service Executive, ex p Ingoldby [1999] COD 167 (categories of public law not closed); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815 at 838C-D (Sir John Donaldson MR, discussing previous landmark cases concerning prerogative and non-statutory powers: “The Criminal Injuries Compensation Board, in the form which it then took, was an administrative novelty. … [I]t would have been impossible to find a precedent for the exercise of the supervisory jurisdiction of the court which fitted the facts. Nevertheless the court not only asserted its jurisdiction, [and then] further … by deleting any requirement that the body should have a duty to act judicially; … by extending it to a person exercising purely prerogative power; and … that judicial review would extend to guidance circulars issued by a department of state without any specific authority”). 34.3.2 Judicial review of administrative (not just judicial/quasi-judicial) functions. Nakkuda Ali v Jayaratne [1951] AC 66, 77 (Lord Radcliffe, explaining that unless the defendant “is acting judicially or quasi-judicially … then it would not be according to law that his decision should be amenable to review”), 78 (“a general principle that is beyond dispute”); R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864, 882D-E (judicial review available “provided always that it has a duty to act judicially”); Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 575F-G (Lord Oliver: “It is clear, in particular, since the decision of your Lordships’ House in Ridge v Baldwin [1964] AC 40, that the susceptibility of a decision to the supervisory jurisdiction of the court does not rest upon some fancied distinction between decisions which are ‘administrative’ and decisions which are ‘judicial’ of ‘quasi-judicial’”); R v Hillingdon LBC, ex p Royco Homes Ltd [1974] QB 720, 728 (Lord Widgery, referring to the judicial “obstacle … cleared away” by Lord Reid); O’Reilly v Mackman [1983] 2 AC 237, 279C-G (Lord Diplock: “subtle distinctions … destroyed” by Lord Reid); R v SSHD, ex p Bugdaycay [1987] AC 514, 535F-H (judicial review of decisions although they “are administrative and discretionary rather than judicial and imperative”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815 493

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at 838C-D (Sir John Donaldson MR, describing Lord Diplock in O’Reilly v Mackman as “deleting any requirement that the body should have a duty to act judicially”). 34.3.3 Judicial review of the Crown/prerogative powers. Mohammed v Ministry of Defence [2017] UKSC 1 [2017] AC 649 at §15 (Lady Hale, explaining that before GCHQ [1985] AC 374 “the general position was that the courts would review whether what had been done fell within the scope of the prerogative but would not review how the prerogative had been exercised”, but after GCHQ “the exercise of executive power might be excluded from the scope of judicial review, not because of its source, whether statute or the prerogative, but because of its subject matter” as “certain acts of high policy, which by their very nature are not subject to judicial review”), §56 (Lord Mance: “Since [GCHQ] … the exercise of prerogative powers, including prerogative legislation in the form of an order in council, has not enjoyed any general immunity from judicial scrutiny. But the nature and subject matter of the particular prerogative power being exercised may make it inappropriate for adjudication before a domestic court”); Pitman v State of Trinidad and Tobago [2017] UKPC 6 [2018] AC 35 at §50 (Lord Hughes: “the prerogative of mercy … importantly is subject to judicial control through judicial review”, meaning there is “the existence of independent judicial control”); R (Shields) v Secretary of State for Justice [2008] EWHC 3102 (Admin) [2010] QB 150 (judicial review granted in relation to refusal of a pardon); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (judicial review of prerogative power); Mohit v DPP of Mauritius [2006] UKPC 20 [2006] 1 WLR 3343 at §21 (explaining position of Attorney-General by reference to prerogative powers); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 553D (“judicial review is as applicable to decisions taken under prerogative powers as to decisions taken under statutory powers save to the extent that the legality of the exercise of certain prerogative powers (eg. treaty-making) may not be justiciable”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everett [1989] 1 QB 811 (direct prerogative power); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 (prorogation prerogative power reviewable as to existence and extent of the power). 34.3.4 Judicial review of non-statutory (non-prerogative) functions. R v National Joint Council for the Craft of Dental Technicians (Disputes Committee), ex p Neate [1953] 1 QB 704, 706 (Lord Goddard CJ: “unless there is a body set up by statute and which has duties conferred on it by statute so that the parties are bound to resort to it … it would be a very novel proceeding indeed if we issued these prerogative writs to it”), 709 (Croom-Johnson LJ: a body is “in no sense a public body … [whose] authority does not depend upon any statutory jurisdiction”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815 (judicial review of non-statutory body); R v Entry Clearance Officer Bombay, ex p Amin [1983] 2 AC 818, 837G (judicial review albeit “no express statutory basis”); Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 192E-F (judicial review of circular with “no statutory force whatever”) and 193G-H (“non-statutory in form”); R v Norfolk County Council, ex p M [1989] QB 619, 622B (operation of child abuse registers, having “no statutory authority, but the basis of their operation has been prescribed by a series of departmental circulars”). 34.3.5 Judicial review of delegated legislation/devolved legislation. R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §221 (Bean LJ and Cavanagh J: “If there are public law grounds for challenging a statutory instrument … then it may be set aside. This does not impinge on the sovereignty of Parliament”); R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 (delegated legislation not in a “specially protected position”); R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 at §37 (referring to “the right and the duty of the court to review the legality of subordinate legislation”); Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §43; Toussaint v Attorney General of Saint Vincent & the Grenadines [2007] UKPC 48 [2007] 1 WLR 2825 at §18 (judicial review of subordinate legislation approved by Parliament); Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623 at §38 (“every member of the public adversely affected by a new regulation is entitled to challenge the lawfulness of that regulation on proper grounds”); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §13 (describing the different levels of parliamentary scrutiny for delegated legislation); 494

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AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 (judicial review of Act of devolved Parliament); {46.1.17} (incompatibility with higher legal authority: whether rule/policy incompatible with statute).

34.4 ‘Non-reviewable’ public functions. Certain functions, notwithstanding their ‘public’ nature, have traditionally been recognised as not amenable to judicial review. The High Court does not, for example, judicially review itself; nor proceedings in Parliament. In relation to the executive, given the implications for the rule of law and separation of powers, there may be few – if any – truly absolutely ‘forbidden areas’. It may be that these are areas of ‘modified review’. It may be that, in the contextual application of judicial review grounds, questions of public ‘law’ are seldom (if ever) seen as capable of arising in certain areas. But if they did they would, in principle, be justiciable. 34.4.1 No judicial review of the High Court. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§64-65 (no judicial review jurisdiction over the High Court), §133 (explaining what that position is consistent with the rule of law); Mazhar v Lord Chancellor [2019] EWCA Civ 1558 [2020] 2 WLR 541 at §97 (“the High Court is not amenable to judicial review”); In re A Company [1981] AC 374, 392G-H (“the High Court … was not, in the past, subject to control by prerogative writ or order, nor today is it subject to the judicial review which has taken their place”); R v SSHD, ex p Bulger [2001] EWHC Admin 119 at §13 (“review has never been possible in relation to the decisions of High Court Judges sitting as such … even when the High Court Judge is not actually sitting in court, if his decision is made as a High Court Judge”); R v Manchester Crown Court, ex p Williams & Simpson (1990) 2 Admin LR 817 (decision of High Court judge on application for leave to prefer voluntary bill of indictment a function conferred upon the Judge in his capacity as a High Court Judge, not amenable to judicial review); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §32 (Upper Tribunal not the “alter ego” of the High Court so as to be non-amenable to judicial review), §§30, 87 (judicial review available despite statutory designation of Upper Tribunal as a “superior court of record”, endorsing the Divisional Court’s decision [2011] QB 120); R (Okandeji) v Bow Street Magistrates Court [2005] EWHC 2925 (Admin) [2006] 1 WLR 674 (Extradition Act 2003 s.104(7) meaning district judge extradition decision following remittal deemed to be decision of the High Court, so not amenable to judicial review); cf R v Lord Chancellor, ex p Stockler (1996) 8 Admin LR 590 (judicial review of Lord Chancellor instructing or permitting acting judge to hear part-heard case); Administrative Court: Judicial Review Guide (2020 edition) at §5.3.6 (decisions of High Court, Court of Appeal and Supreme Court not challengeable by judicial review). 34.4.2 Judicial review of High Court/Senior Judges acting in reviewable capacities. Senior Courts Act 1981 s.8(1) (High Court judges are reviewable “when exercising the jurisdiction of the Crown Court”: see R v Central Criminal Court, ex p Director of Serious Fraud Office [1993] 1 WLR 949, 954H); R (Woolas) v Parliamentary Election Court [2010] EWHC 3169 (Admin) [2012] QB 1 at §§32, 55 (judicial review of Election Court, since: “despite the fact that a parliamentary election court is comprised of judges of the High Court, they do not act in that capacity”); R (Richardson) v Judicial Executive Board [2018] EWHC 1825 (Admin) at §§15, 17 (treating the Lord Chief Justice as amenable to judicial review, in the exercise of his statutory power under the Constitutional Reform Act 2005 s.7(2), when deciding what advice to give the Lord Chancellor as to purchase of text books for courts). 34.4.3 Territorial reach of judicial review. R (Barclay) v Lord Chancellor (No 2) [2014] UKSC 54 [2015] AC 276 at §58 (English courts having jurisdiction by judicial review over Order in Council amending constitutional arrangements for Sark, being made on the advice of the Government of the UK acting in whole or in part in the interests of the UK), §40 (but jurisdiction should be declined on an issue of ECHR-compatibility, which issues were for the courts of the Channel Islands as provided for by Parliament); R v Commissioner of Police of the Metropolis, ex p Bennett [1995] QB 313 (English court having no jurisdiction to entertain judicial review challenge to execution in England of warrant for arrest issued in Scotland); R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 495

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at §§26-29 (judicial review jurisdiction available in respect of overseas territories which are subject to the Queen’s dominion, especially where decision in question was procured by the UK Government); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 (judicial review of Secretary of State’s direction regarding licences in the territorial waters of UK overseas territory); Tehrani v SSHD [2006] UKHL 47 [2007] 1 AC 521 (London IAT’s decision on Scottish-resident asylum-seeker’s claim amenable to judicial review in Scotland). 34.4.4 Judicial review of the Attorney-General. R v Solicitor-General, ex p Taylor (1996) 8 Admin LR 206, 218F-G (Attorney-General’s “unique constitutional position” meaning even his statutory powers not amenable to judicial review); Gouriet v Union of Post Office Workers [1978] AC 435, 487G-488G (Attorney-General’s powers “not subject to … control and supervision by the courts”); Mohit v DPP of Mauritius [2006] UKPC 20 [2006] 1 WLR 3343 at §14 (Gouriet the current state of English law); R v Attorney-General, ex p Ferrante The Independent 3 April 1995 (no grounds for impugning decision refusing to authorise application to High Court to reopen coroner’s inquest); R v Attorney-General, ex p Rockall [2000] 1 WLR 882 (permission for judicial review of Attorney-General’s decision not to withdraw consent to a prosecution refused because no arguable ground). 34.4.5 Judicial review of primary legislation. {P12} (reviewing primary legislation); {12.3} (judicial review of primary legislation at common law); {7.4} (legislative supremacy). 34.4.6 Judicial review and proceedings in Parliament: parliamentary privilege (Bill of Rights). Article 9 of the Bill of Rights 1689 (“the freedome of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §69 (neither Art 9 nor any wider parliamentary privilege precluding the Court from considering the validity of the prorogation of Parliament), §66 (“it is for the court and not for Parliament to determine the scope of Parliamentary privilege”), §68 (prorogation “imposed” on Parliament, “not something upon which the Members of Parliament can speak or vote … not the core or essential business of Parliament. Quite the contrary: it brings that core or essential business of Parliament to an end”); R (Gill) v Cabinet Office [2019] EWHC 3407 (Admin) at §95 (Lang J, explaining that judicial review, including a claim for a declaration, “which has the effect of requiring a minister to introduce, or prohibiting a minister from introducing, draft legislation to Parliament, other than on the terms laid down by the court, is an impermissible interference with the proceedings of Parliament”), §101 (“a declaration which prevents Parliament from considering secondary legislation unless it is in a form which the court has previously approved, is clearly an impermissible interference with the proceedings of Parliament”); Foreign and Commonwealth Office v Warsama [2020] EWCA Civ 142 [2020] 3 WLR 351 (claim in the Queen’s Bench Division relating to an inquiry Report, published pursuant to House of Commons Motion), §60 (“content of the Report” has “the protection of Parliamentary privilege”), §70 (“the Report constitutes proceedings in Parliament for the purposes of article 9 of the Bill of Rights. It enjoys the protection of Parliamentary privilege”), §71 (“the conduct of the Inquiry prior to the publication of the Report is not covered by Parliamentary privilege”); R (Shaw) v Secretary of State for Education [2020] EWHC 2216 (Admin) at §§150-153 (challenge to the timing of laying secondary legislation before Parliament non-justiciable, absent a specific statutory obligation); Mohammed v Ministry of Defence [2017] UKSC 1 [2017] AC 649 at §57 (Lord Mance, referring to “the non-justiciability of … proceedings in Parliament”, citing Shergill [2015] AC 359 §42); Khaira v Shergill [2014] UKSC 33 [2015] AC 359 at §42 (discussing “the non-justiciability … of proceedings in Parliament … based on the constitutional limits of the court’s competence as against that of Parliament”, where “once the forbidden area is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself unquestionably justiciable”); R v Chaytor [2010] UKSC 52 [2011] 1 AC 684 at §16 (Court decides scope of parliamentary privilege, paying careful regard to views expressed in Parliament or by relevant authoritative bodies), §47 (Art 9 of the Bill of Rights applicable to the core or essential business of Parliament); Prebble v Television New Zealand Ltd [1995] 1 AC 321, 332D 496

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(“the courts … will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges”); Pickin v British Railways Board [1974] AC 765, 787G (Lord Reid: “The court has no concern with the manner in which Parliament or its officers carrying out its Standing Orders perform these functions”); Bradlaugh v Gossett (1884) 12 QBD 271 (impermissible to challenge the internal proceedings of Parliament); R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 WLR 669 (Parliamentary Commissioner for Standards not amenable to judicial review because concerned with activities of Parliament); R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 (judicial review available in relation to delegated legislation, including as to rationality of underlying factual conclusions, notwithstanding that measure laid before Parliament and debated in both Houses); R (Alvi) v SSHD [2012] UKSC 33 (breach of duty to lay changes in immigration rules before Parliament); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §60 (having regard to Hansard as background and on judicial review of ministerial decisions not “questioning” what said in Parliament); {17.1.13} (Parliamentary privilege). 34.4.7 Judicial review and the Queen in Council. R (Gill) v Cabinet Office [2019] EWHC 3407 (Admin) at §102 (judicial review directed at the contemplated exercise of Her Majesty’s discretion to direct a census), §103 (“would be a clear interference with the Queen in Council’s law-making function, contrary to the constitutional convention of the separation of powers”), §108 (“this is not an exceptional case which justifies any departure from the general rule”); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 (judicial review of Prime Minister’s advice to the sovereign, which led to an Order in Council approved by the sovereign), §70 (declaration that Parliament not prorogued); R (Project Management Institute) v Minister for Cabinet Office [2016] EWCA Civ 21 [2016] 1 WLR 1737 at §38 (judicial review available against committee of the Privy Council in relation to recommendation to Her Majesty the Queen in Council that a Royal Charter be granted). 34.4.8 Reviewability of prerogative power: existence/limits of power always justiciable. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §35 (Lady Hale and Lord Reed: “In the case of prerogative powers, it is necessary to distinguish between two different issues. The first is whether a prerogative power exists, and if it does exist, its extent. The second is whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis. The first of these issues undoubtedly lies within the jurisdiction of the courts and is justiciable”), §36 (“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”), §38 (“every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie”), §52 (“the courts can rule on the extent of prerogative powers. That is what the court will be doing in this case by applying the legal standard which we have described. That standard … is a standard which determines the limits of the power, marking the boundary between the prerogative on the one hand and the operation of the constitutional principles of the sovereignty of Parliament and responsible government on the other hand. An issue which can be resolved by the application of that standard is by definition one which concerns the extent of the power to prorogue, and is therefore justiciable”), §32 (referring to 17th-century authority indicating that “the limits of prerogative powers were set by law and were determined by the courts”). 34.4.9 Judicial restraint/non-justiciability: Lord Roskill’s list. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 418B-C (Lord Roskill: “Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process”), 398F (Lord Fraser); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 (prerogative Orders reviewable including in the context of security and diplomatic 497

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considerations); R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2003] UKHRR 76 at §106(iii) (“the court cannot enter the forbidden areas”); R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697 at §52; R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §35 (“The [issue] whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis … may raise questions of justiciability. The question then is not whether the power exists, or whether a purported exercise of the power was beyond its legal limits, but whether its exercise within its legal limits is challengeable in the courts on the basis of one or more of the recognised grounds of judicial review. … In the Council of Civil Service Unions case, the House of Lords concluded that the answer to that question would depend on the nature and subject matter of the particular prerogative power being exercised”). 34.4.10 Arguable issue of law/HRA violation meaning justiciable. R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §29 (Lord Sumption: “traditional notions of the constitutional distribution of powers have unquestionably been modified by the Human Rights Act 1998. In the first place, any arguable allegation that a person’s Convention rights have been infringed is necessarily justiciable”), §30 (“when it comes to reviewing the compatibility of executive decisions with the Convention, there can be no absolute constitutional bar to any inquiry which is both relevant and necessary to enable the court to adjudicate”); Khaira v Shergill [2014] UKSC 33 [2015] AC 359 at §43 (explaining that most so-called non-justiciable issues “might well be non-justiciable in this sense if the court were asked to decide them in the abstract. But they must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable”, where there is a “domestic foothold”); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §36 (describing “questions of law” as questions which “it is the function of the courts to determine”). 34.4.11 Justiciability: whether there is a ‘manageable standard’. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §52 (limits on prerogative power regarding prorogation of Parliament held to be justiciable, “applying the legal standard which we have described … [which] determines the limits of the power”), §50 (articulating the legal standard: whether having “the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive”); Kuwait Airways Corp v Iraq Airways Co (No 6) [2002] UKHL 19 [2002] 2 AC 883 at §§25-26 (Lord Nicholls, asking whether “manageable standards” exist by which court can judge the issues); R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2003] UKHRR 76 at §25. 34.4.12 Justiciability: whether there is a ‘domestic foothold’. Khaira v Shergill [2014] UKSC 33 [2015] AC 359 at §43 (Lord Neuberger, Lord Sumption and Lord Hodge, explaining that most so-called non-justiciable issues “might well be non-justiciable in this sense if the court were asked to decide them in the abstract. But they must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable”, where there is a “domestic foothold”); R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin) (no domestic foothold); 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”); R (States of Guernsey) v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 1847 (Admin) [2016] 4 WLR 145 at §78; R (Shaw) v Secretary of State for Education [2020] EWHC 2216 (Admin) at §§150-153 (challenge to the timing of laying secondary legislation before Parliament non-justiciable, absent a specific statutory obligation). 34.4.13 Non-justiciability and Crown act of state. Mohammed v Ministry of Defence [2017] UKSC 1 [2017] AC 649 (SC expressing different (obiter) views as to whether doctrine of Crown act of state part of a principle of non-justiciability), §75 (SC agreeing that Crown act of state applicable as a complete defence to tort claim regarding overseas British military 498

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action of detention and handover of prisoners), §36 (Crown act of state applicable only to inherently governmental sovereign acts in the conduct of foreign relations of the Crown), §14 (Crown act of state no answer to claim under the HRA). 34.4.14 Acts of high policy: nature and subject-matter. Mohammed v Ministry of Defence [2017] UKSC 1 [2017] AC 649 at §15 (Lady Hale, referring to “the exercise of executive power” which “might be excluded from the scope of judicial review … because of its subject matter” as involving “certain acts of high policy, which by their very nature are not subject to judicial review”), §56 (Lord Mance, referring to “the nature and subject matter of the particular prerogative power being exercised” which “may make it inappropriate for adjudication before a domestic court”); R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2003] UKHRR 76 at §85 (“the issue of justiciability depends, not on general principle, but on subject matter and suitability in the particular case”), §106(iv). 34.4.15 Defence of the realm/military deployment/war. Mohammed v Ministry of Defence [2017] UKSC 1 [2017] AC 649 at §57 (Lord Mance, referring to “the non-justiciability of the royal prerogative of making war and peace”); Lewis v Attorney-General of Jamaica [2001] 2 AC 50, 77B (“declaring war” may be beyond review); R v Jones [2006] UKHL 16 [2007] 1 AC 136 at §30 (Lord Bingham: “the courts will be very slow to review the exercise of prerogative powers … and the deployment of the armed services … I do not suggest that these rules admit of no exceptions”), §66 (Lord Hoffmann: “It is of course open to the court to say that the act in question falls wholly outside the ambit of the discretionary power”); R (Gentle) v Prime Minister [2008] UKHL 20 [2008] 1 AC 1356 (justiciable issue under the HRA); R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2759 (Admin) [2003] 3 LRC 335 at §47(ii) (“The court will … decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of international relations, national security or defence”); R (Marchiori) v Environment Agency [2002] EWCA Civ 3 [2002] EuLR 225 at §38 (no merits review of defence matters), §§40-41 (different if bad faith or statutory duty of review, eg under the HRA); R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 at §85 (“executive decisions dealing directly with matters of defence, while not immune from judicial review (that would be repugnant to the rule of law), cannot sensibly be scrutinised by the courts on grounds relating to their factual merits”); R v Ministry of Defence, ex p Smith [1996] QB 517 (DC), 539F-G (judicial review of policy prohibiting homosexuals from serving in the military); R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 (judicial review of Ordinance removing island peoples to make way for US military base). 34.4.16 Treaty-making/breaking. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 (successful judicial review of decision to notify a treaty withdrawal, being inconsistent with the nature and intent of primary legislation), at §55 (“Subject to any restrictions imposed by primary legislation, the general rule is that the power to make or unmake treaties is exercisable without legal authority and that the exercise of that power is not reviewable by the courts”); Mohammed v Ministry of Defence [2017] UKSC 1 [2017] AC 649 at §57 (Lord Mance, referring to “the non-justiciability of the royal prerogative of making … treaties”); R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) at §55 (whether decision to ratify a Treaty amenable to judicial review to be approached on a case-by-case basis); Lewis v Attorney-General of Jamaica [2001] 2 AC 50, 77B (“treaty-making” may be beyond review); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 553D (“treaty-making … may not be justiciable”); Ex p Molyneaux [1986] 1 WLR 331, 336A-B (Taylor J: “it is not the function of this court to inquire into the exercise of the prerogative in entering into such an agreement”); R v Secretary of State for Foreign & Commonwealth Affairs, ex p Rees-Mogg [1994] QB 552 (judicial review of decision to proceed to ratify Maastricht Treaty); R v HM Treasury, ex p Smedley [1985] QB 657 (judicial review of draft Order in Council declaring EU budget undertaking an “ancillary” treaty); R v Secretary of State for Foreign & Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892, 920E-G, 937G-H (considering whether Crown still bound by treaties); 499

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New Zealand Maori Council v Attorney-General of New Zealand [1994] 1 AC 466; R v Secretary of State for Foreign and Commonwealth Affairs, ex p British Council of Turkish Cypriot Associations [1998] COD 336 (see transcript) (issue justiciable if engaging a question of domestic UK law). 34.4.17 Foreign policy/foreign relations/foreign affairs. 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 a proposed UN Security Council designation an “exercise of prerogative powers for the conduct of foreign relations. That did not make it immune from judicial review, but it is an area in which the courts proceed with caution”), §26 (“The conduct of foreign policy through the United Nations, and in particular the Security Council, is clearly not amenable to review in the domestic courts so far as it concerns relations between sovereign states”), §27 (but Secretary of State’s decision challengeable, by reference to his reasons); Khaira v Shergill [2014] UKSC 33 [2015] AC 359 at §43 (foreign affairs described as justiciable if engaging a public law issue); Rahmatullah v Secretary of State for Defence [2012] UKSC 48 [2013] 1 AC 614 at §68 (no “intrusion into the area of foreign policy”); R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin) (claim inapt for judicial review where involving condemning foreign state and adjudicating on UK foreign policy, with no domestic foothold or readily identifiable right); R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279 [2008] QB 289 at §148 (foreign relations involving “an especially broad margin of discretion”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p British Council of Turkish Cypriot Associations [1998] COD 336 (whether UK support for Cyprus EU accession “justiciable only if it engages a question of domestic United Kingdom law”; “the powers of the Crown, even in its diplomatic function, may be constrained by statute”); R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2003] UKHRR 76 at §80 (judicial review available of refusal to render diplomatic assistance to British subject suffering violation of fundamental human rights), §106(iii) (reviewable if shown to be “irrational or contrary to legitimate expectation”), §99 (foreign policy non-justiciable but “that does not mean the whole process is immune from judicial scrutiny”), §104 (whether action contrary to stated practice); R (Carson) v Secretary of State for Work and Pensions [2003] EWCA Civ 797 [2003] 3 All ER 577 at §66 (situation where the “judicial taboo of foreign relations is a red herring”; HL is at [2005] UKHL 37 [2006] 1 AC 173). 34.4.18 Prorogation/dissolution of Parliament. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 (judicial review of Prime Minister’s advice to the sovereign to prorogue Parliament) at §52 (“justiciable” because “the courts can rule on the extent of prerogative powers”), §49 (including for conflicting with “constitutional principles”); {34.4.8} (reviewability of prerogative power: existence/limits of power); cf Bobb v Manning [2006] UKPC 22 [2006] 4 LRC 735 (constitutionality of prime minister’s delayed dissolution of Parliament treated as reviewable to see whether any unlawful act). 34.4.19 Religious authorities/matters? Khaira v Shergill [2014] UKSC 33 [2015] AC 359 at §57 (describing R v Chief Rabbi, ex p Wachmann [1992] 1 WLR 1036 as a case where “the Chief Rabbi’s decision that the applicant was not religiously and morally fit to hold office as a rabbi did not raise an issue of public law which was amenable to judicial review”); R (E) v Governing Body of JFS [2009] UKSC 15 [2010] 2 AC 728 (judicial review of Jewish school’s admissions policy as breaching race discrimination duties); Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at §12 (Sedley LJ, explaining that “religious or aesthetic questions” may fall into the class where the dispute “may be unsuitable for adjudication in the courts”); R v Imam of Bury Park Jame Masjid Luton, ex p Sulaiman Ali [1994] COD 142; R v London Beth Din (Court of the Chief Rabbi), ex p Michael Bloom [1998] COD 131; Ex p Williamson The Times 9 March 1994; R v Ecclesiastical Committee of Both Houses of Parliament, ex p Church Society (1994) 6 Admin LR 670, 672A-C; Williamson v Archbishop of Canterbury The Times 25 November 1994; R v Bishop of Stafford, ex p Owen [2001] ACD 83 (Bishop probably judicially reviewable in relation to decision not to extend rector’s term of office); R (Amicus – MSF Section) v Secretary of State for Trade and Industry [2004] 500

P34 Reviewability/non-reviewability

EWHC 860 (Admin) [2004] ELR 311 at §36 (religious views illustrating the background for striking the relevant balance, in considering the legality of employment sex-orientation regulations, but “resolution of the theological dispute raised … would take the court beyond its legitimate role”); R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 [2014] AC 610 (judicial review granted because Registrar General misappreciated “religious worship” in 1855 Act), §32 (Lord Toulson, explaining that: “Religion and English law meet today at various points”). 34.4.20 Statutory ouster clause. {P28} (ouster). 34.4.21 Modified review. {P32} 34.4.22 Judicial review against charitable body: jurisdictional consent precondition. Ex p Scott [1998] 1 WLR 226 (no jurisdiction to entertain judicial review challenge to National Trust’s decision as to management of its property, because challenge constituting “charity proceedings” requiring prior authorisation of the Charity Commissioners or the Chancery Division); R (Heather) v Leonard Cheshire Foundation [2001] EWHC Admin 429 (2001) 4 CCLR 211 (if charity defendant had been public body, judicial review would have been “charity proceedings” needing consent) (consent obtained by time of appeal: [2002] EWCA Civ 366 [2002] 2 All ER 936 at §2); R (Brent LBC) v Fed 2000 [2005] EWHC 2679 (Admin) [2006] ELR 169 at §43 (consent not required here). 34.4.23 Judicial review and issues involving foreign states. Belhaj v Straw [2017] UKSC 3 [2017] AC 964 at §§12-31 and §§181-197 (Lord Mance and Lord Sumption, each discussing common law doctrine of state immunity, based on customary international law: foreign state’s immunity from the jurisdiction of the domestic courts), §118 (Lord Neuberger, summarising common law doctrine of foreign act of state: “the courts of the United Kingdom will not readily adjudicate upon the lawfulness or validity of sovereign acts of foreign states”), §120 (discussing four possible rules), §§156-157 (discussing public policy exception); Khaira v Shergill [2014] UKSC 33 [2015] AC 359 at §42 (discussing “non-justiciability of certain transactions of foreign states”), §43 (“international acts of foreign sovereign states” justiciable if a “domestic foothold”).

34.5 Private law matters. ‘Private law’ functions, and questions solely engaging ‘private law’, are generally considered inappropriate for judicial review. A ‘private law’ function may be a function of a ‘private body’ having no public functions. Or it may be one (private) function of a public authority, alongside that authority’s public functions. In either case, there is unlikely to be immunity from judicial scrutiny. Rather, the scrutiny will be for some ‘private law’ claim. 34.5.1 Contractual/consensual relationship: non-reviewable. R (Underwritten Warranty Co Ltd) v FENSA Ltd [2017] EWHC 2308 (Admin) [2017] ACD 125 at §42 (decision in relation to building industry’s self-certification scheme governed solely by contractual relationship); Swann v Attorney-General of the Turks & Caicos Islands [2009] UKPC 22 at §13 (“complaint amounts to a straightforward private law claim for [unpaid] remuneration”), §14 (claimant “should not have sought to bring his claim by way of judicial review”); R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909, 924C (describing powers which “derive from the agreement of the parties and give rise to private rights”); R v Fernhill Manor School, ex p A [1994] ELR 67, 79D (although “private schools operate within a statutory framework of control … the relationships between the private schools and those who attend them are founded on the contract which is made between the school and those who are paying for the teaching and education of the pupils”); R v Provincial Court of the Church in Wales, ex p Williams [1999] COD 163 (Provincial Court of the Church in Wales not amenable to judicial review because legal authority arising from consensual submission to its jurisdiction); R (Mooyer) v Personal Investment Authority Ombudsman Bureau Ltd [2001] EWHC Admin 247 at §12 (PIA ombudsman not reviewable because consensual, non-statutory jurisdiction); R (Arthurworry) v Haringey LBC [2001] EWHC Admin 698 (disciplinary proceedings not reviewable, but court granting a remedy 501

PARAMETERS OF JUDICIAL REVIEW

by reference to the implied duty of trust and confidence between employer and employee); R v BBC, ex p Lavelle [1983] 1 WLR 23, 31C (BBC disciplinary procedure based on contract); R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864, 882B-C (“private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 838F (referring to “the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction”). 34.5.2 Contractual/consensual relationship: reviewable. R (Faraday Development Ltd) v West Berkshire Council [2018] EWCA Civ 2532 [2019] PTSR 1346 at §62 (council’s decision to enter into development agreement was an agreement to act unlawfully in future, defeating the operation of the statutory scheme); R (Med Chambers Ltd) v Medco Registration Solutions Ltd [2017] EWHC 3258 (Admin) at §10 (company administering PI claim medical report portal amenable to judicial review even though “the relationship between the parties is contractual”); R (M) v Chief Constable of Sussex [2019] EWHC 975 (Admin) [2019] ACD 67 (judicial review of information sharing agreement for compatibility with data protection legislation); R (K) v SSHD [2018] EWHC 2951 (Admin) [2019] 4 WLR 92 at §22 (unlawful purported unilateral variation of contract to fund Salvation Army support to human trafficking victims); R (Shepherd) v NHS Commissioning Board [2018] EWCA Civ 2849 [2019] PTSR 790 (judicial review challenging legality of payment mechanism contained in a draft NHS contract developed and published by NHS England); R (Mavalon Care Ltd) v Pembrokeshire County Council [2011] EWHC 3371 (Admin) (2012) 15 CCLR 229 at §16 (decision to fix fees payable to residential care providers); R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 [2010] 1 WLR 363 (decision to terminate tenancy); R (McIntyre) v Gentoo Group Ltd [2010] EWHC 5 (Admin) at §27 (registered social landlord’s decision withholding consent to an exchange of homes); R (Crouch) v South Birmingham Primary Care Trust [2008] EWHC 605 (Admin) (proposed services agreement clause inconsistent with statutory scheme); R (Kilby) v Basildon District Council [2007] EWCA Civ 479 [2007] HLR 586 (whether power to vary secure tenancy terms); R (Molinaro) v Kensington and Chelsea Royal LBC [2001] EWHC Admin 896 [2002] LGR 336 (refusal under lease to consent to change of user); R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185 at §1 (BBC’s duty not to broadcast offensive material contained in its agreement with the Secretary of State); R (Nurse Prescribers Ltd) v Secretary of State for Health [2004] EWHC 403 (Admin) (changes for prescription services); R (A) v B Council [2007] EWHC 1529 (Admin) [2007] LGR 813 at §29 (decision as to suitability of subcontractor providing school transport for local authority); R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin) at §29 (existence of contractual relationship not inconsistent with judicial review, for example eviction of council tenants); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 850G (Take-over Panel reviewable “whether or not there is a legally binding contract”). 34.5.3 Contractual subject-matter: non-reviewable. Kenson Contractors (Benington) Ltd v Haringay LBC [2019] EWHC 1230 (Admin) at §§43-47 (discussing case law on when judicial review challenge to tendering decision justiciable); R (Broadway Care Centre Ltd) v Caerphilly County Borough Council [2012] EWHC 37 (Admin) (decision to terminate care home’s contract not amenable to judicial review); Swann v Attorney General of the Turks and Caicos Islands [2009] UKPC 22 at §14 (claim for unpaid remuneration a “classic private law claim based on breach of contract” so unsuitable for judicial review); R (Supportways) v Hampshire County Council [2006] EWCA Civ 1035 [2006] LGR 836 (service review obligation purely contractual); R (West) v Lloyds of London [2004] EWCA Civ 506 [2004] 3 All ER 251 at §31 (decisions “concerned solely with the commercial relationship … governed by the contracts into which he had chosen to enter”); R v Coventry City Council, ex p Coventry Heads of Independent Care Establishments (1998) 1 CCLR 379, 386E-387H (matter essentially a contractual dispute, unsuitable for judicial review); R v Association of British Travel Agents, ex p Sunspell Ltd [2001] ACD 88 (contractual relationship between travel agent and ABTA); R v British Standards Institute, ex p Dorgard [2001] ACD 86 502

P34 Reviewability/non-reviewability

(British Standards Institute not reviewable in relation to complaint arising out of an agreement); {34.5.12} (commercial/managerial/operational function: non-reviewable). 34.5.4 Contractual subject-matter: reviewable. School Facility Management Ltd v Governing Body of Christ the King College [2020] EWHC 1118 (Comm) at §§144-147 (discussing case law involving decisions to enter into contracts successfully challenged on judicial review); R (A) v Chief Constable of B [2012] EWHC 2141 (Admin) [2012] ACD 125 at §§34-35 (refusal of security clearance for subcontractor providing vehicle recovery services for the police); R (Bevan & Clarke LLP) v Neath Port Talbot County Borough Council [2012] EWHC 236 (Admin) [2012] ACD 62 at §54 (decision as to rates to be paid under contracts with private sector care home operators amenable to judicial review); R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011 [2010] LGR 1 at §11 (in principle, judicial review available for breach of Public Contract Regulations, where claimant has standing but not a statutory remedy); R (Law Society) v Legal Services Commission [2007] EWCA Civ 1264 [2008] QB 737 (ultra vires provision in civil legal aid contracts); R v Enfield LBC, ex p TF Unwin (Roydon) Ltd (1989) 1 Admin LR 50 (suspension of contractor from local authority’s list); R v Legal Aid Board, ex p Donn & Co (a Firm) [1996] 3 All ER 1 (decision to award contract); R v Hillingdon Health Authority, ex p Goodwin [1984] ICR 800 (hospital closure unlawful for failure to have regard to terms of contract with doctors); R (O’Sullivan) v Secretary of State for Health [2001] EWHC Admin 297 (judicial review turning on whether NHS terms and conditions incorporated into employment contract and binding Secretary of State); {34.5.11} (commercial/managerial/operational function: reviewable). 34.5.5 Monopolistic powers. R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 846A-B (“the panel regulates not only itself, but all others who have no alternative but to come to the market in a case to which the code applies”); R v Chief Rabbi, ex p Wachmann [1992] 1 WLR 1036, 1040H (Simon Brown J: “an Orthodox Rabbi is pursuing a vocation and has no choice but to accept the Chief Rabbi’s disciplinary decisions”), 1041A (“the exclusion from judicial review of those who consensually submit to some subordinate jurisdiction properly applies only to arbitrators or ‘private or domestic tribunals’”); R v London Beth Din (Court of the Chief Rabbi), ex p Michael Bloom [1998] COD 131 (real consensual submission to jurisdiction); R v Insurance Ombudsman, ex p Aegon Life Insurance Ltd [1994] CLC 88, 93D, 94E (voluntary membership of Insurance Ombudsman scheme by insurers, and voluntary submission to his jurisdiction by their aggrieved customers). 34.5.6 Private law subject-matter. R (Holmcroft Properties Ltd) v KPMG LLP [2018] EWCA Civ 2093 (skilled person appointed by regulator to approve misselling compensation offers not amenable to judicial review), §52 (“the nature of the scheme … is essentially for the pursuit of private rights”; scheme “negotiated on private law principles”; “engagement of the Independent Reviewer was contractual”), §53 (requirements “sat alongside a private dispute” and “did not change the character of that dispute, which was fundamentally a private law matter”). 34.5.7 Decisions relating to land: reviewable. R (Adamson) v Kirklees Metropolitan Borough Council [2020] EWCA Civ 154 (whether local authority obliged to obtain ministerial consent before disposing of land used for allotments), §32 (decision “whether … land is no longer required for a particular purpose … would be open to challenge on public law grounds”); R (HCP (Hendon) Ltd) v Chief Land Registrar [2020] EWHC 1278 (Admin) (judicial review of decision to register a lease); R (Granger-Taylor) v High Speed Two (HS2) Ltd [2020] EWHC 1142 (Admin) [2020] ACD 80 at §4 (homeowner seeking judicial review regarding HRA-compatibility of tunnels proposed for HS2); R (Charlesworth) v Crossrail Ltd [2019] EWCA Civ 1118 (compatibility of Crossrail’s disposal of unneeded land with Crichel Down rules); R (Muir) v Wandsworth LBC [2018] EWCA Civ 1035 [2018] PTSR 2121 (decision to grant lease unlawful); R (Norwich Livestock Market Ltd) v Norwich City Council [2018] EWHC 648 (Admin) [2018] ACD 54 (decision to dispose of land without complying with statutory obligations); R (Daniel Johns Manchester Ltd) v Manchester City Council [2018] EWHC 464 (Admin) at §29 (refusal to sell land to a developer judicially reviewable but only on grounds of fraud, corruption, bad faith or improper motive); R (Dean) v Secretary 503

PARAMETERS OF JUDICIAL REVIEW

of State for Business, Energy and Industrial Strategy [2017] EWHC 1998 (Admin) [2017] 4 WLR 158 (judicial review of deed varying a petroleum exploration and development licence); R (Moore) v Secretary of State for Communities and Local Government [2014] EWHC 3592 (Admin) [2015] ACD 44 (decision to consent to appropriation of allotments); R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 [2010] 1 WLR 363 (decision to terminate tenancy); HMB Holdings Ltd v Antigua and Barbuda [2007] UKPC 37 at §31 (decision compulsorily to acquire land); R (Island Farm Development Ltd) v Bridgend County Borough Council [2006] EWHC 2189 (Admin) [2007] LGR 60 (decision not to proceed with sale of land); R (Ise Lodge Amenity Committee (A Class Action)) v Kettering Borough Council [2002] EWHC 1132 (Admin) at §65 (resolution to sell land); R (Lemon Land Ltd) v London Borough of Hackney [2001] EWHC 336 (Admin) [2001] LGR 555 (decision to sell land unlawful, for failure to obtain best consideration reasonably obtainable); R (Structadene Ltd) v Hackney LBC [2001] 2 All ER 225 (decision to dispose of land breaching statutory duty to obtain best price, also breach of fiduciary duty and unreasonable; contract declared invalid); R (Molinaro) v Kensington and Chelsea Royal LBC [2001] EWHC 896 (Admin) [2002] LGR 336 (local authority decision under a lease, not to consent to a change of user); R v Secretary of State for the Environment, Transport and the Regions, ex p Wheeler [2000] 3 PLR 98 (decision to offer land to local authority); R v Pembrokeshire County Council, ex p Coker [1999] 4 All ER 1007 (decision to lease land); R v London Borough of Camden, ex p Hughes [1994] COD 253 (decision not to enter contract to sell land); R v Barnet LBC, ex p Pardes House School Ltd [1989] COD 512 (decision to sell land vitiated by failure to consider own policy); Wheeler v Leicester City Council [1985] AC 1054 (ban on rugby club using council land); {32.3.18} (decision to seek possession). 34.5.8 Decisions relating to land: non-reviewable. R v Bolsover District Council, ex p Pepper [2001] LGR 43 (local authority’s statutory function of selling land not reviewable unless public law element introduced); R v Leeds City Council, ex p Cobleigh [1997] COD 69 (local authority’s refusal to sell land not reviewable absent a statutory underpinning); R (Hopley) v Liverpool Health Authority [2002] EWHC 1723 (Admin) at §53 (applying Pepper). 34.5.9 Decisions relating to employment: reviewable. Jamaicans for Justice v Police Service Commission [2019] UKPC 12 (decision to accept recommendation for promotion of police officer); R (Weed) v Commissioner of Police for the Metropolis [2020] EWHC 287 (Admin) (discretionary sick pay); R (Fire Brigade Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (Admin) [2018] 3 CMLR 27 (fire authority’s new shift pattern successfully judicially reviewed for incompatibility with Working Time Regulations); R (Birks) v Commissioner of Police of the Metropolis [2018] EWHC 807 (Admin) [2018] ICR 1400 (successful judicial review of decision to maintain suspension and not permit resignation from the police); Civil Nuclear Police Federation v Civil Nuclear Police Authority [2016] EWHC 2186 (Admin) [2016] ACD 112 (question of law relating to police pension arrangements); Doogan v Greater Glasgow and Clyde Health Board [2014] UKSC 68 [2015] AC 640 at §§19-20 (question of statutory interpretation regarding abortion conscientious objection rights, dealt with in judicial review proceedings arising out of grievance procedures), §24 (reasonable adjustments issues better suited to employment tribunal); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §91 (dismissal of an office-holder, of a “position created, required and defined by and under statute”); R (Public and Commercial Services Union) v Minister for the Civil Service [2010] EWHC 1027 (Admin) [2010] ICR 1198 (lawfulness of amendments to civil service pensions scheme); R (Reckless) v Kent Police Authority [2010] EWCA Civ 1277 (appointment to police authority); R (Kay) v Chief Constable of Northumbria [2010] EWHC 31 (Admin) [2010] ICR 974 at §51 (mandatory order directing chief constable to reinstate probationary police constable where wrong procedure had been invoked); Gokool v Permanent Secretary for the Ministry of Health and Quality of Life [2008] UKPC 54 at §2 (termination of appointments of healthcare assistants); R (Prospect) v Ministry of Defence [2008] EWHC 2056 (Admin) (lawfulness of Early Release Scheme offering early retirement); R (Hodgson) v South Wales Police Authority [2008] EWHC 1183 (Admin) (decision requiring police officer to retire); McLaughlin v Governor of the Cayman Islands [2007] UKPC 50 [2007] 1 WLR 2839 (dismissal of public office-holder); 504

P34 Reviewability/non-reviewability

R (Dunbar) v Hampshire Fire and Rescue Service [2004] EWHC 431 (Admin) (refusal, contrary to the statutory scheme, to reinstate firefighters following successful disciplinary appeal); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (dismissal of policeman); R v Salford Health Authority, ex p Janaway [1989] AC 537 (dismissal of receptionist); Champion v Chief Constable of the Gwent Constabulary [1990] 1 WLR 1 (refusal of permission to would-be policeman governor); R v Hillingdon Health Authority, ex p Goodwin [1984] ICR 800 (hospital closure, with failure to have regard to terms of contracts with doctors); R v SSHD, ex p Benwell [1985] QB 554 (dismissal of prison officer); R v SSHD, ex p Broom [1986] QB 198 (judicial review of decision to dismiss prison governor); R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1 (EU-incompatible legislative qualifying conditions for unfair dismissal and redundancy entitlements); R v Secretary of State for Education, ex p Prior [1994] ELR 231 (teacher obtaining judicial review of Secretary of State’s refusal to intervene as to a grant-maintained school governors’ decision to dismiss him); Jhagroo v Teaching Service Commission [2002] UKPC 63 (PC granting declaration as to employment status; refusing in the circumstances to order that still employed as a public office holder)); R (Verner) v Derby City Council [2003] EWHC 2708 (Admin) [2004] LGR 786 (whether teachers’ acceptance of ill-health retirement benefit constituting resignation). 34.5.10 Decisions relating to employment: non-reviewable. R v BBC, ex p Lavelle [1983] 1 WLR 23, 30C (Woolf J: “An application for judicial review has not and should not be extended to a pure employment situation”); McClaren v Home Office [1990] ICR 824, 836B-838B; Wandsworth LBC v A [2000] 1 WLR 1246, 1252G-H (“in the case of employment by a public body, that legal status of the employer does not per se inject any element of public law”); R (Evans) v University of Cambridge [2002] EWHC 1382 (Admin) [2003] ELR 8 (despite University’s public functions and statutory underpinning, claimant lecturer’s remedies for employment matters statutory or contractual), §23 (“essentially an employment or contractual dispute”); R v East Berkshire Health Authority, ex p Walsh [1985] QB 152 (decision to dismiss nursing officer not reviewable); R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1, 25C-E (individual employee’s claim a matter for the employment tribunal); R v SSHD, ex p Moore [1994] COD 67 (confirmation of the decision to dismiss a prison officer); R v Trent Regional Health Authority, ex p Jones The Times 19 June 1986 (decision refusing to appoint a consultant surgeon); R v Derbyshire County Council, ex p Noble [1990] ICR 808 (council dismissal of deputy police surgeon); R v Lord Chancellor’s Department, ex p Nangle [1992] 1 All ER 897 (disciplinary decisions affecting civil servant working for Lord Chancellor’s Department); R v CPS, ex p Hogg (1994) 6 Admin LR 778 (dismissal of barrister employed by the CPS); 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); R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 2 at §35 (“clear line between disciplinary issues where an officer has the right to public law safeguards such as fairness, and operational or management decisions where the police are entitled to run their own affairs without the intervention of the courts”); Manning v Ramjohn [2011] UKPC 20 at §34 (doubting Tucker). 34.5.11 Commercial/managerial/operational function: reviewable. State of Mauritius v CT Power Ltd [2019] UKPC 27 at §§42-44 (Minister amenable to judicial review (i) in deciding whether project satisfying condition of licence, (ii) in deciding whether to sign implementation agreement, (iii) in deciding whether or how to exercise rights sounding in private law conferred by a contract); R (Woods) v Chief Constable of Merseyside [2014] EWHC 2784 (Admin) [2015] 1 WLR 539 (police statutory misconduct regime); R (Simpson) v Chief Constable of Greater Manchester Police [2013] EWHC 1858 (Admin) [2014] ACD 20 (decision to dissolve pool of police promotion candidates); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 635F-H (Lord Wilberforce, referring to judicial review of Revenue’s “management powers”), 636G-H (Lord Diplock: “wide managerial discretion”); Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521 (judicial review of a decision to (enter into or) 505

PARAMETERS OF JUDICIAL REVIEW

terminate a commercial contract); R v Cleveland County Council, ex p Cleveland Care Homes Association (1993) 17 BMLR 122 (decision to negotiate with reference to standard contract terms); R v Legal Aid Board, ex p Donn & Co (a Firm) [1996] 3 All ER 1, 8j-11j (decision to award multi-party legal aid contract); R v Birmingham City Council, ex p Dredger (1994) 6 Admin LR 553 (calculation of market stall charges); R v Norfolk County Council, ex p M [1989] QB 619, 627G-628D (child abuse register amenable to judicial review); R v Cumbria County Council, ex p Cumbria Professional Care Ltd (2000) 3 CCLR 79 (decision not to enter block contracts); {34.5.7} (decisions relating to land: reviewable). 34.5.12 Commercial/managerial/operational function: non-reviewable. R v Comptroller of Patents, Designs and Trade Marks, ex p Lenzing AG [1997] EuLR 237 (non-reviewability of Comptroller’s administrative function of recording in register (non-reviewable) decision of European Patent Office Board of Appeal); R (Hopley) v Liverpool Health Authority [2002] EWHC 1723 (Admin) (decision declining to agree to meet damages judgment by means of structured settlement not reviewable), §54 (“commercial”-type decisions only reviewable “if there is an additional public element introduced to the process”); R (Arbab) v SSHD [2002] EWHC 1249 (Admin) [2002] Imm AR 536 at §45 (“the court will not generally involve itself in questions concerning the management of a government department or similar body”); R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 2 at §32 (“entirely operational decision” treated as not reviewable, but doubted in Manning v Ramjohn [2011] UKPC 20 at §34); {34.5.8} (decisions relating to land: non-reviewable).

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P35 Principle of legality. Public authority power cannot be used to abrogate fundamental common law values, at least unless that is required or empowered by clear primary legislation. 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)

35.1 POL: non-abrogation of protected values (the principle).84 The principle of legality (POL) is an important doctrine in public law. It involves a principle, a premise and a proviso. The principle is that public authorities should not act so as to override (ie abrogate) a protected fundamental common law value. Those values include fundamental rights, protected by the POL by invoking, in substance, proportionality standards. The POL played this role before Parliament introduced the HRA, the enactment of which does not displace the POL’s protective force and potential. Like HRA s.3, the POL operates as an interpretative principle (an ‘internal inhibition’ for statutory power), construing statutory functions as not effecting or empowering the abrogation of protected values. Where there is a statutory power the analysis is: the statutory power has been used to abrogate a protected value, which abrogation is not authorised by the statute. An equivalent protective approach – whether it is the POL or its twin – can operate more like HRA s.6 (an ‘external prohibition’ for all public authority power), to constrain non-statutory public functions. The broader analysis is: public authority power has been used to abrogate a protected value, which abrogation is not authorised by statute. In all cases, where there is an abrogation of a protected value through relevant power, this ultimate question arises: is there statutory authority for the abrogation? 35.1.1 POL recognised: Lord Steyn in Pierson. R v SSHD, ex p Pierson [1998] AC 539, 587H-589E (Lord Steyn: “it is to Sir Rupert Cross that I turn for the best modern explanation of … what has been called the principle of legality …: ‘… presumptions of general application … operate … as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the executive and the courts … as constitutional principles which are not easily displaced by a statutory text’. This explanation is the intellectual justification of the often quoted proposition … that ‘although there are no positive words in a statute requiring that a party shall be heard, yet the justice of the common law will supply the omission’. … [T]he principle of legality [has] served to protect procedural safeguards provided by the common law. But the principle applies with equal force to protect substantive basic or fundamental rights”, citing Raymond v Honey [1983] 1 AC 1, R v SSHD, ex p Anderson [1984] QB 778 and R v SSHD, ex p Leech [1994] QB 198); also R v Lord Chancellor, ex p Witham [1998] QB 575. 35.1.2 POL is a principle of constitutionality. R v SSHD, ex p Simms [2000] 2 AC 115, 131E-G (Lord Hoffmann, explaining that the POL means that “the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality”, which moreover are “little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document”); A v SSHD [2004] EWCA Civ 1123 [2005] 1 WLR 414 (CA) at §§233-234 (Laws LJ, speaking of the POL as protecting

84The

equivalent paragraph in a previous edition was relied on in R (Youssef) v SSFA [2013] EWCA 1302 [2014] QB 728 at §24 (Laws LJ).

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“constitutional rights” and “constitutional fundamentals”); cf R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549 at §17 (where Act conferring authority on the Crown to alter constitutions, POL not operating, because no “constitutional order” of “fundamental rights” which can be “read across”); {7.6} (constitutional/common law rights); {P60} (constitutionality); {60.1.1} (the Courts’ responsibility to make constitutional principles and values effective); {60.1.2} (judicial review of statutory power based on effect on constitutional principle/value); {60.1.3} (judicial review of prerogative power based on effect on constitutional principle/value); {60.1.7} (the principle of legality articulated in terms of constitutional principle); {60.1.12} (judicial review because action abrogated a constitutional right/value: illustrations). 35.1.3 POL: fundamental rights/values/principles not overridden/abrogated. AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §152 (Lord Reed, explaining that: “The principle of legality means … that Parliament cannot itself override fundamental rights or the rule of law in general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so”); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 (Orders ultra vires the enabling Act, there being a curtailment of individual rights, not expressly authorised or mandated by any statute) at §§47, 61, 75, 81 (Lord Hope), §§174, 185 (Lord Rodger), §249 (Lord Mance); 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 legal rights of the citizen or 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. 35.1.4 POL means statute does not (a) effect or (b) empower the abrogation. AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §152 (Lord Reed, explaining that: “The principle of legality means … that Parliament cannot itself override fundamental rights or the rule of law in general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so”); R v Governor of Frankland Prison, ex p Russell [2000] 1 WLR 2027 at §11 (Lightman J, describing the POL as ensuring that “even the most general words in an Act of Parliament and in subordinate legislation must be presumed to be intended to be subject to the basic rights of the individual”, and meaning that as to the “extent to which a power is impliedly conferred by statute to interfere with fundamental rights, there must be established a self-evident and pressing need for that power and the interference must be the minimum necessary to fulfil that need”). 35.1.5 POL: narrow, necessity-based scope of power which intrudes on constitutional right. {35.4.3} 35.1.6 Proportionality and legal rights: the POL is in substance proportionality. Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §113 (Lord Reed, speaking of “proportionality as a basis for scrutinising justifications put forward for interferences with legal rights”), §118 (“In a number of cases concerned with important rights, such as the right of access to justice and legal professional privilege, the court has interpreted statutory powers to interfere with those rights as being subject to implied limitations, and has adopted an approach amounting in substance to a requirement of proportionality, although less formally structured than under the Human Rights Act”), §119 (“One can infer from these cases that, where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality”). 35.1.7 POL as human rights (common law proportionality) protection. R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §88 (Lord Reed, explaining that under the POL, “the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve”), §89 (“There is an analogy between [that] principle and the 508

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principle of proportionality, as developed in the case law of the European Court of Human Rights … the view, already arrived at by the common law, [is] that … an interference … will be unlawful unless it can be justified as reasonably necessary to meet a legitimate objective”); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §190 (POL meaning “it is incumbent on the executive to justify [the infringement] by a pressing social need and as being the minimum necessary to achieve the objectives sought”), §§197-198 (whether “the rule goes too far, because it imposes a prohibition which is not the minimum necessary to protect [fundamental] rights”); R v SSHD, ex p Simms [2000] 2 AC 115, 131E-G (Lord Hoffmann: “Fundamental rights cannot be overridden by general or ambiguous words. … In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document”); A v SSHD [2004] EWCA Civ 1123 [2005] 1 WLR 414 (CA) at §§233-234 (Laws LJ: “The principle [of legality] is in essence that of proportionality, which the common law has made its own. It is that the courts will expect the legislature to interfere with fundamental constitutional rights to the minimum extent necessary to fulfil the State’s duty to safeguard its citizens and its own integrity. If it is perceived that that is not done, the courts will tend to confine and restrict the legislation’s interference with constitutional rights, so far as they may do so consistently with Parliament’s ultimate legislative supremacy”) (HL is [2005] UKHL 71 [2006] 2 AC 221); {58.3.13} (common law proportionality: protecting basic (constitutional) rights). 35.1.8 POL as a principle of statutory interpretation. R (Miller) v College of Policing [2020] EWHC 225 (Admin) at §§164-169 (POL a principle “of statutory construction” having “no application in relation to common law powers”); R (Leighton) v Lord Chancellor [2020] EWHC 336 (Admin) [2020] ACD 50 at §§148-149 (common law human rights an aid to statutory interpretation via the POL); J v Welsh Ministers [2018] UKSC 66 [2019] 2 WLR 82 at §24 (Lady Hale: “It is a fundamental principle of statutory construction that a power contained in general words is not to be construed so as to interfere with fundamental rights”); R (London Christian Radio Ltd) v Radio Advertising Clearance Centre [2013] EWCA Civ 1495 [2014] 1 WLR 307 at §23, applying AKJ v Metropolitan Police Commissioner [2013] EWCA Civ 1342 [2014] 1 WLR 285 at §28 (“The principle of legality is an important tool of statutory interpretation. But it is no more than that”); R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2002] UKHL 21 [2003] 1 AC 563 at §44 (Lord Hobhouse, describing the principle of legality as a “principle of statutory construction”); R v SSHD, ex p Stafford [1999] 2 AC 38, 48C-D (“the principle of construction which requires the court, in certain cases, to construe general words in a statute as impliedly limited”); B (A Minor) v DPP [2000] 2 AC 428, 470G (Lord Steyn: “in the absence of express words or a truly necessary implication, Parliament must be presumed to legislate on the assumption that the principle of legality will supplement the text”); 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 legal rights of the citizen or 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”); {29.3.15} (penal provision construed narrowly). 35.1.9 POL and HRA s.3 compared. {35.4.2} 35.1.10 POL (or its twin) applicable to non-statutory public powers: beyond statutory interpretation. R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 [2013] QB 618 (POL and Court’s approach to application for access to documents used in proceedings, equally applicable to a court not underpinned by statute), §73 (POL applicable to “the way in which the court decides such a question”, whether or not the court’s function is “affected by an Act of Parliament”), endorsed in

509

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Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629 at §36 (Lady Hale: “The requirements of open justice applied to all tribunals exercising the judicial power of the state. The fact that magistrates courts were created by statute was neither here nor there”), §41 (“The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state”); Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 (closed material procedure not available to High Court, absent statutory authority), §72 (Lord Hope: “a court of unlimited jurisdiction is the master of its own procedure. But that does not mean that the court can do what it likes. Everything that it does must have regard to the fundamental principles of open justice and of fairness. The principle of legality demands nothing less than that”); A v SSHD [2005] UKHL 71 [2006] 2 AC 221 (identifying prohibition on torture-induced evidence, as generally applicable, including to inferior courts not having any statutory power or underpinning) at §96 (provision for use of torture “would have to be expressly provided in primary legislation”), §114 (“Nothing short of an express provision will do, to which Parliament has unequivocally committed itself”); {35.5} (POL: international law (human rights) obligations); cf {60.1.3} (judicial review of prerogative power based on effect on constitutional principle/value); {60.1.8} (prerogative/common law power is limited by constitutional principles). 35.1.11 POL: addresses whether statutory authority for infringement of a fundamental right. R (W) v Secretary of State for Health [2015] EWCA Civ 1034 [2016] 1 WLR 698 at §55 (Lord Dyson MR, Briggs and Bean LJJ: “[The POL] only applies where the question is whether there is statutory authority for the infringement or breach of a fundamental right”); R v SSHD, ex p Saleem [2001] 1 WLR 443 at 449E (Roch LJ, explaining that in the case of a “fundamental or basic right … there is this consequence, that infringement of such a right must be either expressly authorised by Act of Parliament or arise by necessary implication from an Act of Parliament”).

35.2 POL: protected values (the premise). The principle of legality (POL) operates with a principle, a premise and a proviso. The premise – the trigger for the application of the principle of non-abrogation – is that a recognisable protected common law value is engaged and is under threat of being overridden (abrogated). Obvious examples are recognised human rights. But there are many other protected fundamental common law values. Some have already been recognised as engaging the POL. Others are candidates for being found to do so too. 35.2.1 Constitutional fundamentals. {P7} 35.2.2 Fundamental common law/constitutional rights. {7.6} (constitutional/common law rights). 35.2.3 POL and fundamental rights beyond the HRA:ECHR. R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §27 (Lord Steyn, explaining that the POL, as recognised in Simms, extends beyond the ECHR: “the [ECHR] 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. It is engaged in the present case”), endorsed in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §150 (Lord Reed); {7.1.13} (common law rights going further than ECHR); 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”). 35.2.4 POL: rule of law and exclusion of judicial review. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§99-100 (principle that “nothing less than the clearest wording will suffice” to exclude judicial review “can be seen as an application of the ‘principle of legality’”), §165; {1.3} (judicial review’s constitutional inalienability). 510

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35.2.5 POL and basic tenets of the common law. R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2002] UKHL 21 [2003] 1 AC 563 at §44 (Lord Hobhouse, describing the POL as a “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”, referring to Viscount Rhondda’s Claim [1922] 2 AC 339 and B (A Minor) v DPP [2000] 2 AC 428); Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 (closed material procedure not available absent statutory authority because inconsistent with ‘fundamental common law principles’). 35.2.6 POL and the ordinary common law. R (Ingenious Media Holdings plc) v HMRC [2016] UKSC 54 [2016] 1 WLR 4164 at §17 (applying the common law of confidentiality), §28 (“the ordinary application of the common law”), §19 (invoking the POL to guard against “HMRC’s duty of confidentiality [having] been very significantly eroded by [statutory] words of the utmost vagueness”). 35.2.7 POL and basic common law fairness/natural justice/impartiality. {7.7} (basic fairness/natural justice); {1.2.16} (the rule of law and basic fairness/due process); Arkin v Marshall [2020] EWCA Civ 620 [2020] 1 WLR 3284 at §31, applying Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at §22 (“the court cannot exercise its power to regulate its own procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice”) and at §72 (“Everything [a court] does must have regard to the fundamental principles of open justice and of fairness. The principle of legality demands nothing less than that”); R v SSHD, ex p Q [2000] UKHRR 386, 398F-399F (applying Witham in the context of discretionary decisions as to whether to move a prisoner, because threatening the right to a fair trial); JT (Cameroon) v SSHD [2008] EWCA Civ 878 [2009] 1 WLR 1411 (construing the credibility-impact provisions of asylum legislation compatibly with constitutional principles of judicial impartiality); R (Bright) v Central Criminal Court [2001] 1 WLR 662, 697A-B (whether statute authorising interference with privilege against self-incrimination); 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 (whether statute displacing presumption against double taxation). 35.2.8 POL and procedural fairness ‘supplementing the legislative scheme’. {61.3} (procedural fairness: supplementing the legislative scheme); R v SSHD, ex p Pierson [1998] AC 539, 588G-589B (Lord Steyn, explaining the cases where natural justice ‘supplements’ the legislative scheme as part of the broader “principle of legality”); R (McNally) v Secretary of State for Education [2001] EWCA Civ 332 [2001] ELR 773 at §39 (invoking the POL to ensure wide statutory duties read as consistent with natural justice). 35.2.9 POL and basic common law reasonableness. {7.8} (basic reasonableness); 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, such as overriding fundamental human rights, as not having been intended to do so. … [T]he wider principle itself [ie beyond human rights] is hardly new. It 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”); 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). 35.2.10 POL: measure violating access to justice.85 {7.5} (access to justice); R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §98 (Fees Order “effectively prevents access to justice, and is therefore unlawful”); R v Lord Chancellor, ex p Witham 85The

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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[1998] QB 575 (court Fees Order ultra vires insofar as interfering with constitutional right of access to the Courts); Raymond v Honey [1983] 1 AC 1 (prison rules and standing orders ultra vires the Prison Act, insofar as fettering prisoner’s right to communicate by letter with solicitor and the court); R v SSHD, ex p Anderson [1984] QB 778 (standing orders ultra vires since preventing access to legal advice in context of internal complaint); R v SSHD, ex p Leech [1994] QB 198 (prison rule enabling governor to read legal correspondence ultra vires given incompatibility with right of access to the Court); R v SSHD, ex p Saleem [2001] 1 WLR 443 (immigration rule ultra vires because enabling Act not to be construed as impliedly authorising a rule interfering with fundamental right of access to immigration tribunals); R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 (blanket policy of searching prisoners’ legal correspondence in their absence ultra vires by reference to the common law principle of legality). 35.2.11 POL: the open justice principle. {7.1.11} (constitutional principle: the open justice principle); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §169, 197-198 (POL applicable by reference to the open justice principle, meaning rule ultra vires); R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 [2013] QB 618 at §69 (Toulson LJ: “The open justice principle is a constitutional principle to be found not in a written text but in the common law”), §73 (“although the sovereignty of Parliament means that the responsibility of the courts for determining the scope of the open justice principle may be affected by an Act of Parliament, Parliament should not be taken to have legislated so as to limit or control the way in which the court decides such a question unless the language of the statute makes it plain beyond doubt that this was Parliament’s intention”), endorsed in Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629; Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at §§10-11 (“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”); R (SSHD) v Inner West London Assistant Deputy Coroner [2010] EWHC 3098 (Admin) [2011] 1 WLR 2564 (coroner having no power to exclude properly interested persons), §23 (“the legislature would not have created a procedure with such exceptional consequences in the absence of clear language to that effect”), §37 (need for “specific and clear words”). 35.2.12 POL: liberty. M v Secretary of State for Justice [2018] UKSC 60 [2019] AC 712 at §31 (POL applicable so that general Mental Health Act 1983 statutory powers of “discharge” not empowering conditions constituting a deprivation of liberty); R (B (Algeria)) v Special Immigration Appeals Commission [2018] UKSC 5 [2018] AC 418 at §29 (Lord Lloyd-Jones: “Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear”; including “conditions … attached to a grant of bail … capable of severely curtailing the liberty of the person”; “the principle of legality is in play” and so “we are required to interpret the statutory provisions strictly and restrictively”); 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. … A person cannot have his right to liberty taken away unless that is the clear effect of a statute”); Naidike v Attorney-General of Trinidad and Tobago [2004] UKPC 49 [2005] 1 AC 538 at §48 (need clear words to interfere with liberty); {7.6.6} (right to personal liberty/habeas corpus at common law). 35.2.13 POL: legal professional privilege. R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2002] UKHL 21 [2003] 1 AC 563 (Revenue notice requiring the bank to disclose Counsel’s instructions and advice ultra vires, given violation of fundamental human right of legal professional privilege) at §§8, 44; General Mediterranean Holdings SA v Patel [2000] 1 WLR 272 (general words delegating a power to legislate not sufficient to encroach fundamental right of legal professional privilege); {7.6.11} (legal professional privilege/ litigation privilege at common law). 35.2.14 POL: transparency. R (Limbu) v SSHD [2008] EWHC 2261 (Admin) [2008] HRLR 1219 at §65 (Blake J: “Transparency, clarity, and the avoidance of results that are 512

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contrary to common sense or are arbitrary are aspects of the principle of legality to be applied by the courts in judicial review”); R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §27 (POL used to support duty to notify citizen of decision before it can adversely affect citizen’s rights), an approach applied in R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §§35-36 (duty to publish detention policy {6.2.3}); {7.1.11} (constitutional principle: the open justice principle); {35.2.11} (POL: the open justice principle); {1.2.15} (rule of law and certainty/transparency). 35.2.15 POL: protecting the public interest. Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15 [2011] 2 AC 304 (SC, implying into the statutory planning framework a “public policy” exclusion), §46 (principle of statutory interpretation that law should serve the public interest), §54 (Lord Mance, describing “conduct [which] will on public policy grounds disentitle a person from relying on an apparently unqualified statutory provision”), §69 (Lord Brown, discussing why “appropriate to import into this apparently self-contained legislative planning scheme the principle of public policy that no one should be allowed to profit from his own wrong”). 35.2.16 POL: freedom of expression. R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin) [2013] PTSR 378 at §41 (Beatson J: “The status of freedom of expression at common law …, although at one stage characterised as a residuary right, has been enhanced by developments of the common law under the influence of rights in international human rights treaties ratified by the United Kingdom, and in particular, even before the Human Rights Act 1998, the European Convention: see Derbyshire CC v Times Newspapers Ltd [1993] AC 554 and R v SSHD, ex p Simms [2000] 2 AC 115 at 126. The result was that a narrower construction was given to legislative instruments restricting the right, and, albeit subject to Parliamentary sovereignty, clear words were required to achieve a restriction. … This is similar to the position under the Convention”), §42 (“One of the consequences of giving … constitutional status to freedom of expression is that clear words are required to restrict it”); R v SSHD, ex p Simms [2000] 2 AC 115, 130C (insofar as standing orders to be construed as permitting restriction with freedom of expression, ultra vires under the principle in Leech because no pressing social need); {7.6.17} (freedom of expression/freedom of speech at common law). 35.2.17 POL: basic humanity/freedom from destitution. R (W) v SSHD [2020] EWHC 1299 (Admin) at §§34-36 (principle of legality applicable to “the law of humanity, which is anterior to all positive laws”, which obliges relief to prevent starving), §61 (common law achieving the same protection as Art 3); R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 (asylum benefit-removing regulations ultra vires as incompatible with basic humanity), 292F-G (human rights at issue so basic that unnecessary to resort to the ECHR; applying “the law of humanity”); {7.6.3} (right of humanity/dignity/ freedom from destitution at common law). 35.2.18 POL: torture/torture-obtained evidence. A v SSHD [2005] UKHL 71 [2006] 2 AC 221 (identifying prohibition on torture-induced evidence) at §96 (provision for use of torture “would have to be expressly provided in primary legislation”), §114 (“Nothing short of an express provision will do, to which Parliament has unequivocally committed itself”); {7.6.4} (protection against torture at common law); {7.6.5} (protection against torture-obtained evidence at common law). 35.2.19 POL: ‘fundamental change in the law’. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 (invoking Simms and the POL in relation to Brexit through prerogative power and without statutory authority): at §50 (“it would have been open to Parliament to provide expressly that the constitutional arrangements and the EU rights introduced by the [European Communities Act] 1972 … should … only prevail … for so long as the UK government did not decide otherwise”; had the 1972 Act “spelled out” and “squarely confront[ed]” the position), §108 (“The fact that a statute says nothing about a particular topic can rarely, if ever, justify inferring a fundamental change in the law”). 513

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35.2.20 POL: no taxation without plain statutory words. R (Orbital Shopping Park Swindon Ltd) v Swindon Borough Council [2016] EWHC 448 (Admin) [2016] PTSR 736 at §69 (Patterson J, referring to “constitutional principles” under which citizens “cannot be taxed unless … designated in clear terms by a taxing Act as a taxpayer”), citing Vestey v Inland Revenue Commissioners [1980] AC 1148, 1172; R (Attfield) v Barnet LBC [2013] EWHC 2089 (Admin) [2013] PTSR 1559 at §§41, 64. 35.2.21 POL: Henry VIII clauses. R (Ingenious Media Holdings plc) v HMRC [2016] UKSC 54 [2016] 1 WLR 4164 at §21 (Lord Toulson, explaining that a “similar principle” to the POL is “seen in the courts’ approach to the interpretation of powers delegated under a so-called Henry VII clause”), citing R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 at §26 (“the more general the words used by parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation”). 35.2.22 Other constitutional rights/fundamentals. {P7} (constitutional fundamentals).

35.3 POL: international law (human rights) obligations. A recognisable question in public law concerns compatibility of the actions of the state’s public authorities with its international law obligations, especially when they concern human rights. Any solution must allow for Parliament’s legislative supremacy. Legitimate expectation (a doctrine which makes such an allowance) was for a short time seen as a solution, then dropped. In thinking about the POL in this context, several points can be made. (1) Protected values which engage the POL can include international law obligations, as seen when the POL in substance protected pre-HRA ECHR rights. (2) International law obligations inform the content of the common law, and an established principle of statutory interpretation presumes compatibility with international law obligations. But this would not be ‘direct effect’: the POL’s proviso allows for statutorily endorsed/empowered abrogation. (3) The POL may also provide a way of looking analytically at the way in which customary international law (CIL) obligations are received into the common law. 35.3.1 International law compatibility is a feature of the rule of law. {6.3.1} 35.3.2 International law obligations: the legitimate expectation solution. {41.1.17} (legitimate expectation: an attempted route to justiciable international law obligations); {54.2.6} (substantive legitimate expectation: proportionality test (justifying the impact on the legitimate expectations)); {40.2.3} (legitimate expectation: conflict with statute/circumscribed by the law). 35.3.3 POL: applicable to ECHR rights independently of the HRA. {35.3.7} (ECHR rights as international law rights informing the common law). 35.3.4 POL and international law obligations. R (Yam) v Central Criminal Court [2015] UKSC 76 [2016] AC 771 at §36 (Lord Mance: “the principle of legality … refers to rights and obligations recognized at a domestic level” and does not “limit the domestic [authority’s] general discretion by reference to unincorporated international obligations or … require parliamentary authorisation before [an authority] can consider whether it should in particular circumstances exercise such a discretion which will or may prove inconsistent with such obligations”); R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin) [2013] PTSR 378 at §41 (Beatson J, explaining, in the context of the POL, that: “The status of freedom of expression at common law … has been enhanced by developments of the common law under the influence of rights in international human rights treaties ratified by the United Kingdom, and in particular, even before the Human Rights Act 1998, the European Convention”). 35.3.5 Interpretative principle of international law compatibility. {6.3.8} (international law: general presumption of domestic legislative compatibility). 514

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35.3.6 International law: informing the common law. 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”); 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, such development should ordinarily be in harmony with the United Kingdom’s international obligations and not antithetical to them”); {6.3.9} international law: guiding development of the common law). 35.3.7 ECHR rights as international law rights informing the common law. Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §46 (Lord Mance: “the common law may … in some contexts … be inspired by the Convention rights and jurisprudence”); DPP v Jones [1999] 2 AC 240, 259B (ECHR applied where common law uncertain and developing); R v SSHD, ex p McQuillan [1995] 4 All ER 400, 422f-j (ECHR standards “march with those of the common law”); R v SSHD, ex p Simms [2000] 2 AC 115, 131H-132A (Lord Hoffmann: “much of the Convention reflects the common law: see Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 551. That is why the United Kingdom government felt able in 1950 to accede to the Convention without domestic legislative change. So the adoption of the text as part of domestic law [by the Human Rights Act 1998] is unlikely to involve radical change in our notions of fundamental human rights”). 35.3.8 International law: relevant to an exercise of the Court’s functions. {6.3.21} 35.3.9 International law and statutory abrogation: clear words. R v Asfaw [2008] UKHL 31 [2008] 1 AC 1061 at §29 (asking whether there is “an enactment in terms unambiguously inconsistent with [the international law] obligation”); R v Lyons [2002] UKHL 44 [2003] 1 AC 976 at §14 (international law obligation yielding to “an express and applicable provision of domestic statutory law”); 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); {6.3.15} (international law yields to clear domestic statute). 35.3.10 Undomesticated international instruments: no direct effect. {6.3.16}; {6.3.18} (human rights instruments as an exception to the dualist theory?). 35.3.11 Customary international law: received into the common law. {6.3.10}

35.4 POL: Statutorily endorsed abrogation (the proviso). The principle of legality (POL) operates with a principle, a premise, and a proviso. Public authority functions cannot be discharged in a way which abrogates a protected common law value, subject to this proviso: unless Parliament is recognised, through clear primary legislation, as having required or empowered that abrogation. The ultimate question is whether the abrogation of the protected value has statutory authority. This reflects parliamentary supremacy, itself a fundamental common law value. It requires Parliament squarely to confront the implications of the abrogation. The proviso, applied contextually, may be seen to produce this ‘three-tiered’ approach: (i) sometimes a ‘necessary implication’ suffices; (ii) sometimes ‘only express words’ would suffice (eg court accepting evidence procured by torture); (iii) sometimes ‘even express words’ would not suffice (eg abrogation of judicial review, with its constitutional inalienability). 35.4.1 POL and statutorily endorsed abrogation. R v SSHD, ex p Simms [2000] 2 AC 115, 131E-G (Lord Hoffmann: “Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. … The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality 515

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means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. … In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document”); R v Forsyth [2011] UKSC 9 [2011] 2 AC 69 at §10 (Hansard used in applying the POL, to ensure “nothing said … to suggest that the executive power being conferred was intended to permit fundamental human rights to be overridden”); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 (quashing of Orders under the POL, primary legislation being needed for these 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”); {7.4} (legislative supremacy); {35.1.11} (POL: addresses whether statutory authority for infringement of a fundamental right). 35.4.2 POL and HRA s.3 compared. {9.3} (HRA s.3: compatible interpretation); {35.1.8} (POL as a principle of statutory interpretation); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §112 (Lord Phillips, expressing the view that the case law “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”); W (Algeria) v SSHD [2010] EWCA Civ 898 at §46 (not possible under the POL to “read down” unambiguous words, to secure common law fairness, as would be possible under HRA s.3); 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). 35.4.3 Narrow, necessity-based scope of power which intrudes on constitutional right. R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §80 (Lord Reed: “Even where a statutory power authorises an intrusion upon the right …, it is interpreted as authorising only such a degree of intrusion as is reasonably necessary to fulfil the objective of the provision in question”), §82 (question is whether the “degree of intrusion was … expressly authorised by the relevant statutory provision”), §88 (“even where primary legislation authorises the imposition of an intrusion on the right …, it is presumed to be subject to an implied limitation. As it was put by Lord Bingham in Daly, the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve”); R v Governor of Frankland Prison, ex p Russell [2000] 1 WLR 2027 at §11 (Lightman J, describing the POL as ensuring that as to the “extent to which a power is impliedly conferred by statute to interfere with fundamental rights, there must be established a self-evident and pressing need for that power”); R v SSHD, ex p Saleem [2001] 1 WLR 443 at 450C; J v Welsh Ministers [2018] UKSC 66 [2019] 2 WLR 82 at §§23-25 (POL operating to defeat the conclusion that there was an implied power). 35.4.4 POL: statutory abrogation and need for clear express words. A v SSHD [2005] UKHL 71 [2006] 2 AC 221 (“common law” abhorrence of torture and torture-induced evidence), §96 (Lord Hoffmann, explaining that provision for use of torture-obtained evidence “would have to be expressly provided in primary legislation”), §114 (Lord Hope: “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”); R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §78 (“any hindrance or impediment by the executive [with access to justice] requires clear authorisation by Parliament”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §117 (Lord Toulson: “although the sovereignty of Parliament means that the responsibility of the courts for determining the scope of the open justice principle may be affected by an Act of Parliament, Parliament should not be taken to have legislated so as to limit or control the way in which the court 516

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decides such a question unless the language of the statute makes it plain beyond possible doubt that this was Parliament’s intention”); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at §14 (since statute clearly curtailing common law rights, width of the statutory provisions to be determined by ordinary principles of interpretation, not assisted by the POL); R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 at §§18-19 (rejecting an argument based on “necessary implication”, given the “constitutional point” that parliamentary counsel would have made clear a legislative change impacting on children and young persons, which would have raised serious questions for debate and scrutiny); R (Chester) v Governor of Wakefield Prison [2000] EWHC 63 (Admin) at §35 (Foskett J: “Long before the [ECHR] was incorporated into English law it was clear that a prisoner was entitled to unimpeded access to the courts, a right that could only be removed by express enactment”); R v SSHD, ex p Pierson [1998] AC 539, 575B-C (querying whether necessary implication would suffice); R v Lord Chancellor, ex p Witham [1998] QB 575 at 586A (access to the court could not be abrogated by “necessary implication”); Raymond v Honey [1983] 1 AC 1 at 14 (Lord Bridge: “a citizen’s right to unimpeded access to the courts can only be taken away by express enactment”); R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 at §38 (whether necessary implication sufficient described as being a question of “some controversy”). 35.4.5 POL: statutory abrogation by ‘necessary implication’. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§99-100 (necessary implication not sufficient where “the principle of legality” serving as an explanation for the principle that “nothing less than the clearest wording will suffice” to exclude judicial review), §166 (“This jurisdiction cannot be varied by implication”); J v Welsh Ministers [2018] UKSC 66 [2019] 2 WLR 82 at §25 (Lady Hale: “the test for a necessary implication is a strict one”); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §197 (statute “by necessary implication authorises the withholding of certain information”), §198 (however, “a provision which is unnecessary and/or disproportionate cannot be regarded as authorised by the enabling statute as a matter of necessary implication”); R (Eastenders Cash & Carry Plc) v HMRC [2014] UKSC 34 [2015] AC 1101 (implied power to detain goods) (the CA considered common law property rights: [2012] EWCA Civ 15 [2012] 1 WLR 2067 at §§88, 97); R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54 [2011] 2 AC 15 at §§16, 33 (sufficient by “necessary implication” to exclude state’s common law right to restitution of overpaid benefits), §§29-30 (contrasting threshold for “necessary implication” for POL and fundamental human rights), §31 (a “high hurdle”); R v Children and Family Court Advisory and Support Service [2003] EWHC 235 (Admin) [2003] 1 FLR 953 at §76 (“necessary implication connotes an implication that is compellingly clear”); R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2002] UKHL 21 [2003] 1 AC 563 at §45 (necessary implication and legal professional privilege, asking “what is clear that the express language of the statute shows that the statute must have included”; “reasonable implication” insufficient); SSHD v GG [2009] EWCA Civ 786 [2010] QB 585 at §§18, 30 (whether statute by necessary implication authorising personal search condition); R (Kelly) v Warley Magistrates’ Court [2007] EWHC 1836 (Admin) [2008] 1 WLR 2001 at §26 (express words or necessary implication); R v Lord Chancellor, ex p Lightfoot [2000] QB 597 (necessary implication sufficient to override a fundamental right; identifying irresistible inference from legislative history); R v Hertfordshire County Council, ex p Green Environmental Industries Limited [2000] 2 AC 412 (statute impliedly excluding freedom from self-incrimination); B (A Minor) v DPP [2000] 2 AC 428 (no express words or necessary implication to override common law presumption); R (Bright) v Central Criminal Court [2001] 1 WLR 662, 697A-B (statute authorising interference with privilege against self-incrimination, 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”); {7.4.7} (necessary implication). 35.4.6 POL: where even plain words may not suffice. {1.3} (judicial review’s constitutional inalienability); {12.3} (judicial review of primary legislation at common law). 517

P36 Alternative remedy.86 Judicial review is a last resort and its pursuit is generally inappropriate where a suitable alternative remedy exists. 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

36.1 Judicial review alongside other safeguards. Judicial review is not the sole protection against legal wrongs by public authorities. The existence of other avenues of protection, and the question whether these have been or can be pursued, affect whether judicial review will be available and, if so, how it will operate. Judicial review is, however, an ever-present safeguard and safety net against public authority action, by reference to public law standards. That means that, even where there are bespoke statutory remedial schemes, judicial review can fill any judicially perceived gaps. 36.1.1 Gap-filling judicial review: interim remedy. R (OWD Ltd) v HMRC [2019] UKSC 30 [2019] 1 WLR 4020 at §§50-73 (discussing judicial review jurisdiction to secure interim relief pending a statutory appeal, in circumstances where interim relief not available under the statutory framework governing the appeal itself); R (Davis) v Watford Borough Council [2018] EWCA Civ 529 [2018] 1 WLR 3157 at §§40-42 (judicial review of local authority’s failure to provide interim accommodation, appropriate in situations where county court not having jurisdiction to require this); R (JP) v NHS Croydon Clinical Commissioning Group [2020] EWHC 1470 (Admin) at §§38-39 (judicial review suitable, despite existence of an appeal, where continuation of care was only secured by interim remedy available only on judicial review); {20.1.16} (judicial review interim relief to secure effective tribunal appeal). 36.1.2 Gap-filling judicial review: substantive position/remedy. See eg R (Lazarov) v Bulgaria [2018] EWHC 3050 (Admin) at §§15-19 (extradition appeal court allowing a judicial review claim, so as to remit for reconsideration afresh, a remedy not available on an extradition appeal under the governing statutory framework); R (S (Albania)) v Waltham Forest LBC [2016] EWHC 1240 (Admin) (judicial review appropriate to challenge legality of exercise or failure to exercise housing needs duty, falling outside the scope of the statutory review and appeal mechanism); R (Watch Tower Bible & Tract Society of Britain) v Charity Commission [2016] EWCA Civ 154 [2016] 1 WLR 2625 at §§39, 42 (restricted statutory grounds of appeal meaning judicial review apt); MRH Solicitors Ltd v Manchester County Court [2015] EWHC 1795 (Admin) [2015] ACD 147 at §§16-18 (judicial review of county court generally needed only where no right of appeal). 36.1.3 Gap-filling judicial review: immigration. R (FH) v SSHD [2020] EWHC 1482 (Admin) (judicial review challenges to (a) refusal to revoke deportation order and (b) refusal to accept representations as fresh claim, these not being decisions attracting a right of appeal under the statutory scheme); R (Mendes) v SSHD [2020] EWCA Civ 924 (judicial review to challenge certification leading to out-of-country appeal, with interim relief claim to require facilitated return to the UK); Begum v Special Immigration Appeals Commission [2020] EWCA Civ 918 (judicial review succeeding to require claimant to be permitted entry to the UK for effective participation in appeal); PF (Nigeria) v SSHD [2015] EWCA Civ 251 [2015] 1 WLR 5235 at §34 (issue falling outside UT’s appellate jurisdiction, to be challenged by judicial review).

86The

equivalent section in a previous edition was relied on in Case No 9168/01 [2002] 2 BCLR 171 at §62.

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36.1.4 Gap-filling judicial review: Crown Court. R (AL) v Serious Fraud Office [2018] EWHC 856 (Admin) at §64 (“The High Court could … permit a judicial review to proceed if it turned out … that the Crown Court did not have power to determine this matter and there remained a lacuna in the system for protecting the rights of defence which only the High Court could fill through judicial review. In those circumstances the Court could infer that the regime instituted by Parliament did not suffice to afford full and effective protection and the High Court would then be the forum of last resort”). 36.1.5 Gap-filling judicial review: mental health tribunal. Djaba v West London Mental Health Trust [2017] EWCA Civ 436 [2018] 1 WLR 1333 at §50 (matters relating to detention, which do not fall within tribunal’s statutory jurisdiction, are left to be “determined by the High Court in judicial review proceedings”), §52 (“aspects of Convention rights which are not covered by [the statute] are none the less capable of protection via judicial review proceedings in the High Court when they fall outside the jurisdiction of the tribunal”). 36.1.6 Gap-filling judicial review: other. R (Kingston upon Hull City Council) v Secretary of State for Business, Innovation and Skills [2016] EWHC 1064 (Admin) [2016] PTSR 967 (judicial review for misdirection in law in advice regarding enforcement action) at §19 (Kerr J, explaining that the enforcement action machinery, involving different public authorities, was to “operate alongside the continuing appellate jurisdiction of the county court, and the criminal jurisdiction of the magistrates’ court. … One might have thought all those various remedies and procedures would obviate the need for judicial review, as was no doubt intended; but the grant of permission … in this case demonstrates otherwise”); R (Stern) v Horsham District Council [2013] EWHC 1460 (Admin) [2013] PTSR 1502 (judicial review available and granted, in a situation to which the statutory appeal route did not apply). 36.1.7 Existence of other safeguards supporting judicial restraint. R (L) v DPP [2013] EWHC 1752 (Admin) [2013] ACD 108 (introduction of victim right of review mechanism meaning judicial review of decision not to prosecute should be preceded by pursuit of a review, and a reduced number of cases could be expected to succeed); R v Inland Revenue Commissioners, ex p TC Coombs & Co [1991] 2 AC 283, 300D, 302D-F (independent commissioner as “the real and intended safeguard”, “the monitor of the decision”); R v Dyfed County Council, ex p Manson [1995] Env LR 83, 98 (where defect could be cured by Secretary of State when confirming by-laws, Court should not intervene); R v Local Government Commission for England, ex p Hampshire County Council 11 March 1995 unreported (appropriate avenue of public law representations to the Secretary of State, who would make ultimate decision); Reckley v Minister of Public Safety and Immigration (No 2) [1996] 1 AC 527, 537H-540B (advisory committee, under Constitution of Bahamas, treated as the constitutional safeguard with respect to the prerogative of mercy); Jahromi v SSHD [1996] Imm AR 20 (protection afforded by Independent Advisory Panel); R v Director of the Serious Fraud Office, ex p Smith [1993] AC 1, 43F-G (“ample remedies” to control hypothetical abuses). 36.1.8 Absence of other safeguards supporting judicial vigilance. R v Local Commissioner for Administration for the South (etc), ex p Eastleigh Borough Council [1988] QB 855, 866F-H (“the fact that Parliament has not created a right of appeal against the findings in a Local Commissioner’s report … coupled with the public law character of the ombudsman’s office and powers, … is the foundation of the right to [a remedy] by way of judicial review”); General Medical Council v Spackman [1943] AC 627, 640 (“Parliament has not provided for any appeal from the decisions of the council”, so that judicial review the “only control of the court to which the council is subject”); R v Governors of Haberdashers’ Aske’s Hatcham College Trust, ex p T [1995] ELR 350, 361E-H (absence of any other remedy supporting finding that college amenable to judicial review); R v Plymouth City Council, ex p Plymouth & South Devon Cooperative Society Ltd [1993] 2 PLR 75, 90G-H (“If planning permission was granted for a superstore development without due regard to the limits of material considerations, then appeal procedures would be irrelevant, and the sections of the public most directly affected would be the local community … and the local traders”); {1.1.8} (positing serious abuse of power to test availability of judicial review: standing); cf {15.2.2} (Parliament provided no appeal: Court must not invent one). 519

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36.1.9 Relevance of accountability to Parliament. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §33 (Lady Hale and Lord Reed: “the courts have a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament. The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts”), §34 (Court “ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 644f-G (Lord Diplock: “It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge”); R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 WLR 621, 625C-E (ombudsman amenable to judicial review notwithstanding accountability to Parliament; Simon Brown LJ: “Many in government are answerable to Parliament and yet answerable also to the supervisory jurisdiction of this court”); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513 (not a purely political matter where sole accountability owed to Parliament); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 536C-E (Lord Keith: “the Secretary of State must act by a draft order laid before Parliament. … These provisions ensure that a decision which is essentially political in character will be brought to the attention of Parliament and subject to scrutiny and challenge therein, and 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 Secretary of State for Social Security, ex p Nessa (1995) 7 Admin LR 402, 406H (“The appropriate medium of challenge is in Parliament not in the courts”); {34.3.5} (judicial review of delegated legislation/devolved legislation). 36.1.10 Whether claimant has ‘elected’ another safeguard, ruling out judicial review. {26.3.10} (extension of time: alternative solutions/pursuit of other avenues); Ridge v Baldwin [1964] AC 40, 126 (claimant “made it abundantly clear that by his appeal to the Secretary of State he was not in any way abandoning his right to contend that the decision of the watch committee was invalid”); Calvin v Carr [1980] AC 574, 597E (rejecting the argument that “having elected to take his case to the committee on appeal, [the claimant] had lost his right of resort to the court”); R v Civil Service Appeal Board, ex p Bruce [1989] 2 All ER 907 (judicial review refused as a matter of discretion, given pursuit of alternative remedy); R v SSHD, ex p Mande Ssenyonjo [1994] Imm AR 310 (pursuit of appeal machinery precluding claimant from challenging the original underlying decision); R v SSHD, ex p Gurnam Singh [1995] Imm AR 616, 624 (judicial review not available “where the full statutory appeals procedure has been used except in very special circumstances”); cf R v SSHD ex p Resul Erdogan [1995] Imm AR 430, 433. 36.1.11 Statutory remedy and HRA damages. Marcic v Thames Water Utilities Ltd [2003] UKHL 66 [2004] 2 AC 42 at §71 (recourse to statutory regulator constituting the claimant’s human rights remedy, subject to the regulator making an ECHR-compatible decision), §83. 36.1.12 Other safeguards as cure. {36.4} (whether action/avenue curative of public law wrong). 36.1.13 Judicial review and ADR. {10.2} (ADR/mediation).

36.2 Exclusive alternative remedy. In certain contexts, usually under bespoke legislative provisions, special alternative mechanisms are regarded as the exclusive means of challenge, so that judicial review does not arise or is effectively replaced. 36.2.1 Existence of alternative remedy not precluding Court’s jurisdiction. {36.3.3} (alternative remedy: not a jurisdictional bar). 520

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36.2.2 Whether statutory remedy exclusive. R (A) v Director of Establishments of Security Service [2009] UKSC 12 [2010] 2 AC 1 at §§22-23 (Investigatory Powers Tribunal having exclusive jurisdiction to deal with claims against the security services under the HRA, as an allocation of new statutory rights); R (Wilson) v Prime Minister [2019] EWCA Civ 304 [2019] 1 WLR 4174 at §36 (doubting whether judicial review available in the context of a referendum, given that statutory scheme governing role of the Courts); Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 302 (Lord Jenkins: “Where a statute creates a new right which has no existence apart from the statute creating it, and the statute creating the right at the same time prescribes a particular method of enforcing it, then, in the words of Lord Watson in Barraclough v Brown ([1897] AC 615, 623), ‘the right and the remedy are given uno flatu, and the one cannot be dissociated from the other’”), 304 (need for “clear words” for statutory remedy to be “exclusive method of determining questions of the kind to which it relates, and deprives the courts of the jurisdiction which they ordinarily possess”); Century National Merchant Bank and Trust Co Ltd v Davies [1998] AC 628, 637E-H (although not expressly stated in the Act, legislature intending statutory right of appeal to be exclusive remedy); Knibbs v HMRC [2019] EWCA Civ 1719 [2020] 1 WLR 731 at §17 (where “Parliament has laid down a statutory appeal process against a decision of HMRC, a person aggrieved by the decision and wishing to challenge it must use the statutory process”), citing Autologic Holdings Plc v IRC [2005] UKHL 54 [2006] 1 AC 118 at §§12-13; R (R) v Leeds City Council [2005] EWHC 2495 (Admin) [2006] ELR 25 at §48 (county court having exclusive jurisdiction to deal with discrimination claim under Race Relations Act 1976 ss.17-18); R v Acting Returning Officer for Devon (etc), ex p Sanders [1994] COD 497 (Act making clear that appropriate recourse election petition); R v Dacorum District Council, ex p Cannon [1996] 2 PLR 45 (statutory provision preventing challenge except by appeal); R v Birmingham Crown Court, ex p Ali The Times 16 October 1998 (no common law power of review in relation to surety forfeiture decisions properly made by immigration appellate authority under the Immigration Act 1971 Sch 2 para 31; instead, challenge should be to enforcing magistrates); R v Inner London Education Authority, ex p Ali (1990) 2 Admin LR 822, 831B-836C (Secretary of State’s default powers not exclusive); R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin) [2004] 4 PLR 95 at §53 (Sullivan J: “Where Parliament wishes to oust judicial review because of the availability of a statutory appeal, it has to do so in the clearest possible terms”). 36.2.3 Time-limit ouster. {28.2} 36.2.4 Whether common law (Visitorial) remedy exclusive. Thomas v University of Bradford [1987] AC 795 and Joseph v Board of Examiners of the Council of Legal Education [1994] ELR 407 (visitorial jurisdictions exclusive); R v Hull University Visitor, ex p Page [1993] AC 682, 703G-H (“no relevant distinction between a case where a statute has conferred such final and conclusive jurisdiction and the case where the common law has for 300 years recognised that the visitor’s decision on questions of fact and law are final and conclusive and are not to be reviewed by the courts”); R v University of Nottingham, ex p K [1998] ELR 184, 192F, 193H (university Visitor’s exclusive jurisdiction)); R v Dean and Chapter of St Paul’s Cathedral [1998] COD 130 (Visitor of St Paul’s having exclusive jurisdiction); R (Galligan) v University of Oxford [2001] EWHC Admin 965 [2002] ELR 494 (decision of Vice-Chancellor reviewable, there being no Visitorial jurisdiction).

36.3 Alternative remedy as a discretionary bar.87 Judicial review is regarded as being a recourse of last resort. It can be declined when the Court assesses that there is a suitable alternative remedy. The question whether the pursuit of judicial review is inappropriate on this basis is generally a permission-stage issue when that pursuit has just begun, rather than an issue for the substantive hearing when the pursuit has happened. The vast body

87The

equivalent paragraph in a previous edition was relied on in In re McDaid [2016] NICA 5 at §36 (Gillen LJ).

521

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of case law (old and new), providing working illustrations on this topic, demonstrates a judicial robustness with room for a bespoke approach tailored to the interests of justice and the public interest in the specific context and circumstances. 36.3.1 Alternative remedy: a ‘discretionary bar’. Sharma v Antoine [2006] UKPC 57 [2007] 1 WLR 780 at §14(4) (Lord Bingham and Lord Walker, describing “alternative remedy” in judicial review proceedings as “a discretionary bar”). The phrase “discretionary bar” was used by Lord Donaldson MR in R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763 at 773. R (Koyama) v University of Manchester [2007] EWHC 1868 (Admin) at §29 (HHJ Gilbart QC: “the existence of an alternative remedy is a discretionary bar to judicial review”). 36.3.2 Alternative remedy principle: in a nutshell. Judicial Review Pre-Action Protocol §5 (“Judicial review should only be used where no adequate alternative remedy, such as a right of appeal, is available”); Administrative Court: Judicial Review Guide (2020 edition) at §5.3.3.1 (“If there is another route by which the decision in issue can be challenged, which provides an adequate remedy for the claimant, that alternative remedy should generally be exhausted before applying for judicial review”); R (JP) v NHS Croydon Clinical Commissioning Group [2020] EWHC 1470 (Admin) at 9(i) (Mostyn J: “Judicial review of an exercise of executive power is a remedy of last resort. It will not be granted if there exists an equivalently efficacious alternative remedy”); R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716 [2017] 4 WLR 213 at §53 (Sales LJ, describing “the principle that judicial review will be refused where a suitable alternative remedy is available”); R (Watch Tower Bible & Tract Society of Britain) v Charity Commission [2016] EWCA Civ 154 [2016] 1 WLR 2625 at §19 (Lord Dyson MR: “If other means of redress are ‘conveniently and effectively’ available to a party, they ought ordinarily to be used before resort to judicial review. … It is only in a most exceptional case that a court will entertain an application for judicial review if other means of redress are conveniently and effectively available. This principle applies with particular force where Parliament has enacted a statutory scheme that enables persons against whom decisions are made and actions taken to refer the matter to a specialist tribunal”); QM Developments (UK) Ltd v Warrington Borough Council [2020] EWHC 1511 (Admin) at §21 (asking whether there is “an appropriate alternative remedy”), §24 (“an adequate alternative remedy”); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §71 (not the practice of the court to use the power of judicial review “where a satisfactory alternative remedy has been provided by Parliament”); Kay v Lambeth LBC [2006] UKHL 10 [2006] 2 AC 465 at §30 (Lord Bingham, referring to “the principle that if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review”). 36.3.3 Alternative remedy: not a jurisdictional bar. R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716 [2017] 4 WLR 213 at §54 (Sales LJ: “the suitable alternative remedy principle … does not apply as the result of any statutory provision to oust the jurisdiction of the High Court on judicial review. [The Court] has full jurisdiction to review the lawfulness of action by the [defendant]. The question is whether the court should exercise its discretion to refuse to proceed to judicial review (… at the permission stage) or to grant relief under judicial review at a substantive hearing according to the established principle governing the exercise of its discretion where there is a suitable alternative remedy”); R (Hussain) v Secretary of State for Justice [2016] EWCA Civ 1111 [2017] 1 WLR 761 at §31 (statutory remedy for failure to make a decision not abrogating judicial review jurisdiction), §32 (but judicial review only available in “rare and exceptional cases”); Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 580C-D (Lord Oliver: “An alternative remedy for abuse or excess, whether effective or not, may be a factor, and a very weighty factor, in the assessment of whether the discretion which the court undoubtedly has to grant or refuse judicial review should be exercised. But it cannot … bear on the question of the existence of the jurisdiction”), 581D-E (never “suggested that the mere existence of an alternative remedy, of itself and by itself, ousts the jurisdiction of the court, though it may be a powerful factor when it comes to the question of whether the discretion to review should be exercised”); R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin) [2004] 4 PLR 95 522

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at §53 (“The fact that the claimant could have raised all of its complaints under [statutory review] does not oust the court’s power to grant judicial review”); R v Secretary of State for the Environment, Transport and the Regions, ex p Channel Tunnel Group Ltd [2001] EWCA Civ 1185 at §40 (arbitration clause under relevant Treaty not precluding court from deciding meaning of Treaty and whether Directions ultra vires the corresponding domestic statute); R v Legal Aid Board, ex p Donn & Co (a Firm) [1996] 3 All ER 1, 11j (decision to award contract to another firm amenable to judicial review whether or not any private law remedy available). 36.3.4 Rationale for the alternative remedy principle. 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, since it is a matter of discretion for the court, 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. Also, in considering what should be taken to qualify as a suitable alternative remedy, the court should have regard to the provision which Parliament has made to cater for the usual sort of case in terms of the procedures and remedies which have been established to deal with it. If Parliament has made it clear by its legislation that a particular sort of procedure or remedy is in its view appropriate to deal with a standard case, the court should be slow to conclude in its discretion that the public interest is so pressing that it ought to intervene to exercise its judicial review function along with or instead of that statutory procedure. But of course it is possible that instances of unlawfulness will arise which are not of that standard description, in which case the availability of such a statutory procedure will be less significant as a factor”). 36.3.5 Judicial review as a last resort. R (Archer) v HMRC [2019] EWCA Civ 1021 [2019] 1 WLR 6355 at §§77, 91 (Henderson LJ, referring to “the last resort of judicial review”); R (Rafique-Aldawery) v St George’s, University of London [2018] EWCA Civ 2520 [2019] PTSR 658 at §18 (Davies LJ: “judicial review is a remedy of last resort in circumstances where an alternative, albeit not identical, remedy exists”); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §19 (Lady Hale: “Judicial review was always a remedy of last resort”); R (C) v Nottingham City Council [2010] EWCA Civ 790 [2011] 1 FCR 127 at §36 (Jackson LJ: “the parties are under a heavy obligation to resort to litigation – and … to continue with litigation – only if that is really unavoidable”); R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731 [2005] 1 WLR 1445 at §27 (“judicial review is a remedy of last resort”); R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935 [2002] 1 WLR 803 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”); R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 at §27 (“judicial review is a legal recourse of last resort and [a claimant] must exhaust any proper alternative remedy open to him before the judicial review court will consider his case”); R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §42 (“the established principle that judicial review is a remedy of last resort”); R v Panel on Take-overs and Mergers, ex p Guinness Plc [1990] 1 QB 146, 177E, G-178A (“the judicial review jurisdiction of the High Court … is a supervisory or ‘long stop’ jurisdiction. … [C]onsistently with this ‘long stop’ character, it is not the practice of the court to entertain an application for judicial review unless and until all avenues of appeal have been exhausted, at least in so far as the alleged cause for complaint could thereby be remedied”); R v Metropolitan Stipendiary Magistrate, ex p London Waste Regulation Authority [1993] 3 All ER 113, 120b-c (“judicial review is a remedy of last resort”); R v Sandwell Metropolitan Borough Council, ex p Wilkinson (1999) 31 HLR 22, 28 (“Principle and pragmatism combine to emphasise the legal fact that judicial review is a remedy of last resort”); R v Portsmouth Hospitals NHS Trust, ex p Glass [1999] 2 FLR 905, 909G (“Judicial review is always regarded as a procedure of last resort”); R (Lloyd) v Dagenham LBC [2001] EWCA Civ 533 (2001) 4 CCLR 196 at §27 (“The Court is here as a last resort where there is illegality”); R v Serumaga [2005] EWCA Crim 370 [2005] 1 WLR 3366 at §9 (“the last resort remedy of judicial review”). 523

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36.3.6 Rationale for the ‘last resort’ principle. R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716 [2017] 4 WLR 213 at §56 (Sales LJ: “Treating judicial review in ordinary circumstances as a remedy of last resort fulfils a number of objectives. It ensures the courts give priority to statutory procedures as laid down by Parliament, respecting Parliament’s judgment about what procedures are appropriate for particular contexts. It avoids expensive duplication of the effort which may be required if two sets of procedures are followed in relation to the same underlying subject matter. It minimises the potential for judicial review to be used to disrupt the smooth operation of statutory procedures which may be adequate to meet the justice of the case. It promotes proportionate allocation of judicial resources for dispute resolution and saves the High Court from undue pressure of work so that it remains available to provide speedy relief in other judicial review cases in fulfilment of its role as protector of the rule of law, where its intervention really is required”), echoed in R (Short) v Police Misconduct Tribunal [2020] EWHC 385 (Admin) [2020] ACD 47 at §48 (Saini J). 36.3.7 Alternative remedy: striking a balance. R (Fire Brigade Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (Admin) [2018] 3 CMLR 27 at §131 (Kerr J: “It is important that the judicial review jurisdiction should is not stultified by over-enthusiastic reliance on the proposition that it should be a remedy of last resort. Judicial review [claimants] are often told they have selected the wrong target, or invoked the wrong remedy. … [T]he appropriateness of granting or withholding relief depends on all the circumstances and each case turns on its own facts”); {1.1.9} (positing serious abuse of power to test availability of judicial review: alternative remedy). 36.3.8 ADR/mediation. {10.2}. 36.3.9 Alternative remedy/ADR and modest HRA damages claims. R (Idolo) v Bromley LBC [2020] EWHC 860 (Admin) (2020) 23 CCCL Rep 295 (a case where the issue was HRA damages claimed at £10,000) at §77 (Rowena Collins Rice: “a claimant should expect to have to explain at the permission stage why it would not be more appropriate to pursue internal complaint procedures, or proceed via the Parliamentary Commissioner for Administration or Local Government Ombudsman – systems designed to deal economically and expeditiously with compensation for maladministration. There is also a strong steer towards alternative dispute resolution, and towards other ways in which proportionate resolution of this type of claim can be achieved”, referring to Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 [2004] QB 1124 at §§79-81), §78 (“It is incumbent upon counsel to see that these matters are addressed at the permission stage”), §79 (internal complaint or ombudsman could have established “a fuller context” and “a much more detailed account” leading to “a more definitive answer”). 36.3.10 Alternative remedy: HRA-compatibility. R (QR (Pakistan)) v SSHD [2018] EWCA Civ 1413 at §56 (cases on Art 8-compatibility of out-of-country FTT appeal, after R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380, should be listed first for FTT directions hearing to consider the individual circumstances, as “the natural and appropriate forum for considering and determining issues as to whether such an appeal will be effective”). 36.3.11 Alternative remedy as a basis for refusing permission. R (Grace Bay II Holdings Sarl) v Pensions Regulator [2017] EWHC 7 (Admin) [2017] ACD 32 at §59 (alternative remedy addressed at permission stage), §80 (permission refused because of alternative remedy); R (Boulting) v HMRC [2020] EWHC 2207 (Admin) at §33 (permission refused because alternative remedy); R (Med Chambers Ltd) v Medco Registration Solutions Ltd [2017] EWHC 3258 (Admin) at §39 (permission refused because alternative remedy); R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738 [2003] 1 WLR 475 at §§46-47 (referring to the “abundance of authority” for “the proposition that permission to claim judicial review should not be granted when a suitable alternative remedy is available”); Roy v Kensington & Chelsea & Westminster Family Practitioner Committee [1992] 1 AC 624, 637F-H (claimant “may (but not must) be refused [permission] to apply for judicial review on the ground that he has not exhausted his statutory remedy”); Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705, 716j-717d (permission refused because alternative remedy); {36.3.12} (alternative remedy as a permission-stage issue). 524

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36.3.12 Alternative remedy as a permission-stage issue.88 Administrative Court: Judicial Review Guide (2020 edition) at §5.3.3.3 (“If the Court finds that the claimant has an adequate alternative remedy, it will generally refuse permission to apply for judicial review”); R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716 [2017] 4 WLR 213 at §71 (correct to refuse permission on basis of alternative remedy, but since permission subsequently granted appropriate to refuse relief on grounds of alternative remedy); R (C) v Financial Services Authority [2012] EWHC 1417 (Admin) at §§37-38 (alternative remedy issue would normally be resolved at permission stage, but permission granted here “on the basis that the issue of whether the claimant had a suitable alternative remedy could be dealt with on the substantive hearing”); R v Chief Constable of West Yorkshire, ex p Wilkinson [2002] EWHC 2353 (Admin) at §42 (Davis J, treating the permission stage as “critical” in relation to an alternative remedy objection); R v Essex County Council, ex p EB [1997] ELR 327, 329C (McCullough J: “questions about the availability of an alternative procedure will normally arise on the application for [permission] and not at the hearing on the merits”); R v Falmouth and Truro Port Health Authority, ex p South West Water Ltd [2001] QB 445, 472A (referring to the permission stage as “perhaps the most important decision”), 473D (“The critical decision in an alternative remedy case, certainly one which requires a stay, is that taken at the grant of permission stage”); R v Lambeth LBC, ex p Crookes (1997) 29 HLR 28, 35 (emphasising “the opportunity, at the moment of considering the application for [permission] to apply for judicial review, to determine the right course of action for the [claimant] to pursue”); R v Peterborough Justices, ex p Dowler [1997] QB 911, 923H-924A (treating the question whether exceptional case appropriate for judicial review in the face of appellate avenue as a question for the permission stage, as to which the potential defendant should be heard); R v Secretary of State for Health, ex p British Association of European Pharmaceutical Distributors [2001] EuLR 464 at §§160-161 (alternative remedy question “should have been raised [by the defendant] at a much earlier stage”); R v University of Cambridge, ex p Evans [1998] ELR 515, 517H (holding that “arguable, that this is not a true alternative form of recourse at all”); R v Secretary of State for Social Security, ex p West [1999] 1 FLR 1233, 1235B (treated as sufficient that arguable that entitled to pursue judicial review); R v Falmouth and Truro Port Health Authority, ex p South West Water Ltd [2001] QB 445, 472F-473D (where statutory right of appeal, permission should not have been granted on so wide-ranging a basis, but should have been for a “limited judicial review”, “restricted to two issues”); {21.2.28} (granting limited permission/conditional permission); {22.4.18} (trial of a preliminary issue in judicial review); {10.3.7} (aspects of claimant candour, including duty to identify alternative remedy). 36.3.13 Permission judge: acting to keep alternative remedy issue open. R (Fisher) v Durham County Council [2020] EWHC 1277 (Admin) [2020] ACD 85 at §86 (judge “gave permission but also expressly gave the [defendant] liberty to re-argue (for the purposes of both merits and relief) any point arising out of allegedly adequate alternative remedies … at the final hearing”); R (C) v Financial Services Authority [2012] EWHC 1417 (Admin) at §§37-38 (permission granted here “on the basis that the issue of whether the claimant had a suitable alternative remedy could be dealt with on the substantive hearing”). 36.3.14 Alternative remedy and discretion to grant/refuse remedy.89 R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716 [2017] 4 WLR 213 at §71 (appropriate to refuse relief on grounds of alternative remedy); R (M) v London Borough of Bromley [2002] EWCA Civ 1113 [2002] 3 FCR 193 at §23 (alternative remedy “one aspect of a more general

88The

equivalent paragraph in a previous edition was relied on in R (Wilkinson) v Chief Constable of West Yorkshire [2002] EWHC 2353 (Admin) [2002] Po LR 328 at §42 (Davis J); R (Soar) v Secretary of State for Justice [2015] EWHC 392 (Admin) at §46 (Philip Mott QC). 89The equivalent paragraph in a previous edition was relied on in R (McIntyre) v Gentoo Group Ltd [2010] EWHC 5 (Admin) at §102 (John Howell QC); R (Dennison) v Bradford Districts Clinical Commissioning Group [2014] EWHC 2552 (Admin) at §19 (William Davis J).

525

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discretionary power of the court to refuse relief in an appropriate case”); R (JD Wetherspoon Plc) v Guildford Borough Council [2006] EWHC 815 (Admin) [2007] 1 All ER 400 at §90 (alternative remedy can be basis for refusing substantive application); R v Mansfield District Council, ex p Ashfield Nominees Ltd (1999) 31 HLR 805 (alternative remedy as ground for refusing substantive application); R v Civil Service Appeal Board, ex p Bruce [1989] 2 All ER 907 (remedy refused where alternative remedy being pursued), 912f-j (alternative remedy relevant to exercise of discretion); R v Chief Constable of West Yorkshire, ex p Wilkinson [2002] EWHC 2353 (Admin) at §43 (“even where permission has been granted in an alternative remedy case, the alternative remedy argument may possibly … be available to be deployed at a substantive hearing on any discussion as to the appropriateness of relief, if any, to be granted”); R v Secretary of State for the Environment, Transport and the Regions, ex p Channel Tunnel Group Ltd [2001] EWCA Civ 1185 (deciding at substantive hearing whether judicial review appropriate in the light of an arbitration clause). 36.3.15 Alternative remedy at the substantive hearing: dealing with the substance. R (B) v Redbridge LBC [2019] EWHC 250 (Admin) [2019] PTSR 1525 at §25 (Jeremy Johnson QC: “the question of whether the Claimant has an alternative remedy is primarily a matter for consideration in determining whether to grant permission to claim judicial review”; “It may, in some cases, be open to a Court to refuse relief at a substantive hearing on the basis that there is an alternative remedy”, but “not … appropriate to take that course here”); R (Rehoune) v Islington LBC [2019] EWHC 371 (Admin) at §10 (alternative remedy submissions having “lost some of their force” where permission granted); R (Ogbeni) v Tower Hamlets LBC [2008] EWHC 2444 (Admin) at §51 (having heard full argument and claimant’s case being well-founded, interests of justice served by granting judicial review, rather than compelling future use of alternative procedures); R (Fisher) v Durham County Council [2020] EWHC 1277 (Admin) [2020] ACD 85 at §104 (Julian Knowles J: “to require [the issues] to be re-litigated before the magistrates, would simply delay the final resolution of this troubling case. No doubt, whichever way the magistrates ruled, there would be further litigation in the High Court with the result that the matter would likely remain unresolved for many months to come. That would not be in anyone’s interests”), §114 (“there has been a full hearing of the judicial review … on the substantive grounds”), §115 (“no material disputes of fact … no question of the judicial review rendering matters moot due to the efluxion of time” and the issues “are not peripheral public law issues” but involve “legal complexity”). 36.3.16 Alternative remedy and adjournment/costs. R (Davies) v HMRC [2008] EWCA Civ 933 at §7 (“if a tribunal of fact exists which can find the relevant facts it is normally good practice to postpone judicial review until after the facts have been found”), §17 (inapt to adjourn here); R v Sefton Metropolitan Borough Council, ex p Harrison [1995] COD 178 (refusal of costs because of failure to use alternative remedy); R v Inland Revenue Commissioners, ex p Opman International UK [1986] 1 WLR 568 (costs refused because alternative remedy); R v Trafford Borough Council, ex p Colonel Foods Ltd [1990] COD 351 (costs ordered against claimant where grounds for judicial review satisfied, but remedy refused as a matter of discretion given existence of alternative remedy by way of appeal). 36.3.17 Claimant’s lost opportunity to pursue an adequate remedy. R (Chaudhry) v SSHD [2018] EWHC 3887 (Admin) at §11 (Lambert J: “judicial review is not normally to be used when an adequate alternative remedy is available, save in exceptional circumstances. The fact that the remedy is no longer available because the Claimant chose not to pursue it does not make the remedy any less ‘adequate’.”), referring to R (Carnell) v Regents Park College [2008] EWHC 739 (Admin) at §33 (Black J: “The fact that the … complaints procedure is no longer available is by virtue of the Claimant choosing not to pursue it initially and then maintaining that course. … [T]hat original remedy would have been available to the Claimant had he made different choices”); cf {31.3.9} (procedural fairness: failure to request/complain/ act). 36.3.18 Unused statutory appeal/remedy: judicial review only in ‘exceptional circumstances’. R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716 [2017] 4 WLR 213 at §58 (Sales LJ), citing R v Inland Revenue Commissioners, ex p Preston [1985] 526

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AC 835, 852F (Lord Scarman: “Where Parliament has provided by statute appeal procedures … it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision”); R (Oval Estates (St Peter’s) Ltd) v Bath & North East Somerset Council [2020] EWHC 457 (Admin) [2020] PTSR 861 at §40 (Swift J: “there are circumstances that excuse [the claimant’s] failure to pursue its statutory rights of appeal”); Harley Development Inc v Commissioner of Inland Revenue [1996] 1 WLR 727, 736C (“where a statute lays down a comprehensive system of appeals procedure against administrative decisions, it will only be in exceptional circumstances, typically an abuse of power, that the courts will entertain an application for judicial review of a decision which has not been appealed”); R (Terra Services Ltd) v National Crime Agency [2020] EWHC 1640 (Admin) at §38 (statute making the Investigatory Powers Tribunal the appropriate forum), §41 (need for “exceptional circumstances” to pursue judicial review instead); R (Khan) v SSHD [2014] EWHC 2494 (Admin) [2016] 1 WLR 747 at §70 (Green J, summarising the principles applicable to whether an out-of-country appeal constitutes an alternative remedy); MRH Solicitors Ltd v Manchester County Court [2015] EWHC 1795 (Admin) [2015] ACD 147 at §30 (Nicol J: “While we have identified a potential procedural route by which they might have had access to an appellate court, we do not think it would be right to shut the judicial review door because the Claimants in these proceedings did not follow it”); R (Great Yarmouth Port Co Ltd) v Marine Management Organisation [2013] EWHC 3052 (Admin) [2014] ACD 23; R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738 [2003] 1 WLR 475 at §48 (would need “exceptional circumstances” to allow claimant who had failed to seek permission to appeal from a county court decision to proceed by judicial review, since that would defeat the sensible statutory scheme); R v SSHD, ex p Swati [1986] 1 WLR 477 (need for exceptional circumstances); R v London Borough of Newham, ex p R [1995] ELR 156, 163B-D (appeal to Secretary of State more “appropriate” and “effective” than judicial review); R (M) v London Borough of Bromley [2002] EWCA Civ 1113 [2002] 3 FCR 193 (challenge to process by which claimant placed on child abuse register should have been by statutory appeal to a tribunal); R (Kurdistan Workers Party) v SSHD [2002] EWHC 644 (Admin) (in challenging the proscription of organisations, more appropriate at least in the first instance for the statutory remedy of appeal to the Proscribed Organisations Appeal Commission to be pursued), §91 (“any [judicial review] challenge should at the very least await the outcome of the appeals”); R v Merton LBC, ex p Sembi (2000) 32 HLR 439 (importance of seeking review and appeal to county court under Housing Act 1996, rather than judicial review); R v Falmouth and Truro Port Health Authority, ex p South West Water Ltd [2001] QB 445, 473D (permission for judicial review very rare where unused appeal “in a case concerning public safety”). 36.3.19 Unused appeal: judicial review entertained. R (Fisher) v Durham County Council [2020] EWHC 1277 (Admin) [2020] ACD 85 at §104 (Julian Knowles J: “to require [the issues] to be re-litigated before the magistrates, would simply delay the final resolution of this troubling case. No doubt, whichever way the magistrates ruled, there would be further litigation in the High Court with the result that the matter would likely remain unresolved for many months to come. That would not be in anyone’s interests”), §114 (“there has been a full hearing of the judicial review … on the substantive grounds”), §115 (“no material disputes of fact … no question of the judicial review rendering matters moot due to the efluxion of time” and the issues “are not peripheral public law issues” but involve “legal complexity”); R (Arslan) v SSHD [2006] EWHC 1877 (Admin) at §34 (out-of-country appeal would disrupt claimant’s shopkeeping business); R (Lim) v SSHD [2006] EWHC 3004 (Admin) at §43 (out-of-country appeal “a wholly inadequate means of determining the issue of precedent fact”); R (JD Wetherspoon Plc) v Guildford Borough Council [2006] EWHC 815 (Admin) [2007] 1 All ER 400 at §91 (question of principle affecting licensing law generally); R v Hereford Magistrates’ Court, ex p Rowlands [1998] QB 110 (where procedural unfairness leading to magistrates’ conviction, defendant entitled to judicial review notwithstanding availability of appeal to Crown Court); R (DR) v Head Teacher of St George’s Catholic School [2002] EWCA Civ 1822 [2003] ELR 104 at §§33, 35 (Rowlands not establishing that magistrates’ conviction would be quashed even following a “fair but unsuccessful crown court appeal”), §45 (asking whether impropriety, a point of principle or need for interim remedy), 527

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§54 (or where otherwise-unachievable speedy determination needed); R (Dolatabadi) v Transport for London [2005] EWHC 1942 (Admin) at §§19, 26 (judicial review granted to ensure the only proper outcome despite unused appeal remedy). 36.3.20 Alternative remedy: whether satisfactory/adequate/suitable. R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 at §41 (Treacy LJ, Stuart-Smith J and Judge Munro QC, describing the “general principle” as being: “where there is an alternative remedy available to the claimant the court will not ordinarily allow him to proceed by way of judicial review, save in exceptional circumstances, usually because it is satisfied that the alternative remedy is for some reason clearly unsatisfactory”), §42 (“not a satisfactory alternative remedy”), §46 (not a “‘satisfactory’ alternative remedy within the terms of the general principle”). R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §71 (not the practice of the court to use the power of judicial review “where a satisfactory alternative remedy has been provided by Parliament”); R (AL) v Serious Fraud Office [2018] EWHC 856 (Admin) at §67 (whether errors “can be adequately addressed in alternative proceedings”), §69 (considering “adequacy” of the statutory alternative); R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716 [2017] 4 WLR 213 at §53 (Sales LJ, describing “the principle that judicial review will be refused where a suitable alternative remedy is available”); R (Hussain) v Secretary of State for Justice [2016] EWCA Civ 1111 [2017] 1 WLR 761 at §30 (statutory remedy for failure to disclose data “a suitable remedy for individuals to vindicate their rights”); R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 [2015] AC 1344 at §24 (reasonable adjustments issues better suited to employment tribunal); R (C) v Financial Services Authority [2012] EWHC 1417 (Admin) at §99 (asking whether “the statutory procedure for redress does not exceptionally on the facts provide a suitable alternative remedy”), §102 (reference to Upper Tribunal on the merits not an adequate alternative remedy); R v Birmingham City Council, ex p Ferrero Ltd [1993] 1 All ER 530, 537c (necessary “to look carefully at the suitability of the statutory appeal in the context of the particular case”); R v Leeds City Council, ex p Hendry (1994) 6 Admin LR 439, 443D-F (“the question … is not simply whether or not there is an alternative statutory appeal procedure but whether in the context of that procedure the real issue to be determined can sensibly be determined by that means”); Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 566H-567A (whether available remedy “falls short of adequacy”); QM Developments (UK) Ltd v Warrington Borough Council [2020] EWHC 1511 (Admin) at §21 (asking whether there is “an appropriate alternative remedy”), §24 (“an adequate alternative remedy”). 36.3.21 Alternative remedy: whether effective and convenient. R (Watch Tower Bible & Tract Society of Britain) v Charity Commission [2016] EWCA Civ 154 [2016] 1 WLR 2625 at §19 (Lord Dyson MR: “If other means of redress are ‘conveniently and effectively’ available to a party, they ought ordinarily to be used before resort to judicial review. … It is only in a most exceptional case that a court will entertain an application for judicial review if other means of redress are conveniently and effectively available”); Kay v Lambeth LBC [2006] UKHL 10 [2006] 2 AC 465 at §30 (Lord Bingham, referring to “the principle that if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review”); R (JP) v NHS Croydon Clinical Commissioning Group [2020] EWHC 1470 (Admin) at 9(i) (Mostyn J: “Judicial review of an exercise of executive power is a remedy of last resort. It will not be granted if there exists an equivalently efficacious alternative remedy”); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §99 (employment tribunal not “equally convenient and effective”); R v Hillingdon LBC, ex p Royco Homes Ltd [1974] QB 720, 728 (asking whether an “equally effective and convenient remedy”); R v Huntingdon District Council, ex p Cowan [1984] 1 WLR 501, 507 (“the court should always ask itself whether the remedy that is sought in court, or the alternative remedy … is the most effective and convenient, in other words, which of them will prove to be the most effective and convenient in all the circumstances, not merely for the [claimant], but in the public interest”); Ex p Waldron [1986] QB 824, 852F-853A (“Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge 528

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which is more readily available to the alternative appellate body”, and whether the alternative remedy “apt to decide the question”); R v Devon County Council, ex p Baker [1995] 1 All ER 73, 92f (“Which of two available … avenues of redress, is to be preferred will depend ultimately upon which is the more convenient, expeditious and effective”); R v Essex County Council, ex p EB [1997] ELR 327, 329C (“whether the alternative procedure would be equally convenient and effective”). 36.3.22 Alternative remedy: absence of participatory rights. Primecrown Ltd v Medicines Control Agency [1997] EuLR 657, 659F (cross-application for judicial review because “no right to be heard” on competitor’s statutory review); R v London Borough of Southwark, ex p Dagou (1996) 28 HLR 72, 81 (“the statutory arbitral procedure is not a remedy available to the [claimant]. It is an alternative resolution disposal between the notified and notifying authorities. … The [claimant] has no say”); R v Snaresbrook Crown Court, ex p Director of Serious Fraud Office The Times 26 October 1998 (judicial review appropriate where Crown Court has dismissed counts on indictment, because defendant having no right to be heard on, nor any right of appeal or review following, application for leave to prefer a voluntary bill); R (DPP) v Camberwell Youth Court [2004] EWHC 1805 (Admin) [2005] 1 WLR 810 (affirming participatory advantages of judicial review). 36.3.23 Alternative remedy: scope/range of remit/remedy. R (OWD Ltd) v HMRC [2019] UKSC 30 [2019] 1 WLR 4020 at §§50-73 (discussing judicial review jurisdiction to secure interim relief pending appeal, in circumstances where interim relief not available on the appeal itself; see too CC & C Ltd HMRC [2014] EWCA Civ 1653 [2015] 1 WLR 4043 at §§42-43); {20.1.16} (judicial review interim relief to secure effective tribunal appeal); R (Bukartyk) v Welwyn Hatfield Borough Council [2019] EWHC 3480 (Admin) at §60 (appeal to the county court not a suitable alternative remedy because fresh medical evidence could not be considered); R (Grace Bay II Holdings Sarl) v Pensions Regulator [2017] EWHC 7 (Admin) [2017] ACD 32 at §66 (remedies similar in effect); R (Watch Tower Bible & Tract Society of Britain) v Charity Commission [2016] EWCA Civ 154 [2016] 1 WLR 2625 at §§39, 42 (restricted statutory grounds of appeal against one of two decisions meaning no convenient and effective remedy in relation to that matter and judicial review apt); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §97 (claim for unfair dismissal not permitting quashing order so that remaining in office), §98 (judicial review “much more valuable … in both financial and reputational terms”); R (G) v Barnet LBC [2005] EWHC 1946 (Admin) [2006] ELR 4 (judicial review appropriate to secure interim relief, pending special educational needs appeal); R (Smith) v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291 [2006] 1 WLR 3315 at §9 (Patient’s Forum not an alternative remedy where “no power or status to require the [defendant] to reverse its decision”); R (Manson) v Ministry of Defence [2005] EWCA Civ 1678 (whether employment tribunal jurisdiction extended to the issue); Raffile v Government of the United Stated of America [2004] EWHC 2913 (Admin) [2005] 1 All ER 889 at §35 (whether circumstances covered by terms of statutory extradition appeal); R v Inland Revenue Commissioners, ex p Mead [1993] 1 All ER 772, 783a-b (“the fact that there is an alternative remedy in respect of some matters” should not “prevent direct access to this court if those remedies do not cover the whole ambit of the jurisdiction in judicial review. If there is a gap the litigant should be able to avail himself of it”); R v Manchester Metropolitan University, ex p Nolan [1994] ELR 380, 396D (internal review not “as certain or as full as the recourse to law”); R (Kurdistan Workers Party) v SSHD [2002] EWHC 644 (Admin) at §§85-87 (pursue appeal first, albeit not full range of remedies (including declaration of incompatibility and HRA damages), being available later on judicial review if appropriate); R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935 [2002] 1 WLR 803 at §14 (alternative remedy need not “cover exactly the same ground as judicial review”, sufficient that “a significant part of the issues between the parties could be resolved outside the litigation process” and legal issue could subsequently be examined by court); GH v SSHD [2005] EWCA Civ 1182 at §47 (judicial review appropriate against removal directions, where no appealable decision); EN (Serbia) v SSHD [2009] EWCA Civ 630 [2010] QB 633 at §§86-87 (tribunal not able to quash delegated legislation, so may be appropriate to adjourn for judicial review). 529

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36.3.24 Alternative remedy: legislative intent/proportionality. R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731 [2005] 1 WLR 1445 at §20 (Lord Phillips, Sedley LJ and Scott Baker LJ: “Where Parliament enacts a remedy with the clear intention that this should be pursued in place of judicial review, it is appropriate to have regard to the considerations giving rise to that intention”; “the judges should, so far as consistent with the rule of law, have regard to legislative policy”; court should “consider whether an alternative remedy is proportionate when deciding whether to exercise its power of judicial review”), §23 (statutory review “a satisfactory judicial process for the question that it was designed to address”); R (Sinclair Gardens Investments (Kensington) Ltd) v Lands Tribunal [2005] EWCA Civ 1305 [2006] 3 All ER 650 at §§40-41 (whether statutory scheme giving adequate and proportionate protection, having regard to the nature of the issues, the effect of the procedures, the nature of the tribunals and the legislative intention). 36.3.25 Alternative remedy: suitable issue for judicial review. R (Business Energy Solutions Ltd) v Preston Crown Court [2018] EWHC 1534 (Admin) [2018] 1 WLR 4887 at §126 (Green J, explaining that an “issue of law” had been “decided against the claimants” and could have “a dramatic effect”; “there was nowhere else for this point of law to be tested”), §127 (“the central issue of law arising in this case is a matter suitable for judicial review”); R (Singh) v Cardiff City Council [2012] EWHC 1852 (Admin) at §55 (judicial review appropriate for challenge to lawfulness of policy), §54 (especially since could not evidently be impugned in appeal to magistrates against the individual decision); R (Al-Le Logistics Ltd) v Traffic Commissioner for the South Eastern and Metropolitan Traffic Area [2010] EWHC 134 (Admin) at §106 (judicial review appropriate to rule on whether apparent bias in decision to continue proceedings against claimant); R v Devon County Council, ex p Baker [1995] 1 All ER 73, 87b-c (Dillon LJ: “[T]he issue is entirely one in law in a developing field which is peculiarly appropriate for decision by the courts rather than by the Secretary of State”), 92f-h (Simon Brown LJ: “Where …, as here, what is required is the authoritative resolution of a legal issue … then … judicial review [is] the more convenient alternative remedy”); R v Newham LBC, ex p X [1995] ELR 303 (“the issues raised are … essentially matters of law”); R v Governing Body of The Rectory School and The London Borough of Richmond, ex p WK (A Minor) [1997] ELR 484 (questions of procedural propriety regarded as important questions of law for judicial review and not statutory appeal); R v Leeds City Council, ex p Hendry (1994) 6 Admin LR 439, 443G-444A (magistrates not generally the appropriate forum for deciding questions of vires); R v Wiltshire County Council, ex p Lazard Brothers & Co Ltd The Times 13 January 1998 (judicial review appropriate despite available public inquiry and appeal, where council threatening to make plain error of law); R v London Borough of Ealing, ex p Times Newspapers Ltd [1987] IRLR 129 (clear abuse of power, for which the remedy was for the Court, not requested Secretary of State intervention); R v Lambeth LBC, ex p A (1998) 10 Admin LR 209, 228A (“the statutory complaints procedure … may provide a more suitable means of redress in a case where no question of law arises”); R v Sutton LBC, ex p Tucker (1998) 1 CCLR 251, 275B-G (neither statutory complaints procedure nor default powers as convenient, expeditious or effective as judicial review, where discrete point of law); R v Wiltshire County Council, ex p Nettlecombe Ltd (1998) 96 LGR 386 (plain error of law); R v Gloucestershire County Council, ex p RADAR (1998) 1 CCLR 476 (statutory complaints mechanism not a suitable alternative remedy in relation to general issue of principle arising); R v London Leasehold Valuation Tribunal, ex p Daejan Properties Ltd The Times 20 October 2000 (Administrative Court) at §15 (judicial review appropriate for “short point of statutory construction”); Macharia v SSHD [2000] INLR 156 at §32 (Sedley LJ: judicial review more appropriate than appeal to CA, where question of natural justice as to what IAT did); R v Nottingham City Council, ex p Howitt [1999] COD 530 (issue of inflexibility of policy evidently treated as appropriate question for judicial review; unlike matters going to individual facts which were more apt for resolution by statutory appeal). 36.3.26 Suitability and alternative remedy: other factors. {17.3.5} (alternative remedy/ forum more suitable for resolving disputed facts); Sher v Chief Constable of Greater Manchester Police [2010] EWHC 1859 (Admin) [2011] 2 All ER 364 at §82 (private law action a suitable alternative remedy notwithstanding public funding difficulties: “Judicial 530

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review proceedings do not exist in order for claimants to circumvent the usual rules relating to civil litigation and the funding and costs thereof”); R v Ministry of Defence Police, ex p Byrne [1994] COD 429 (inappropriate to require claimant to invoke internal appeals machinery where impugned decision made by head of police force); R v Ministry of Agriculture, Fisheries and Food, ex p Dairy Trade Federation Limited [1998] EuLR 253, 263G-265B (more appropriate to challenge alleged abuse of dominant position directly, rather than indirect judicial review challenge to MAFF for not preventing it); R v Secretary of State for the Environment, ex p Davidson (1990) 2 Admin LR 94 (wrong to allow restrictions in statutory remedy to be circumvented; ie time limit and restricted scope of remedy); R v Inspector of Taxes, ex p Kissane [1986] 2 All ER 37, 39j-40d (judicial review appropriate given availability of costs); R v Environment Agency, ex p Petrus Oils Ltd [1999] Env LR 732 (appeal an adequate alternative remedy despite non-availability of costs); R v London Borough of Tower Hamlets, ex p Bradford [1997] COD 195 and 282 (remedy might have been refused because alternative remedy, but for fact that would have caused unacceptable delay); R v Special Educational Needs Tribunal, ex p KL [1997] ELR 504 (judicial review appropriate despite availability of statutory review by decision-maker, because no prospect of different decision being reached on such a review); R v Bassetlaw District Council, ex p Oxby The Times 18 December 1997 (legitimate for council to seek judicial review of its own decisions, acting by its leader, rather than to revoke them and pay statutory compensation); R v Bristol City Council, ex p Everett [1999] 1 WLR 92 (Richards J), 106H-107B (where local authority, as “primary enforcement authority” acted unlawfully in not pursuing statutory nuisance functions, judicial review appropriate despite availability to the claimant of complaint to magistrates); R v Snaresbrook Crown Court, ex p Director of Serious Fraud Office The Times 26 October 1998 (judicial review more appropriate than application for leave to prefer voluntary bill, inter alia because High Court’s decision as to the latter not giving the accused a right of appeal, nor appealable or reviewable); R v Royal Borough of Kingston-Upon-Thames, ex p T [1994] 1 FLR 798, 813H (no point of general public importance); R v SSHD, ex p Q [2000] UKHRR 386, 402A (judicial review appropriate to decide whether decision threatening right to a fair trial, rather than seeking stay of criminal trial itself for abuse of process); R v Portsmouth Hospitals NHS Trust, ex p Glass [1999] 2 FLR 905 (child’s best interests paramount, and court not therefore concerned about is whether the right procedure has been used); R (P and Q) v SSHD [2001] EWCA Civ 1151 [2001] 1 WLR 2002 at §§119-120 (Family Division proceedings more appropriate than Administrative Court where issue whether separation of incarcerated mother and her child unlawful as seriously compromising welfare of the child); R v Kensington and Chelsea Royal LBC, ex p Byfield (1999) 31 HLR 913 (judicial review appropriate, albeit that arising out of decisions amenable to statutory appeal, where the point of law in the case concerned legality of policy). 36.3.27 Alternative remedy: judicial review or ombudsman? R (Scholarstica Umo) v Commissioner for Local Administration in England [2003] EWHC 3202 (Admin) [2004] ELR 265 at §17 (once judicial review proceedings instituted local ombudsman having no jurisdiction); R v Lambeth LBC, ex p Crookes (1997) 29 HLR 28 (normally preferable to challenge procedural irregularity first by complaint of maladministration to the local ombudsman); R v Local Commissioner for Administration in North and North East England, ex p Liverpool City Council [2001] 1 All ER 462 at §§28, 45 (ombudsman entitled to consider complaint even though judicial review remedy available); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 663C-E (Parliamentary ombudsman not relevant where “allegations of illegality in the performance of statutory duties”). 36.3.28 Alternative remedy: judicial review or case stated? Westminster City Council v Owadally [2017] EWHC 1092 (Admin) [2017] 1 WLR 4350 at §19 (Gross LJ: “The tenor of the cases is that case stated is to be preferred where findings of fact are to be made” and “judicial review” should not “be used to circumvent the time limit for appeal by way of case stated”); R (E) v Birmingham Magistrates’ Court [2015] EWHC 688 (Admin) [2015] 1 WLR 4771 at §53 (Sir Brian Leveson P: “The value of proceeding by way of case stated is that the aggrieved party can identify the decisions of law with which issue is taken and, in 531

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the context of those decisions, both parties can ensure that all the facts are set out, along with the relevant findings on those facts made by the justices, so that all the material necessary for the decision of the High Court is available: the justices, with the advice of their clerk, then provide their input before signing the case”); R (B) v Carlisle Crown Court [2009] EWHC 3540 (Admin) at §18 (judicial review appropriate here where material irregularity in Crown Court’s procedure, notwithstanding availability of appeal by case stated); R (P) v Liverpool City Magistrates [2006] EWHC 887 (Admin) [2006] ELR 386 at §8 (judicial review granted although should have been case stated); R (Woolas) v Parliamentary Election Court [2010] EWHC 3169 (Admin) [2012] QB 1 at §61 (judicial review entertained exceptionally, despite failure to invite election court to state a case, there having been a “misunderstanding” as to whether a point of law was in issue); R (Sissen) v Newcastle Upon Tyne Crown Court [2004] EWHC 1905 (Admin) [2005] Env LR 349 at §1 (judicial review allowed to proceed although should have been case stated); R (Stace) v Milton Keynes Magistrates Court [2006] EWHC 1049 (Admin) at §§14-15 (judicial review not inapt where magistrates had given reasons); R v Harrow Crown Court, ex p Dave [1994] 1 WLR 98, 107E-F (discouraging judicial review where case stated available); R v Thanet Justices, ex p Dass [1996] COD 77 (judicial review rather than case stated understandable, to secure bail); R v Derwentside Magistrates’ Court, ex p Swift [1997] RTR 96 (case stated better, to allow stay of conviction pending appeal); R v Clerkenwell Metropolitan Stipendiary Magistrate, ex p DPP [1984] QB 821, 833A-836D (matter should have been by case stated, but judicial review treated as successful case stated with permission to lodge it out of time); R (Durham County Council) v North Durham Justices [2004] EWHC 1073 (Admin) at §30 (no power to state a case where no final determination); R (Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1800 (Admin) at §23 (case stated appropriate), §24 (“but the bar is discretionary”), §25 (court reluctant to defeat claim “unless prejudice is caused to a party, or there is some other good reason”). 36.3.29 Alternative remedy: judicial review or habeas corpus? Jane v Westminster Magistrates’ Court [2019] EWHC 394 (Admin) [2019] 4 WLR 95 at §§47-49 (habeas corpus inappropriate where court order providing lawful authority for detention, and claimant impugning that order on public law grounds); Rahmatullah v Secretary of State for Defence [2012] UKSC 48 [2013] 1 AC 614 at §71-74 (discussing habeas corpus and judicial review); R v Barking Havering and Brentwood Community Healthcare NHS Trust [1999] 1 FLR 106, 114F-117C (favouring judicial review in context of mental health detention, especially because of wider range of available remedies). 36.3.30 Complaints mechanism as alternative remedy. R (Rafique-Aldawery) v St George’s, University of London [2018] EWCA Civ 2520 [2019] PTSR 658 at §18 (student’s right to complain to the Office of the Independent Adjudicator “a suitable alternative remedy to judicial review”); R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin) [2020] 4 WLR 4 at §97 (complaint to Ofcom would have been “a practical and suitable remedy” even if ITV had been reviewable); R (Shi) v King’s College London [2008] EWHC 857 (Admin) at §45 (complaint to Independent Adjudicator for Higher Education a suitable alternative remedy to judicial review of university disciplinary decision); R (Humphries) v Secretary of State for Work and Pensions [2008] EWHC 1585 (Admin) at §§107-109 (claimant should have complained to independent case examiner); R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935 [2002] 1 WLR 803 (complaints mechanism was a suitable alternative remedy which should have been used); R v East Sussex County Council, ex p W [1998] 2 FLR 1082, 1092F-1093E, 1094A (statutory complaints procedure normally an appropriate alternative remedy); R v Lambeth LBC, ex p A (1998) 10 Admin LR 209, 228A (“the statutory complaints procedure … may provide a more suitable means of redress in a case where no question of law arises”); R v Sutton LBC, ex p Tucker (1998) 1 CCLR 251, 275B-G (neither statutory complaints procedure nor default powers as convenient, expeditious or effective as judicial review, where discrete point of law). 36.3.31 Employment tribunal as alternative remedy. R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §§123-126 (judicial review “the only practical option” in the 532

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context of the Coronavirus Job Retention Scheme, albeit that equal-pay claims “ordinarily brought in the Employment Tribunal of the County Court”); R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 [2015] AC 1344 at §24 (reasonable adjustments issues better suited to employment tribunal); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §99 (employment tribunal not “equally convenient and effective”); R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1, 25C-E (individual employee’s claim a matter for the employment tribunal); R v East Berkshire Health Authority, ex p Walsh [1985] QB 152, 169H-170B (“in at least the great majority of cases involving disputes about the dismissal of an employee by his employer, the most appropriate forum for their resolution is an industrial tribunal”). 36.3.32 Private law claim as alternative remedy. QM Developments (UK) Ltd v Warrington Borough Council [2020] EWHC 1511 (Admin) at §§23, 25 (civil proceedings an alternative remedy); R (Med Chambers Ltd) v Medco Registration Solutions Ltd [2017] EWHC 3258 (Admin) at §§26-27, 39 (contractual dispute resolution procedure a suitable alternative remedy); R v Ministry of Agriculture, Fisheries and Food, ex p Live Sheep Traders Ltd [1995] COD 297 (see transcript) (where judicial review sought to underpin damages claim for malicious prosecution, that action treated as a suitable alternative remedy); R (Mooyer) v Personal Investment Authority Ombudsman Bureau Ltd [2001] EWHC Admin 247 (instead of judicial review of PIA ombudsman’s decision as to whether insurance company had acted properly in stopping payments, alternative remedy of suing the company in the courts); Re S (Application for Judicial Review) [1998] 1 FLR 790, 796C (“there will occasionally be matters of public importance which might be capable of being litigated in the civil courts, but are predominantly issues of public law and would be better argued and adjudicated upon in the public arena”); R (Corporation of London) v Secretary of State for Environment, Food and Rural Affairs [2004] EWCA Civ 1765 [2005] 1 WLR 1286 at §27 (tort of disturbance not an alternative remedy in relation to prior question of vires of market activities consent) (HL is [2006] UKHL 30 [2006] 1 WLR 1721). 36.3.33 Alternative remedy: other. R (Archer) v HMRC [2019] EWCA Civ 1021 [2019] 1 WLR 6355 at §96 (statutory right to make representations seeking withdrawal of tax notice a “suitable alternative remedy”); R (Good Law Project Ltd) v Secretary of State for Exiting the European Union [2018] EWHC 719 (Admin) (Freedom of Information Act 2000 mechanism an alternative remedy to judicial review refusal to disclose studies on impact of Brexit); R (Smith) v North East Derbyshire Primary Care Trust [2006] EWHC 1338 (Admin) (claimant should have approached patients forum before seeking judicial review complaining of failure to consult the public); R (P and Q) v SSHD [2001] EWCA Civ 1151 [2001] 1 WLR 2002 at §§119-120 (Family Division proceedings more appropriate than Administrative Court where issue whether separation of incarcerated mother and her child unlawful as seriously compromising welfare of the child); R (Balbo B & C Auto Transporti Internationali) v SSHD [2001] EWHC 195 (Admin) [2001] 1 WLR 1556 (challenge to notice of liability under Immigration and Asylum Act 1999 s.32 should be by defence when sued for the applicable penalty, not judicial review). R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin) [2004] 4 PLR 95 at §59 (claimant “not seeking to obtain any unfair procedural advantage or to evade any procedural obstacle”).

36.4 Whether action/avenue curative of public law wrong. The claimant’s past or present pursuit, or future ability to pursue, another means of protection may be able to ‘cure’ or remedy a public law wrong, whether by virtue of a substantive decision or otherwise curative approach. 36.4.1 Procedural fairness applicable before decision is taken. {61.5.4} (right to be heard before decision taken). 36.4.2 Procedural fairness and rights of immediate/subsequent recourse. Neumans LLP v Law Society [2018] EWCA Civ 325 (intervention action) at §31 (Patten LJ: “the common law rules of procedural fairness are excluded by the statutory machinery in this case and … the solicitor’s rights and interests are adequately protected by being able to challenge the need 533

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for an intervention”), §47 (Singh LJ: “the requirements of procedural fairness are satisfied by looking at the entire package, including the opportunity to challenge the intervention on its merits before the High Court”); R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §85 (“sometimes … it may not be possible to give a person the opportunity to make representations before a decision is taken and that opportunity may have to be given afterwards”); BX v SSHD [2010] EWCA Civ 481 [2010] 1 WLR 2463 (urgent control order modification and rights to challenge); Wiseman v Borneman [1971] AC 297, 318F-G (decisions without a hearing but speedy annulment or amendment available); cf R (Wright) v Secretary of State for Health [2009] UKHL 3 [2009] AC 739 (provisional listing of unsuitable care worker needing to be preceded by right to make representations); {61.5.4} (right to be heard before decision taken). 36.4.3 Whether appeal curing procedural unfairness: curative appeal.90 R (Gossip) v NHS Surrey Downs Clinical Commissioning Group [2019] EWHC 3411 (Admin) [2020] PTSR 1239 at §§37-41 (Judge Allen, identifying a “curative appeal”, where “full hearing, including a careful and thorough examination of the evidence and submissions and concluding that the decision was sound”); R (DR) v Head Teacher of St George’s Catholic School [2002] EWCA Civ 1822 [2003] ELR 104 (in general, unfairness in the context of school exclusion decisions capable of being cured by means of statutory appeal); R v SSHD, ex p Sesay [1995] Imm AR 521, 522-523 (full immigration appeal can mean justice overall); R v Visitors to the Inns of Court, ex p Calder & Persaud [1994] QB 1, 59C (“an appeal to the visitors is or should be a full rehearing on the merits and as such it should cure any procedural defect or breach of natural justice on the part of the tribunal”); Modahl v British Athletic Federation [2001] EWCA Civ 1447 [2002] 1 WLR 1192 (procedure as a whole fair, including appeal); Century National Merchant Bank and Trust Co Ltd v Davies [1998] AC 628, 639C (“the statutory right of appeal to the Court of Appeal, exercising wide original jurisdiction, should be sufficient to achieve justice to the bank”). 36.4.4 Whether curative appeal: appeal not curing procedural unfairness. Calvin v Carr [1980] AC 574, 592C-593C (“no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be ‘cured’ through appeal proceedings”); Ridge v Baldwin [1964] AC 40, 79, 113, 125, 129 (procedural unfairness not cured); Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1598E-F (“A limited right of appeal on the merits affords no argument against the existence of a right to a precedent hearing”); R v Hereford Magistrates’ Court, ex p Rowlands [1998] QB 110 (where procedural unfairness leading to magistrates’ conviction, accused entitled to judicial review notwithstanding availability of appeal to Crown Court); R v Bedwellty Justices, ex p Williams [1997] AC 225, 235E-G, 236C (trial on indictment not an adequate alternative to judicial review for committal on inadmissible evidence); R (Haringey Consortium of Disabled People and Carers Association) v Haringey LBC (2002) 5 CCLR 422 at §49 (inadequate consultation not cured by appeal, because budgetary decision easier to overturn before firmly made); R (S) v Knowsley NHS Primary Care Trust [2006] EWHC 26 (Admin) at §71 (enforceable duty of fairness at first stage); R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 [2005] 1 WLR 2219 at §15 (availability of individual appeal to adjudicator not of itself an answer if Secretary of State’s asylum decision-making system inherently unfair). 36.4.5 Whether other safeguards preventing/curing unfairness. R v Secretary of State for Transport, ex p Gwent County Council [1988] QB 429, 435E-G (Secretary of State unable to cure defective local inquiry); R v Secretary of State for Education, ex p Cumbria County Council [1994] ELR 220, 228A-D (breach by school governors of legitimate expectation of consultation cured by Minister’s lawful approval of their decision); R v Swansea City

90The

equivalent paragraph in a previous edition was relied on in R (Kuteh) v Upper Tribunal [2012] EWHC 2196 (Admin) at §18 (HHJ Sycamore).

534

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Council, ex p Elitestone Ltd [1993] 2 PLR 65, 70H-71E (full committee’s confirmation “was a consideration afresh”, curing sub-committee’s procedural irregularity); R v Gwent County Council, ex p Bryant [1988] COD 19 (where legitimate expectation of consultation, later decision-maker could rectify earlier unfairness); R (Ramda) v SSHD [2002] EWHC 1278 (Admin) at §27 (availability of right of petition to the ECtHR not a right of appeal capable of curing national authorities’ failure to provide a fair trial); Re C (care proceedings: disclosure of local authority’s decision-making process) [2002] EWHC 1379 (Fam) [2002] FCR 673 at §240 (although unfairness and incompatibility with HRA:ECHR Art 6 in earlier stages of care proceedings, nevertheless fair trial overall); Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2004] UKPC 26 [2005] 1 AC 190 at §92 (availability of bail making good shortcomings of contempt hearing, for purposes of constitutional due process guarantee); cf R (G) v Governors of X School [2011] UKSC 30 [2012] 2 AC 167 (availability of subsequent decision of Independent Safeguarding Authority meaning governors’ decision not a determination of civil rights or obligations for Art 6 fairness duties to arise), §84 (question of “cure” of unfairness by ISA or right of appeal not therefore arising). 36.4.6 Defect cured by reconsideration/further act. Grant v Teacher’s Appeal Tribunal [2006] UKPC 59 (decision invalid for expiry of board’s terms of appointment but genuine consideration afresh fair and valid); R (McHale) v Secretary of State for Justice [2010] EWHC 3657 (Admin) at §23 (Parole Board having endorsed recall, so challenge to inadequately reasoned recall decision by Secretary of State inappropriate); R v Bath City Council, ex p Nankervis & Wilson [1994] COD 271 (decision to commence possession proceedings flawed, but subsequent decision to continue them lawful and proper); R v Newham LBC, ex p Begum (1996) 28 HLR 646 (errors cured when matter eventually properly reconsidered); R (Martin) v SSHD [2003] EWHC 1512 (Admin) (defective parole dossier remedied by later reconsideration); R v London Borough of Barnet, ex p B [1994] ELR 357, 371G-H (where reconsultation, ask “whether the ultimate decision is a fair one reached by fair methods”); {19.1.6} (importance of pre-action correspondence); {19.1.9} (letter of response). 36.4.7 Defect not cured by reconsideration/further act. Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §72 (no answer that “subsequent decision to grant or renew authority … properly taken”, since “predicated on a … lawful exercise of the power conferred on local management”); R (Carlton-Conway) v London Borough of Harrow [2002] EWCA Civ 927 [2002] 3 PLR 77 at §§26-27 (planning permission quashed despite committee’s subsequent resolutions approving planning officer’s actions and stating that they would have granted planning permission) at §27 (Pill LJ: “the [claimant] is entitled to a fresh consideration of the application by the planning committee. There is a real risk that in taking the [later] decisions … there was a potential motivation, as would be perceived by a fair-minded member of the public, that a wish to support their chief planning officer and to avoid the possibility of judicial review were factors which led to the relevant decisions”), applied in R (Patmore) v Brentwood Borough Council [2012] EWHC 1244 (Admin) at §§50, 51 (“a reconsideration pending judicial review proceedings is potentially tainted by a desire to avoid the consequences of a judicial review and should not preclude the grant of relief”); R (Sardar) v Watford Borough Council [2006] EWHC 1590 (Admin) (reconsultation not sufficing because not at formative stage and leaving residual feeling of unfairness); R (Banks) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 416 (Admin) at §107 (no evidence of a “fair, open-minded and comprehensive” reconsideration), §108 (not “a genuinely open-minded review”, instead “striving to defend an earlier decision in the context of adversarial litigation”); R v Legal Aid Board, ex p Donn & Co (a Firm) [1996] 3 All ER 1, 13b-14d (unfairness in not having all material not cured where committee not reconvened to meet together again as a committee); R v P Borough Council, ex p S [1999] Fam 188, 221G-222A (reconsideration insufficient because “the need for an open-minded approach by the local authority as the decision-maker is at an end and it was defending a final decision”); R (Carlton-Conway) v London Borough of Harrow [2002] EWCA Civ 927 [2002] 3 PLR 77 (where planning officer should not have dealt with matter under delegated powers, judicial review granted even though planning committee had since ratified the decision) at §27 (risk of “a potential motivation, as would be perceived by a fair-minded 535

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member of the public, that a wish to support their chief planning officer and to avoid the possibility of judicial review were factors that led to the relevant decisions”); R (Goodman) v London Borough of Lewisham [2003] EWCA Civ 140 [2003] Env LR 644 at §14 (as to “the decision undertaken … after these proceedings were launched. A strong note of caution in respect of such reconsiderations was sounded by this court in [Carlton-Conway]”); R v SSHD, ex p Turgut [2001] 1 All ER 719, 729g (need to “recognise at least the possibility that [the Secretary of State] has (even if unconsciously) tended to depreciate the evidence of risk and … tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind”). 36.4.8 Open-minded defendant willing to consider representations. R (S) v Education Action (Waltham Forest) [2006] EWHC 3144 (Admin) [2007] ELR 185 at §38 (no order needed where defendant having offered to reconsider); R v SSHD, ex p Pierson [1998] AC 539, 593E-F (defendant “willing to consider any further representations”, so order would not “serve any useful purpose”); R v Radio Authority, ex p Bull [1998] QB 294, 309B-F (“preferable that the whole issue should be reconsidered in the light of our judgments on the up to date information”); R v SSHD, ex p Venables [1998] AC 407, 437D (consideration of reports “after the decision has been reached is not the same as for them to be taken into account before the decision is reached”); R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §91 (willingness to reconsider an adverse decision as to welfare benefits for asylum-seekers “not a substitute for proper and fair primary decision making”); R (SP) v SSHD [2004] EWCA Civ 1750 at §58 (“once a decision is made, it is difficult to change it”, especially where would mean seeking to persuade that wrong factual basis); R v Radio Authority, ex p Guardian Media Group Plc [1995] 1 WLR 334, 347B-D (“the authority left open the position should new material emerge. … The position of the authority was not an unreasonable one”); {19.1.6} (importance of pre-action correspondence); {19.1.9} (letter of response). 36.4.9 Whether flaw curable by future steps. R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §94 (Singh LJ, rejecting an argument which “assumes that fairness is not required at an earlier decision-making stage simply because fairness is required at a later decision-making stage. I would not accept that as a matter of principle. In my view, in principle, a person is entitled to be treated fairly at all relevant decision-making stages”); Littlewood v Powys County Council [2015] EWHC 2125 (Admin) [2016] PTSR 45 (proposed procedure in breach of statutory duty to have an oral hearing), §43 (no answer that consideration afresh available on subsequent appeal before a tribunal); R (Brown) v Carlisle City Council [2010] EWCA Civ 523 [2011] Env LR 71 (quashing planning permission for breach of duties of environmental impact assessment) at §40 (Sullivan LJ: “Since the object of both the Directive and the Regulations is to ensure that any cumulative environmental effects are considered before any decision is taken as to whether [planning] permission should be granted, an assurance that they will be assessed at a later stage when a decision is taken as to whether further development should be permitted will not, save perhaps in very exceptional circumstances, be a sufficient justification for declining to quash a permission granted in breach [of the statutory duties]”); R (BB (Algeria)) v Special Immigration Appeals Commission [2011] EWHC 336 (Admin) [2012] QB 146 at §42 (doubting whether remittal necessary given that a further bail application could be made and the Court’s judgment applied); R (Neptune Wharf Ltd) v Secretary of State for Trade and Industry [2007] EWHC 1036 (Admin) [2007] 3 All ER 676 at §36 (no unfairness in lack of prewarning of CPO postponement, where open-minded receptiveness to subsequent representations); R (British Beer and Pub Association) v Canterbury City Council [2005] EWHC 1318 (Admin) [2006] LGR 596 at §106 (policy over-rigid but proposed addendum making remedy unnecessary); R (Broadbent) v Parole Board [2005] EWHC 1207 (Admin) (Parole Board error of approach but next parole hearing imminent); R v Commissioners of Customs and Excise, ex p Mortimer [1999] 1 WLR 17, 23G-H (lack of reasons but full appeal to magistrates); R v SSHD, ex p Pierson [1998] AC 539, 593E-F (refusal to intervene on basis of unfairness because Secretary of State willing to consider any further representations); R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §91 (fact that Secretary of State’s willing to reconsider “not a substitute for proper and fair primary decision making”); R v Oxford Regional Mental Health Review 536

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Tribunal, ex p SSHD [1988] AC 120, 128A-F (further hearing no cure since issues would not all remain open); R v Hereford Magistrates’ Court, ex p Rowlands [1998] QB 110 (where procedural unfairness leading to magistrates’ conviction defendant entitled to judicial review notwithstanding availability of appeal to Crown Court); R v Bedwellty Justices, ex p Williams [1997] AC 225, 235C-236D (committal on inadmissible evidence not cured by challengeability of admissibility at trial); R (S) v Knowsley NHS Primary Care Trust [2006] EWHC 26 (Admin) (appropriate for court to intervene to prevent unfairness, where live evidence and legal representation wrongly refused by NHS Trust, rather than leaving consequences for possible cure on appeal); R v Legal Aid Board, ex p Duncan [2000] COD 159 (see transcript at §561) (asking “whether, given the externally imposed time-frame, the scheme the Board devised is robust enough to accommodate the possibility of changes of tack once weaknesses in the scheme of the kind that are evident in this judgment are brought to its attention”). 36.4.10 Judicial review curing procedural deficiencies: Art 6. {59.5.9} (Article 6: judicial review/appeal (‘full jurisdiction’) suffices). 36.4.11 Judicial review curing procedural deficiencies: other. R (L) v SSHD [2003] EWCA Civ 25 [2003] 1 WLR 1230 at §29 (“a s.115 [Nationality and Immigration Act] decision [to certify a human rights claim as clearly unfounded] is one which the Court is as well placed as the Home Secretary to take, and we go on to review the evidence in that light. We consider that this cures, in the cases before us, the unfairness which we accept would otherwise have resulted from the use of s.115 before it was promulgated”). 36.4.12 Failure to take opportunity of cure. {31.3.9}-{31.3.10} (procedural fairness: failure to request/complain/act). 36.4.13 Purpose/effect of ‘nullity’. {44.3}

537

P37 Proportionality method. Proportionality scrutinises action for demonstrable rational connection to a legitimate aim, as the least intrusive effective response, striking a fair balance. 37.1 Proportionality method

37.1 Proportionality method. Proportionality is a structured approach to substantive judicial review. It is familiar to the Courts from: EU law judicial review; HRA judicial review; Equality Act judicial review; other statutory proportionality tests; Privy Council constitutional motion cases; and some common law cases (including substantive legitimate expectation cases, penalty cases and human rights cases). Its triple virtues, as a method, lie in: (a) the disciplined framework of questions which the Court asks; (b) the contextually calibrated variable intensity of review (always recognising a built-in latitude for primary decision-makers, policy-makers and law-makers); and (c) the onus placed on the state to justify its action. Proportionality can be directed in distinct ways, such as to the justification: for action; for its impact on rights or legitimate expectations; and for any relevant difference in treatment which it involves. 37.1.1 Proportionality. {P58} (proportionality, as a ground for judicial review); {58.1.7} (statutory proportionality); {54.2.6} (substantive legitimate expectation: proportionality test (justifying the impact on the legitimate expectations)); {58.1.2} (proportionality is not substitutionary review); R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322 at §47 (Lord Sumption: “Proportionality is a test for assessing the lawfulness of a decision-maker’s choice between some legal norm and a competing public interest. Baldly stated, the principle is that where the act of a public authority derogates from some legal standard in pursuit of a recognised but inconsistent public interest, the question arises whether the derogation is worth it”); {59.8.7} (justifying not the measure but the differential treatment: Lord Bingham in A); {54.2.6} (substantive legitimate expectation: proportionality test (justifying the impact on the legitimate expectations)). 37.1.2 Proportionality: a structured approach/methodical concept. R (Agyarko) v SSHD [2017] UKSC 11 [2017] 1 WLR 823 at §41 (Lord Reed, referring to “the structured approach to proportionality”); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §48 (Lord Reed, describing: “The structured approach to proportionality which has been adopted in the domestic law of the UK”); H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 [2013] 1 AC 338 at §30 (Lady Hale, describing the “structured approach” taken to an HRA:ECHR Art 8 proportionality case); R v Shayler [2002] UKHL 11 [2003] 1 AC 247 at §§76-77 (Lord Hope, discussing “the structure of analysis” and “carefully constructed set of criteria” of proportionality); London Regional Transport v Mayor of London 24 August 2001 unreported at §57 (Sedley LJ, referring to “the methodical concept of proportionality. Proportionality … replaces an elastic concept with which political scientists are more at home than lawyers with a structured inquiry: Does the measure meet a recognised and pressing social need? Does it negate the primary right or restrict it more than is necessary? Are the reasons given for it logical?”). 37.1.3 Proportionality and HRA:ECHR rights. Attorney General’s Reference No 2 of 2001 [2003] UKHL 68 [2004] 2 AC 72 at §120 (Lord Hobhouse: “a basic principle of human rights law is the principle of proportionality”); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §51 (Lord Slynn: “Reference to the Human Rights Act 1998 … makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied”); {P59} (HRA violation); {P9} (the HRA).

P37 Proportionality method

37.1.4 Proportionality: the four-step formulation (Bank Mellat). Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §74 (Lord Reed: “it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter”), §20 (Lord Sumption). 37.1.5 Proportionality: the four-step formulation (Quila). Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 at §265 (Lord Kerr, setting out the “four stages” from Lord Wilson’s judgment in Quila [2012] 1 AC 621 at §45, namely: “(a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; (d) do they strike a fair balance between the rights of the individual and the interests of the community?”); R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [2015] AC 657 at §310 (applying the Quila formulation); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §98 (applying the Quila formulation); R (Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 [2020] QB 1 at §122 (applying the Quila formulation). 37.1.6 Bank Mellat four-step formulation: applicable to HRA proportionality. R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 [2020] 2 All ER 813 at §59; McCann v State Hospitals Board for Scotland [2017] UKSC 31 [2017] 1 WLR 1455 at §60; In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §66; Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 at §104 (describing Bank Mellat as “a more detailed, overlapping schema” than in the Strasbourg case law); In re K [2020] EWCA Civ 190 at §§39, 44 (Bank Mellat applicable to forced-marriage protection orders and female genital mutilation protection orders, by reference to Art 3). 37.1.7 Bank Mellat four-step formulation: applicable to HRA:ECHR Art 14 at stage 4. {59.8.5} (Article 14: four stages); R (Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542 at §113 (applying the Bank Mellat formulation to the question of justification under Art 14); R (A) v Secretary of State for Health [2017] UKSC 41 [2017] 1 WLR 2492 at §32 (Art 14 stage (4) justification itself involving “four well-known questions” applicable to proportionality); R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 [2015] 1 WLR 3820 at §33. 37.1.8 Bank Mellat four-step formulation: applicable to Equality Act discrimination. R (Ward) v Hillingdon LBC [2019] EWCA Civ 692 [2019] PTSR 1738 at §91 (Bank Mellat questions applicable to justification of discrimination under the Equality Act 2010); R (Fisher) v Durham County Council [2020] EWHC 1277 (Admin) [2020] ACD 85 at §123, applying Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 15 [2015] AC 1399 at §28. 37.1.9 Proportionality: indirect discrimination (Equality Act 2010 s.19). R (Independent Workers Union of Great Britain) v Mayor of London [2020] EWCA Civ 1046 [2020] 4 WLR 112 at §37 (Simler LJ, endorsing these principles as to Equality Act 2020 s.19(2)(d) justification: (“(1) The burden of proof is on the respondent to establish justification. … (2) The classic test … [is that] the court … must be satisfied that the measures must ‘correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end’. … This involves the application of the proportionality principle. … (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it. … (4) It is for the [court] to weigh the reasonable needs of the [respondent] against the discriminatory effect of the … measure and to make its own assessment of whether the former outweigh the latter. There is no ‘range of reasonable response’ test in this context”); {55.2.4} (indirect discrimination: s.19). 539

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37.1.10 EU proportionality: formulations. Gubeladze v Secretary of State for Work and Pensions [2019] UKSC 31 [2019] AC 885 at §§58-59, applying R (Lumsdon) v Legal Services Board [2015] UKSC 41 [2016] AC 697 at §33 (“Proportionality as a general principle of EU law involves a consideration of … first, whether the measure in question is suitable or appropriate to achieve the objective pursued; and secondly, whether the measure is necessary to achieve that objective, or whether it could be attained by a less onerous method” and “a third question … whether the burden imposed by the measure is disproportionate to the benefits secured”); R (Seabrook Warehousing Ltd) v HMRC [2019] EWCA Civ 1357 at §74 (EU proportionality applicable where there is “an interference with protected interests”), §77 (method); R (EU Lotto Ltd) v Secretary of State for Digital Culture Media and Sport [2018] EWHC 3111 (Admin) [2019] 1 CMLR 41 (proportionality of measures interfering with EU Treaty rights) at §44 (whether a “restriction” upon freedom of services), §48 (measure “must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it”, citing Gebhard [1996] 1 CMLR 603); R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182 [2018] QB 149 at §174. 37.1.11 Proportionality: other formulations. R (F (A Child) v SSHD [2010] UKSC 17 [2011] 1 AC 331 at §41 (Lord Phillips, approaching the proportionality of statutory notification requirements with no provision for review, by identifying these “three questions: (i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) to what extent would that value be eroded if the notification requirements were made subject to review?”); Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 720D-E (Lord Hope, asking “(1) is the right which is in question an absolute right, or is it a right which is open to modification or restriction because it is not absolute? (2) if it is not absolute, does the modification or restriction which is contended for have a legitimate aim in the public interest? (3) if so, is there a reasonable relationship of proportionality between the means employed and the aim sought to be realised? The answer to the question whether the right is or is not absolute is to be found by examining the terms of the article in the light of the judgments of the court. The question whether a legitimate aim is being pursued enables account to be taken of the public interest in the rule of law. The principle of proportionality directs attention to the question whether a fair balance has been struck between the general interest of the community in the realisation of that aim and the protection of the fundamental rights of the individual”). 37.1.12 Step 1: sufficiently important objective. Gilham v Ministry of Justice [2019] UKSC 44 [2019] 1 WLR 5905 at §§36 (Lady Hale, explaining that exclusion of judges from whistleblowing protection Art 14-incompatible where “no legitimate aim has been put forward”); R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 [2020] AC 1 at §42 (Lord Kerr, explaining that no legitimate aim sufficiently important to justify the Art 14 interference, because: “To be legitimate … the aim must address the perpetration of the unequal treatment, or … be intrinsically linked to the discriminatory treatment. In this case it does not and is not”), §50 (“The legitimate aim must be connected to the justification for the discrimination”); CR Smith Glaziers (Dunfermline) Ltd v Customs and Excise Commissioners [2003] UKHL 7 [2003] 1 WLR 656 at §28 (formality as to provision of information serving no legitimate objective and so disproportionate); Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 at §18 (measure “fall[ing] at the first hurdle: the absence of a legitimate aim”). 37.1.13 Step 2: rational means–ends connection. A v SSHD [2004] UKHL 56 [2005] 2 AC 68 (detention of non-nationals without trial not rationally connected with security objective, since nationals also posing similar threat), §43 (Lord Bingham), §83 (Lord Nicholls), §133 (Lord Hope). 37.1.14 Step 3: no equally effective less restrictive/intrusive measure. Dulgheriu v Ealing LBC [2019] EWCA Civ 1490 [2020] 1 WLR 609 (HRA proportionality) at §82 540

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(“Justification … requires, as part of the structured proportionality review, that the limitation of the ECHR rights must be the least restrictive possible”); R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWCA Civ 649 (EU proportionality) at §79 (discussing the topic “less restrictive but equally effective measures”), §80 (“The main points arising from case law can be summarised as follows [citations omitted]: (i) The decision maker has a margin of appreciation or discretion which is highly fact and context specific. The evaluation will take account of all relevant circumstances including the conditions prevailing in the relevant market, the circumstances leading up to adoption of the challenged measure, and the reasons given why less restrictive measures were rejected. (ii) A measure will be disproportionate if ‘it is clear that the desired level of protection could be attained equally well by measures which were less restrictive’. (iii) The burden of proof lies with the decision maker. It is not however to be applied mechanically. There is no duty on the decision maker to prove positively that no other measure could be as effective. (iv) The decision maker is not required ‘… to consider every possible alternative, including those that were never suggested by consultees’. (v) The mere assertion that some other measure is equivalent and less intrusive is not sufficient; and equally the fact that some other measure can be envisaged is not enough. (vi) It is relevant that a measure is ‘general, simple, easily understood and readily managed and supervised’”), applied in R (Independent Workers Union of Great Britain) v Mayor of London [2020] EWCA Civ 1046 [2020] 4 WLR 112 at §61; R (EU Lotto Ltd) v Secretary of State for Digital Culture Media and Sport [2018] EWHC 3111 (Admin) [2019] 1 CMLR 41 at §104; R (K (A Child)) v SSHD [2018] EWHC 1834 (Admin) [2018] 1 WLR 6000 at §80 (not the least restrictive means); R (Miranda) v SSHD [2016] EWCA Civ 6 [2016] 1 WLR 1505 at §§87, 93 (alternative power “would have been less intrusive” but “would also have been less effective”); R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182 [2018] QB 149 at §236. 37.1.15 Step 4: fair balance/excessive burden. R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §84 (Leggatt LJ: “the question at step four is whether the impact of the right’s infringement is disproportionate to the likely benefit of the impugned measure. Another way of framing the same question is to ask whether a fair balance has been struck between the rights of the individual and the interests of the community”); JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §83. R (Mott) v Environment Agency [2018] UKSC 10 [2018] 1 WLR 1022 at §36 (restriction disproportionate in light of impact on the claimant); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §36 (“whether the insurance industry … is being called upon to bear a disproportionate and excessive burden”), §126 (“fair balance” includes ensuring that “the individual should not be required to bear an individual and excessive burden”); R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 at §52 (“the impairment of the individual’s rights … must not impose an excessive burden on the individual concerned”); {58.5.9} (proportionality: ‘fair balance’). 37.1.16 Variable intensity of review (with built-in latitude). AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §131 (Lord Reed: “The intensity of review involved in deciding whether the test of proportionality is met will depend on the particular circumstances”); R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §27 (Lord Steyn: “the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions” and “the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations”); R v Shayler [2002] UKHL 11 [2003] 1 AC 247 at §33 (Lord Bingham: “in any application for judicial review alleging [a] violation of a Convention right the court will now conduct a much more rigorous and intrusive review than was once thought to be permissible”), §61 (Lord Hope: “A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them”), §111 (Lord Hutton); {58.5.3} (variable latitude/variable intensity: proportionality 541

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as a flexi-principle); {59.8.15} (HRA:ECHR Art 14 and “manifestly without reasonable foundation”); Beghal v DPP [2015] UKSC 49 [2016] AC 88 at §76 (Lord Neuberger and Lord Dyson: “It is important to be realistic as well as principled when assessing the proportionality of any means adopted”; referring to “the need for reality in relation to proportionality” and it being “appropriate to consider … the practical realities”). 37.1.17 Variable intensity of review (with built-in latitude): EU law proportionality. R (Lumsdon) v Legal Services Board [2015] UKSC 41 [2016] AC 697 at §34 (“Apart from the questions which need to be addressed, the other critical aspect of the principle of proportionality is the intensity with which it is applied”); R (Seabrook Warehousing Ltd) v HMRC [2019] EWCA Civ 1357 at §85 (“strict standard of review” involving “the less restrictive alternative test” is what “normally falls to be applied when the national measures in question derogate from fundamental freedoms, whereas the much less stringent test of ‘manifest disproportionality’ usually applies when a Member State is implementing an EU measure such as a Directive”), §§119, 126 (applying “the stricter approach” where EU principle of non-discrimination applicable); R (EU Lotto Ltd) v Secretary of State for Digital Culture Media and Sport [2018] EWHC 3111 (Admin) [2019] 1 CMLR 41 at §§53-56 (rejecting “manifestly inappropriateness” test in context of restriction with EU Treaty right); R (Lumsdon) v Legal Services Board [2015] UKSC 41 [2016] AC 697 at §73 (“manifestly disproportionate” test may be relevant to proportionality of national measures implementing EU measures), §§78, 103 (but “manifestly inappropriate” not applicable to proportionality of national measures restricting a fundamental freedom). 37.1.18 Variable intensity of review: stringent scrutiny and certain types of discrimination. R (Independent Workers Union of Great Britain) v Mayor of London [2020] EWCA Civ 1046 [2020] 4 WLR 112 at §§71, 93 (“stringent scrutiny” approach given impact on individuals from black and minority ethnic communities), applying R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 [2006] 1 WLR 3213 at §161 (Mummery LJ). 37.1.19 Proportionality and bright-line rules/pre-defined categories. R (P) v Secretary of State for Justice [2019] UKSC 3 [2020] AC 185 at §48 (legitimate legislative use of “pre-defined categories”); R (TP) v Secretary of State for Work and Pensions [2019] EWHC 1127 (Admin) [2019] PTSR 2123 at §§57, 60 (bright-line rule not justified) (upheld at [2020] EWCA Civ 37); Worley v Secretary of State for Work and Pensions [2019] EWCA Civ 15 [2019] PTSR 1667 at §43 (“It is legitimate for policies to use ‘bright-lines’”); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §§122-123 (“‘bright line’ so that the policy is easy to understand and administer” not a “sufficient justification for the discrimination involved”); AB v HM Advocate [2017] UKSC 25 [2017] SLT 401 at §§41, 44 (disproportionate bright-line rule); In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §62 (justification for bright-line rule rejected); R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 [2015] 1 WLR 3820 at §§37, 41 (unjustified bright-line rule); In re G (Adoption: Unmarried Couple) [2008] UKHL 38 [2009] AC 173 (unjustified bright-line rule). 37.1.20 Proportionality: onus on the defendant/state. R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 [2020] AC 1 at §20 (“The burden of proving justification is on the respondent”), §39 (“it is for the Government and Parliament to show that it was necessary”); R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621 at §44 (Lord Wilson: “The burden is upon the Secretary of State to establish that the interference with the rights of the claimants … was justified”); R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380 at §78 (where interference with HRA:ECHR right, “the burden then falls on the Home Secretary to establish that the interference is justified and, in particular, that it is proportionate”); OA v Secretary of State for Education [2020] EWHC 276 (Admin) at §42 (HRA:ECHR Art 14 justification onus on the defendant); R (JP) v SSHD [2019] EWHC 3346 (Admin) [2020] 1 WLR 918 at §152 (“The burden of proving justification rests on the Secretary of State”); R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21 [2019] 1 WLR 3289 at §66 (in an Art 14 welfare benefits case, onus on the state but complainant having to show manifestly without reasonable foundation, so court required to “proactively examine whether 542

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the foundation is reasonable”); R (Coll) v Secretary of State for Justice [2017] UKSC 40 [2017] 1 WLR 2093 at §§42, 44-45 (Secretary of State not having “yet” discharged onus of justification); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §32 (speaking in Art 8 appeals context, “questions of onus are unlikely to be important where the relevant facts have been established”); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §39 (burden on the Ministers), §86 (failure to establish that segregation proportionate); R v Secretary of State for Employment, ex p Seymour-Smith [1999] 2 AC 554 (CJEU) at §77 (“it is for the member state, as the author of the allegedly discriminatory rule, to show that the said rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination based on sex, and that it could reasonably consider that the means chosen were suitable for attaining that aim”), applied in R v Secretary of State for Employment, ex p Seymour-Smith (No 2) [2000] 1 WLR 435, 450C-452E and in R (E) v Governing Body of JFS [2009] UKSC 15 [2010] 2 AC 728 at §§205, 214. 37.1.21 Whether proportionality requires evidence. R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWCA Civ 649 (applying EU law proportionality) at §94 (“normally the most up to date evidence should be used; the intensity of the scrutiny applied to the evidence is highly context specific; there are no fixed rules as to the types of evidence required; the courts generally [apply] a closer scrutiny to justification advanced … after the event (although it is proper … to adduce new evidence during court proceedings that was not available to the decision maker); in some cases a measure could properly be justified on limited evidence; and, it is important to avoid an ‘overly schematic approach’”); R (Simonis) v Arts Council England [2020] EWCA Civ 374 at §100 (“there is no obligation in every case imposed upon the state to adduce evidence to justify a restriction. It will always depend upon the facts and the context. It follows that in some cases recourse to common sense, logic, or intuition might suffice all of which can operate without the need for evidence”); Re A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) [2017] EWCA Civ 2164 [2018] 4 WLR 60 at §109 (“In assessing whether an apparently discriminatory measure or decision is objectively justified it will be important to scrutinise the evidence that it proffered by way of justification”); 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”); In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §62 (justification for bright-line rule rejected where defendant “not able to produce tangible evidence that there would be significant problems in administering the scheme if the [impugned] requirement was abandoned” and where “vague suggestions as to … workability … were not supported by evidence”); R (Lumsdon) v Legal Services Board [2015] UKSC 41 [2016] AC 697 at §56 (“justifications based on moral or political considerations may not be capable of being established by evidence. The same may be true of justifications based on intuitive common sense. An economic or social justification, on the other hand, may well be expected to be supported by evidence”); R (TP) v Secretary of State for Work and Pensions [2019] EWHC 1127 (Admin) [2019] PTSR 2123 at §64 (“The requirement of justification brings with it the burden of explanation”) (CA is [2020] EWCA Civ 37); Beghal v DPP [2015] UKSC 49 [2016] AC 88 at §76 (Lord Neuberger and Lord Dyson: “it is not correct to say that in every case where the issue of necessity or proportionality arises the executive must produce positive evidence to show that the means which it has adopted to meet the objective in question is no more than is required. … It is important to be realistic as well as principled”). 37.1.22 Proportionality and scrutiny of evidence/reasoning. {58.4}

543

P38 Standing. The claimant needs a ‘sufficient interest’; and to be a ‘victim’ to invoke HRA s.6. 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

38.1 The standing requirement: sufficient interest.91 As provided by Parliament in judicial review’s statutory underpinning, the claimant for judicial review must have a ‘sufficient interest’ in the subject-matter. 38.1.1 The standing rule. Senior Courts Act 1981 s.31(3) (“No application for judicial review shall be made unless the [permission] of the High Court has been obtained in accordance with rules of court; and the court shall not grant [permission] to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates”); HRA s.7 (the victim test); {38.4} (standing and HRA s.6: the ‘victim’ test). 38.1.2 Sufficient interest: a deliberately broad test. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 642B-E (Lord Diplock: “the draftsman … avoided using the expression ‘a person aggrieved’, although it lay ready to his hand. He chose instead … ordinary English words which, on the face of them, leave the court an unfettered discretion to decide what in its own good judgment it considers to be ‘a sufficient interest’ on the part of [a claimant] in the particular circumstances of the case before it. For my part I would not strain to give them any narrower meaning”); Cook v Southend Borough Council [1990] 2 QB 1, 8B-C (Woolf LJ, referring to the test as “deliberately substituted” for the narrower test of “person aggrieved, which was the test which applied to applications for the prerogative orders prior to the introduction of judicial review in 1977”); Walton v Scottish Ministers [2012] UKSC 44 [2013] PTSR 51 at §§83-88 (Lord Reed, discussing the ‘person aggrieved’ test); {2.1.6} (common law origins, statutory underpinning). 38.1.3 Sufficient interest: a unified test for the various remedies. R v Somerset County Council, ex p Dixon [1998] Env LR 111, 120 (Sedley J: “The time is past when doctrinal niceties as opposed to substantive merits could distinguish locus for prohibition from locus for mandamus or certiorari”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 638C-F (describing the 1977 reforms as serving “to sweep away these procedural differences including, in particular, differences as to locus standi”); {2.1.14} (the 1977 procedural reforms). 38.1.4 Standing: a jurisdictional precondition, not conferred by consent. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 660B (Lord Roskill, referring to claimants having to satisfy standing as a “condition precedent to their obtaining the [remedy] which they seek”); R v Secretary of State for Social Services, ex p Child Poverty Action Group [1990] 2 QB 540, 556E-F (Woolf LJ: “the question of locus standi goes to jurisdiction of the court. … The parties are not entitled to confer jurisdiction, which the court does not have, on the court by consent”), applied in R v Brent LBC, ex p Connery [1990] 2 All ER 353, 354e and in R v Secretary of State for the Environment, ex p Friends of the Earth Ltd [1994] 2 CMLR 760 (Schiemann J), 762-763;

91The

equivalent paragraph in a previous edition was relied on in W v W [2009] EWHC 3288 (Fam) [2010] 1 FLR at §17 (Baker J).

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Administrative Court: Judicial Review Guide (2020 edition) at §5.3.2.3 (citing CPAG and R (Wylde) v Waverley Borough Council [2017] EWHC 466 (Admin) at §19 et seq). 38.1.5 Standing: a question of judgment and appreciation. R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §111 (“The test for standing is discretionary and not hard-edged”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 659A (Lord Roskill, treating “sufficient interest” as “a mixed question of fact and law; a question of fact and degree … having regard to all the circumstances of the case”), 631C (not a “pure discretion. The matter is one for decision, a mixed decision of fact and law, which the court must decide on legal principles”); R v Secretary of State for the Environment, ex p Rose Theatre Trust Co [1990] 1 QB 504, 520C (“not purely a matter of discretion”); R v North West Leicestershire District Council, ex p Moses 14 September 1999 unreported (Scott Baker J) (standing not a discretion but a matter of judgment). 38.1.6 Sufficient interest in the remedy, or the particular ground? R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370 [2002] 4 PLR 66 at §§132-134 (Jonathan Parker LJ: “there is an important distinction to be drawn between, on the one hand, a person who brings proceedings having no real or genuine interest in obtaining the relief sought, and on the other hand a person who, whilst legitimately and perhaps passionately interested in obtaining the relief sought, relies as grounds for seeking that relief on matters in which he has no personal interest. I cannot see how it can be just to debar a litigant who has a real and genuine interest in obtaining the relief which he seeks from relying, in support of his claim for that relief, on grounds (which may be good grounds) in which he has no personal interest. It seems to me that a litigant who has a real and genuine interest in challenging an administrative decision must be entitled to present his challenge on all available grounds”), applied in R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) at §209 (in the case of a “public interest litigant”); cf R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011 [2010] LGR 1 at §§73-74, 78 (no standing to rely on procurement ground). 38.1.7 Legal incapacity/unincorporated associations. Administrative Court: Judicial Review Guide (2020 edition) at §2.2.1.3 (“The Court may allow unincorporated associations (which do not have legal personality) to bring judicial review proceedings in their own name. But it is sensible, and the Court may require, that proceedings are brought in the name of one or more individuals, such as an officeholder or member of the association, or by a private limited company formed by individuals. Costs orders may be made against the party or parties named as claimant(s)”); Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin) [2020] 1 WLR 2355 at §29 (Lieven J: “an unincorporated association does have capacity to bring both a judicial review and a statutory challenge … the critical question in judicial review or statutory challenge is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest … the legal capacity of the claimant is not a critical component”); R (Electronic Collar Manufacturers Association) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin) [2020] ACD 4 (first claimant an unincorporated association); R (Residents Local to Elmbank) v Woking Borough Council [2019] EWHC 892 (Admin) at §2 (claimant an unincorporated association represented by its officers in the proceedings); R (Rehman) v Wakefield City Council [2019] EWCA Civ 2166 [2020] PTSR 765 at §23 (association represented by chairman as named claimant); R (Davies) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC 2762 (Admin) (judicial review struck out as an abuse of process, where claimant having no authority to advance the interests of a moribund company said in the proceedings to have been unlawfully deprived of its river navigation functions); R v Ministry of Agriculture Fisheries and Food, ex p British Pig Industry Support Group [2000] EuLR 724 at §108 (no “overriding requirement for [a claimant] for judicial review to have legal personality, but it is important in such a case that adequate provision should be made for the protection of the [defendant] in costs”); R v London Borough of Tower Hamlets, ex p Tower Hamlets Combined Traders Association 545

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[1994] COD 325; R v Traffic Commissioner for the North Western Traffic Area, ex p BRAKE [1996] COD 248; cf R v Darlington Borough Council, ex p Association of Darlington Taxi Owners [1994] COD 424 (treating unincorporated association as lacking legal capacity to bring judicial review claim); {18.1.27} (claimant incorporating for the litigation/costs-protection); {38.2.20} (standing: no enhanced interest merely by incorporating/amalgamating); {21.5.24} (order for security for costs). 38.1.8 ‘Self-challenges’/‘own-initiative’ claims. {2.1.32}

38.2 The approach to sufficient interest.92 The approach to the Court’s evaluative judgment of ‘sufficient interest’ is liberal, but not all-encompassing. Financial interest in the subject-matter is sufficient, but not necessary. One question is whether the claimant is a ‘busybody’, and permission stands to be refused on that basis. It must be remembered that judicial review is a constitutional guarantee of protection under the rule of law, and the Courts secure the scope of judicial review required by the rule of law. It can be contrary to the rule of law and the public interest for there to be a ‘lacuna’: where ‘public law wrongs’ by public authorities would be left unsupervisable by the Courts because no person has standing. One question is whether there is an obviously better-placed challenger, including one who has chosen not to complain. 38.2.1 Standing at the permission/substantive stages. {38.3} 38.2.2 Liberal approach to standing: technical restrictions relaxed. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 641C-D (Lord Diplock, describing removal of “technical restrictions on locus standi” representing “progress towards a comprehensive system of administrative law that I regard as having been the greatest achievement of the English courts in my judicial lifetime”); R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWCA Civ 1546 [2004] 1 WLR 1761 at §21 (Dyson LJ: “In recent years, there has unquestionably been a considerable liberalisation of what is required to found a sufficiency of interest for the purposes of standing”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 395F (Rose LJ, describing the “increasingly liberal approach to standing on the part of the courts during the last 12 years”). 38.2.3 Judicial review as a constitutional guarantee, under the rule of law. {P1} (a constitutional guarantee); {1.2} (judicial review and the rule of law). 38.2.4 Cardinal principle: Courts secure the scope of judicial review required by the rule of law. {1.3.5} 38.2.5 Standing: avoiding Lord Diplock’s rule of law ‘lacuna’. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 644E-G (Lord Diplock, describing it as a “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”); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §170 (Lord Reed, referring to “situations, such as where the excess or misuse of power affects the public generally, [where] insistence upon a particular interest could prevent the matter being before the court, and that in turn might disable the court from performing its function to protect the rule of law”; although “the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court”); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §111 (because of victim claimants, “to deny the Mayor

92The

equivalent paragraph in a previous edition was relied on in Kwok Cheuk Kin v STH [2016] HKCFI 2 at §80 (Hon Zervos J).

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standing would not disable the court from performing its function to protect the rule of law”), §114 (had victim standing been challenged “there is considerable force in the contention that … that would have disabled this court from performing its function … to protect the rule of law”); R (Gibraltar Betting & Gaming Association Ltd) v Secretary of State for Culture, Media and Sport [2014] EWHC 3236 (Admin) [2015] 1 CMLR 28 at §205 (Green J: “the Court has already granted permission to the claimant to bring this claim upon the express basis that it will be able to argue its substantive case that the new regime is unlawful. … Given that the claim involved a challenge to an Act of Parliament, to have … rejected the claim upon the basis of standing would have been … most unsatisfactory from the perspective of the due and good administration of justice”); R v SSHD, ex p Bulger [2001] EWHC Admin 119 at §20 (“the threshold for standing in judicial review has generally been set by the courts at a low level. This … is because of the importance in public law that someone should be able to call decision makers to account, lest the rule of law break down and private rights be denied by public bodies”); R v General Council of the Bar, ex p Percival [1991] 1 QB 212, 231C (“Unless the disappointed complainant is regarded as having sufficient locus standi to challenge the decision it is difficult to see who else could be expected to do it”); R v North Thames Regional Health Authority and Chelsea & Westminster NHS Trust, ex p L [1996] Med LR 385 (Sedley J: “It is legitimate to ask who, if not B, would have a sufficient interest to seek the correction of a misunderstanding of its own powers by the employing body in such a situation, and whether such a vacuum could be in the public interest”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 393H, 395G-H, 402G; Rape Crisis Centre Company v SSHD The Times 18 July 2000 (fallacy to suppose that public interest in ministers acting lawfully confers a right on every member of the public to bring a challenge); 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”); {1.3.5} (cardinal principle: Courts secure the scope of judicial review required by the rule of law). 38.2.6 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; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. If an arguable case of such misuse can be made out on an application for [permission], the court’s only concern is to ensure that it is not being done for an ill motive. It is if, on a substantive hearing, the abuse of power is made out that everything relevant to the [claimant]’s standing will be weighed up, whether with regard to the grant or simply to the form of [remedy]”); {1.2.8}. 38.2.7 Standing: the foundational concept of interests. AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §170 (Lord Reed, explaining that the sufficiency of interest concept in public law “cannot be based upon the concept of rights, and must instead be based upon the concept of interests”). 38.2.8 Standing: liberal access for individuals. R (McCourt) v Parole Board [2020] EWHC 2320 (Admin) at §54 (mother of murder victim having standing to challenge parole board decision directing murderer’s release); R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §137 (Bean LJ and Cavanagh J: “This is not a case of a frivolous challenge by a person or persons with no real interest in the subject matter of the claim. … It would not be appropriate for the Court to take a strict line in relation to standing in this case”); R v Legal Aid Board, ex p Bateman [1992] 1 WLR 711, 718B (Nolan LJ, referring to “the desirability of the courts recognising in appropriate cases the right of responsible citizens to enter the lists for the benefit of the public, or of a section of the public, of which they themselves are members”); R v Secretary of State for Foreign & Commonwealth Affairs, ex p Rees-Mogg [1994] QB 552 (individual challenging ratification of Maastricht Treaty); 547

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R v HM Treasury, ex p Smedley [1985] QB 657 (individual challenging draft Order in Council relating to EU budget); Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 176C (“a notable public service in directing judicial attention to [these] problems”); R v Somerset County Council, ex p Dixon [1998] Env LR 111, 117 (“there will be, in public life, a certain number of cases of apparent abuse of power in which any individual, simply as a citizen, has a sufficient interest to bring the matter before the court”); R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) at §200 (“deep and knowledgeable interest in historic railway buildings”; not a troublemaker or busybody); R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 [2006] 1 WLR 1260 at §§37-39 (situation where vexatious litigants setting themselves up “as a public champion” where only “a tenuous connection with the subject matter”). 38.2.9 Affected individual having standing from the time affected by measure/instrument. R (Badmus) v SSHD [2020] EWCA Civ 657 at §77 (Sir Terence Etherton MR, Hickinbottom, Simler LJJ, explaining that, for the purposes of delay: “the grounds for making a judicial review claim first arise when a person is affected … by the application of the challenged policy or practice”), §78 (reasoning that: “it was only when the claimant first became affected by the measure or policy that he or she had sufficient status or standing to bring the judicial review claim. So far as the claimant was concerned, the grounds to make the claim cannot have arisen before then. … [T]here is a general equivalence between standing and a claimant being affected by the challenged legislation, policy or practice”): {26.2.12} (challenge to an impugned measure/instrument, when first applied to claimant). 38.2.10 Standing: liberal access for groups. R (AIRE Centre) v SSHD [2018] EWCA Civ 2837 [2019] 1 WLR 3002 (charity’s judicial review challenge of practice of immigration questioning); R (Just for Kids Law) v SSHD [2019] EWHC 1772 (Admin) [2019] 4 WLR 97 (NGO challenge to covert intelligence scheme); Fishermen and Friends of the Sea v Minister of Planning, Housing and the Environment [2017] UKPC 37 at §7 (“rightly no challenge to [the] standing” of “a non-profit organisation, concerned with the protection of the environment” and “an impressive record … of giving advice, guidance and assistance to the national community”); R v Her Majesty’s Inspectorate of Pollution, ex p Greenpeace Ltd [1994] 4 All ER 329, 350c-j (standing test met by “an entirely responsible and respected body with a genuine concern for the environment … who, with its particular experience in environmental matters, its access to experts in the relevant realms of science and technology (not to mention the law), is able to mount a carefully selected, focused, relevant and well-argued challenge”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386 (WDM successfully challenging aid to Pergau Dam), 395C-396B; R v Minister of Agriculture Fisheries and Food, ex p Protesters Animal Information Network Ltd 20 December 1996 unreported (responsible body with serious interest in the subject matter); R (Quintavalle) v Human Fertilisation and Embryology Authority [2002] EWHC 2785 (Admin) [2003] 2 All ER 105 at §5 (judicial review proceedings brought on behalf of group concerned with ethical issues in assisted reproduction) (HL is [2005] UKHL 28 [2005] 2 AC 561); R v Hammersmith & Fulham LBC, ex p People Before Profit Ltd (1982) 80 LGR 322; R v SSHD, ex p Immigration Law Practitioners Association [1997] Imm AR 189; R v Sefton Metropolitan Borough Council, ex p Help The Aged [1997] 4 All ER 532; R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 [2005] 1 WLR 2219 at §5 (“This application is thus a good example of how a body such as the RLC may not only have standing but be best placed to bring an important question such as the present one before the court”); cf R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin) at §§48, 62 (no standing in the circumstances for foreign NGO in impermissible foreign relations context). 38.2.11 Procedural flexibility: standing and claimant identity/substitution. Wheeler v Leicester City Council [1985] AC 1054, 1073F (“In reality it is an appeal by the club and I shall so treat it”); R v Life Assurance and Unit Trust Regulatory Organisation, ex p Ross [1993] QB 17, 45B (overlooking as a “technicality” that “the proper [claimant] was probably Winchester rather than the [claimant] personally”); R v Secretary of State 548

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for Education & Science, ex p Parveen Malik [1994] ELR 121, 122F (ordering that Mrs Malik “be substituted for the original [claimant], Mr Amin, because his application was beset by difficulties in connection with legal aid”); R v North West Leicestershire District Council, ex p Moses 14 September 1999 unreported (where claimant had moved house away from airport development complained of, CA commenting that: “had the challenge from every other standpoint been soundly based, it would be unfortunate to have to reject it – rather, say, than substitute for Ms Moses another [claimant] who, as a resident of Kegworth, was equally concerned about the airport’s extension – merely because of Ms Moses’ move”); {22.1.28} (substitution of claimant). 38.2.12 Standing and financial interest. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 646B-C (“a direct financial or legal interest is not … required”), mirrored in R v Secretary of State for the Environment, ex p Rose Theatre Trust Co [1990] 1 QB 504, 520D; R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §§45-46 (“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”), applied in Land Securities Plc v Fladgate Fielder [2009] EWCA Civ 1402 [2010] Ch 467 at §73; R v Canterbury City Council, ex p Springimage Ltd [1993] 3 PLR 58, 61H (sufficient that person’s commercial interest realistically affected by decision); Standard Commercial Property Securities Ltd v Glasgow City Council [2006] UKHL 50 (judicial review by rival developer); R v Ogwr Borough Council, ex p Carter Commercial Developments Ltd [1989] 2 PLR 54, 58H (“competing developers are entitled to attack each other’s grants [of planning permission] provided the legal basis for such attack exists”); R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763, 774B (no need for “a pure and burning passion to see that public law is rightly administered”); R v Lord Chancellor, ex p Child Poverty Action Group [1999] 1 WLR 347, 353H (many judicial review cases involve claimant “seeking to protect some private interest of his or her own”). 38.2.13 Standing and the public interest. {38.2.5} (standing: avoiding Lord Diplock’s rule of law ‘lacuna’); {2.1.27} (‘public interest litigation’); Land Securities Plc v Fladgate Fielder [2009] EWCA Civ 1402 [2010] Ch 467 at §111 (access to the judicial review Court “an important right of every citizen affected by the decision or act under challenge”); R v Lord Chancellor, ex p Child Poverty Action Group [1999] 1 WLR 347, 353G (public interest challenge one 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 v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415, 425 (Laws J: “a public interest [claimant] … has to act as a friend of the court; precisely because he has no rights of his own, his only locus is to assert the public interest. Litigation of this kind is now an accepted and greatly valued dimension of the judicial review jurisdiction, but it has to be controlled with particular strictness. It is a field especially open to potential abuse. … Strict judicial controls, particularly as regards time, will foster not hinder the development of such litigation in the future”); R v Secretary of State for Trade and Industry, ex p Greenpeace [2000] Env LR 221, 259 (“I cannot envisage many cases where, on the same facts, a public interest [claimant] would be refused permission to apply because of delay but a private [claimant] would be permitted to proceed”); R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) at §203 (claimant a public interest litigant); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 365E-H (Lord Diplock, explaining that where a statutory instrument is held to be unlawful: “Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare”); Administrative Court: Judicial Review Guide (2020 edition) at §5.3.2.4 (“In some cases claimants may be considered to have sufficient standing if the claim is brought in the public interest”). 549

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38.2.14 Public interest, notwithstanding private interest. R (McMorn) v Natural England [2015] EWHC 3297 (Admin) [2016] PTSR 750 at §246 (“significant public benefit in decisions on national environmental law being lawful, and therefore in their lawfulness being tested readily by individuals”, including where the claimant’s “livelihood or property may also be at stake”). 38.2.15 Standing test must mean something. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 645H (Lord Fraser: “while the standard of sufficiency has been relaxed in recent years, the need to have an interest has remained and the fact that [the test] requires a sufficient interest undoubtedly shows that not every [claimant] is entitled to judicial review as of right”); R v SSHD, ex p Ruddock [1987] 1 WLR 1482, 1485A-C; R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011 [2010] LGR 1 at §72 (importance of the issue not sufficient, since this would “drive a coach and horses through the requirement for standing”).;R v Pembrokeshire County Council, ex p Coker [1999] 4 All ER 1007, 1014c-d (claimants lacking standing to challenge decision to lease council land on other than best consideration, since not ratepayers). 38.2.16 Standing and striking a balance.93 {31.1.5} (context and standing); R v Legal Aid Board, ex p Bateman [1992] 1 WLR 711, 721D (“though the problem of definition is elusive common sense should enable one to identify a sufficient interest when it presents itself, like the horse which is difficult to define but not difficult to recognise when one sees it”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 654D (asking whether claimant having “a genuine grievance reasonably asserted”); R v Manchester City Council, ex p Baragrove Properties Ltd (1992) 4 Admin LR 171, 184D (asking whether claimant having “a reasonable concern in the matter to which this application relates”); cf In re S (Hospital Patient: Court’s Jurisdiction) [1996] Fam 1, 18G (“where a serious justiciable issue is brought before the court by a party with a genuine and legitimate interest in obtaining a decision against an adverse party the court will not impose nice tests to determine the precise legal standing of that claimant”). 38.2.17 Standing at the permission stage: the busybody test. {38.3.3} (standing as a procedural bar at the permission stage: ‘busybodies’). 38.2.18 Standing: claimant’s improper purpose. R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWCA Civ 1546 [2004] 1 WLR 1761 at §23 (Dyson LJ: “if a claimant seeks to challenge a decision in which he has no private law interest, it is difficult to conceive of circumstances in which the court will accord him standing, even where there is a public interest in testing the lawfulness of the decision, if the claimant is acting out of ill-will or for some other improper purpose”), applied in Land Securities Plc v Fladgate Fielder [2009] EWCA Civ 1402 [2010] Ch 467 at §§70, 93 (improper purpose dealt with at permission stage by reference to standing); {31.3.4} (unclean hands etc). 38.2.19 Standing: third parties and procurement decisions. R (Wylde) v Waverley Borough Council [2017] EWHC 466 (Admin) [2017] PTSR 1245 at §44 (claimant not having standing to challenge public contract variation without procurement process, because “these claimants are unable to demonstrate any direct impact upon them which would arise from the conduct of a competitive tendering exercise”); R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011 [2010] LGR 1 (no standing to challenge procurement breach); R (UNISON) v NHS Wiltshire Primary Care Trust [2012] EWHC 624 (Admin) [2012] ACD 84 at §13 (union not having standing to challenge procurement decisions under Public Contract Regulations, where “economic operators” having a statutory civil remedy, because not “affected in some identifiable way” by decision to outsource family health services).

93The

equivalent paragraphs in a previous edition were relied on in Kwok Cheuk Kin v STH [2016] HKCFI 2 at §81 (Hon Zervos J).

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38.2.20 Standing: no enhanced interest merely by incorporating/amalgamating. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 633D (Lord Wilberforce: “an aggregate of individuals each of whom has no interest cannot of itself have an interest”), 646G; R v Secretary of State for the Environment, ex p Rose Theatre Trust Co [1990] 1 QB 504, 521F (conceded that an “agglomeration of individuals [could not] … have a standing which any one individual lacked”), 520E (“The fact that some thousands of people join together and assert that they have an interest does not create an interest if the individuals did not have an interest”). 38.2.21 Standing: whether obvious better-placed challenger.94 R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 395H (referring to “the likely absence of any other responsible challenger”); R v General Council of the Bar, ex p Percival [1991] 1 QB 212, 231C (“Unless the disappointed complainant is regarded as having sufficient locus standi to challenge the decision it is difficult to see who else could be expected to do it”); R v North Thames Regional Health Authority and Chelsea & Westminster NHS Trust, ex p L [1996] Med LR 385 (Sedley J: “It is legitimate to ask who, if not B, would have a sufficient interest”); R (SM and Evans) v Secretary of State for Defence [2012] EWHC 1464 (Admin) (permission granted to peace campaigner only on grounds not already taken by direct victim). R v SSHD, ex p Bulger [2001] EWHC Admin 119 at §20 (victim’s family not having standing to challenge tariff set by Lord Chief Justice, given that Crown and defendant able to challenge judicial decisions in criminal cases); R (McCourt) v Parole Board [2020] EWHC 2320 (Admin) (murder victim’s mother having standing to challenge parole board decision, albeit not challenged by the Secretary of State for Justice who appeared as principal party contesting release in the proceedings before the board) at §§47-48 (distinguishing the position of the Crown in criminal proceedings), §48 (rejecting the suggested “general principle that a decision taken by an independent judicial authority in proceedings between an offender and the state can only be challenged by the parties to that decision”). 38.2.22 Standing: obvious better-placed challenger is challenging. R (Jones) v Metropolitan Police Commissioner [2019] EWHC 2957 (Admin) [2020] 1 WLR 519 at §61 (since three more directly affected claimants “are better placed to bring the claim”, four other claimants “do not have a sufficient interest”), §62 (“it is important to remind parties of the need to ensure that those who bring claims for judicial review are limited to those best placed to bring the claim”); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §109 (Mayor of London not having standing to be a claimant in challenging parole board release decision), §110 (liberal approach to standing inapt here where there are “obviously better-placed challengers”). 38.2.23 Standing: obvious better-placed challenger could have challenged. R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011 [2010] LGR 1 at §72 (as to standing to challenge procurement breach, “economic operators can test the question of legality”); Durayappah v Fernando [1967] 2 AC 337, 352G-353B (Lord Upjohn, explaining that where “the council should have been given the opportunity of being heard in its defence, if it deliberately chooses not to complain and takes no step to protest against its dissolution, there seems no reason why any other person should have the right to interfere”), 355D (different if circumstances meant “impracticable” for the directly affected council to challenge); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 366D-E (Lord Diplock: “[standing] to challenge the validity of subordinate legislation may be restricted, under the court’s inherent power to control its own procedure, to a particular category of persons affected by the subordinate legislation, and if none of these persons chooses to challenge it the presumption of validity prevails”); R v Bow County Court,

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equivalent paragraph in a previous edition was relied on in R (Global Vision College Ltd) v SSHD [2014] EWCA Civ 659 [2014] ELR 313 at §70 (Beatson LJ).

551

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ex p Pelling [1999] 1 WLR 1807 (where court refusing to exercise discretion to allow litigant in person to be accompanied by McKenzie friend, challenge brought by potential McKenzie friend not litigant in person (who had suffered no prejudice)); R v Commissioners of Inland Revenue, ex p Continental Shipping Ltd [1996] STC 813 (refusing remedy because the taxpayers, to whom reasons statutorily required to be given, not a party to the proceedings). 38.2.24 Standing: claimant need not be the most obvious challenger. R (Islam) v SSHD [2019] EWHC 2169 (Admin) [2019] ACD 131 at §21 (father having standing to challenge decision to deprive his son of citizenship); R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) at §201 (Ouseley J, describing it as not “essential, in order for the claimant to have … standing, that there be no one else who could bring such proceedings”; this being “a relevant factor … but … not an essential prerequisite”); R v SSHD, ex p Brind [1991] 1 AC 696, 752E-F (challenge to the Home Secretary’s “directives” restricting the broadcasting of certain matters was mounted not by the IBA or the BBC, to whom they were directed, but by “broadcast journalists”); R v London Borough of Haringey, ex p Secretary of State for the Environment [1991] COD 135 (Secretary of State having standing to challenge setting of community charge, even though no challenge by ratepayer or district auditor); R v Manchester City Council, ex p Baragrove Properties Ltd (1992) 4 Admin LR 171, 182C-H (circumstances in which landlord, and not just tenants, entitled to challenge council’s approach to housing benefit); R v Felixstowe Justices, ex p Leigh [1987] QB 582, 596G-H (fact that others more directly affected not precluding standing). 38.2.25 Standing and the better-placed challenger: realism. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 644E-F (“The Attorney-General, although he occasionally applies for prerogative orders against public authorities that do not form part of central government, in practice never does so against government departments”); R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1155, 1196B-C (“It must not be forgotten that, in the field of education, there must be some reluctance on the part of parents to become entangled in disputes with their children’s schools, or with the authorities responsible for them, on this subject. Quite apart from fear of prejudicing their children’s prospects, the simple fact is that children pass rapidly on to other things, and a complaint of this kind may soon become irrelevant in relation to them”); R v Lambeth LBC, ex p Crookes (1999) 31 HLR 59, 67 (landlord having standing to challenge failure to pay housing benefit in respect of claimants, where money would be received by him; defaulting residents having “little or no interest in the implementation of these regulations”). 38.2.26 Put-up challengers and legal aid: whether an abuse of process.95 R (Jones) v Denbighshire County Council [2016] EWHC 2074 (Admin) [2016] ACD 113 at §87 (“Whilst … it may be an abuse of process if (e.g.) proceedings are brought in the name of a child rather than his or her parent for the purpose of obtaining public funding and protection against a possible costs order, clear evidence is needed to establish that that had occurred”); R (SDR) v Bristol City Council [2012] EWHC 859 (Admin) at §20 (Underhill J, speaking of entitlement to legal aid: “It is by no means established that the selection of a claimant on this basis is an abuse”); R (Edwards) v Environment Agency [2004] EWHC 736 (Admin) [2004] 3 All ER 21 (not an abuse of process to bring environmental challenge to process in which had not participate, even as an individual put up as legally-aidable), §20 (recognising role of the Legal Services Commission in addressing legitimacy and appropriateness of claimant under the Funding Code; “The Commission must … be taken to have addressed the question of whether granting a funding certificate … would be an abuse of the system”), §21 (here “not … an abuse of the court’s process. even if [the claimant] has been put up to front the claim in order to secure public funding for it”).

95The

equivalent paragraph in a previous edition was relied on in R (Alastairs Solicitors) v Exeter Crown Court [2011] EWHC 1794 (Admin) at §13 (Beatson J).

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38.2.27 Standing and matter becoming academic: lapse. R v Head Teacher and Governors of Fairfield Primary School, ex p W [1998] COD 106 (standing treated as having ‘lapsed’ where matter having ceased to be of practical significance); {4.5} (utility: hypothetical/ academic issues).

38.3 Standing at the permission/substantive stages. Standing is statutorily framed as a precondition for the grant of permission for judicial review. The Courts apply a threshold test at the permission stage, to filter out cases brought by ‘busybodies’. Beyond that, standing can be approached ‘in the round’, alongside an analysis of the context and substance of the case, at the substantive hearing in the context of whether to allow the substantive claim: whether the grant of a remedy is appropriate. 38.3.1 Standing rule referring to permission. Senior Courts Act 1981 s.31(3) (“the court shall not grant [permission] to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates”). The old 1977 RSC Ord 53 r 3(5) contained a similar express reference linking standing to permission (leave). Administrative Court: Judicial Review Guide (2020 edition) at §5.3.2.2 (“Any issue as to standing will usually be determined when considering the application for permission to apply for judicial review, but it may be raised and determined at any stage”). 38.3.2 Standing: two stages. R (Nationwide Association of Fostering Providers) v Bristol City Council [2015] EWHC 3615 (Admin) [2016] PTSR 932 at §10, applying R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763, 773H (Sir John Donaldson MR: “The first stage test, which is applied upon the application for [permission], will lead to a refusal if the [claimant] has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the [claimant], the [claimant] may expect to get [permission] to apply, leaving the test of interest or standing to be re-applied as a matter of discretion on the hearing of the substantive application”). 38.3.3 Standing as a procedural bar at the permission stage: ‘busybodies’.96 R (Islam) v SSHD [2019] EWHC 2169 (Admin) [2019] ACD 131 at §21 (asking the “busybody” question at the permission stage); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 630C-E (Lord Wilberforce: “There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him [permission] to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications”), 646B-C (Lord Fraser: “a mere busybody does not have a sufficient interest. The difficulty is … to distinguish between the desire of the busybody to interfere in other people’s affairs and the interest of the person affected by or having a reasonable concern with the matter to which the application relates”), 653G-H (describing permission as a stage which “enables the court to prevent abuse by busybodies, cranks, and other mischief-makers”); R v Somerset County Council, ex p Dixon [1998] Env LR 111, 116-117 (Sedley J, distilling these propositions: “(a) The threshold at the point of the application for [permission] is set only at the height necessary to prevent abuse. (b) To have ‘no interest whatsoever’ is not the same as having no pecuniary or special personal interest. It is to interfere in something with which one has no legitimate concern at all; to be, in other words, a busybody. (c) Beyond this point, the question of standing has no materiality at the [permission] stage”), 121 (“entirely misconceived” to seek “to elevate the question of standing at the [permission] stage above the elementary level of excluding busybodies and troublemakers and to demand something akin to a special private interest in the subject matter”); R (Baljinder Singh) v HMRC [2010]

96The

equivalent paragraph in a previous edition was relied on in R (Grierson) v Ofcom [2005] EWHC 1899 (Admin) [2005] EMLR 37 at §22 (Stanley Burnton J).

553

PARAMETERS OF JUDICIAL REVIEW

UKUT 174 (TCC) [2010] STC 2020 at §42 (permission refused because bankrupt having no standing to challenge proof of debt, the trustee in bankruptcy alone having standing); R v Dean and Chapter of St Paul’s Cathedral [1998] COD 130 (permission refused because, in seeking to challenge ordination of women priests in Wales, Church of England priest a busybody); R v Legal Aid Board, ex p Bateman [1992] 1 WLR 711, 718C (Nolan LJ: “It would be inaccurate as well as discourteous to describe [the claimant] as a busybody, but her attempt to intervene is at best quixotic and cannot be upheld”). 38.3.4 Permission judge deferring the question of standing. R (NBV) v Parole Board [2018] EWHC 234 (Admin) at §10 (court granting permission, but “reserving the position in relation to standing” of one of the claimants); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §10 (“the court ordered that the issue of standing should be reserved for consideration at the substantive hearing”). 38.3.5 Trial of preliminary issue on the question of standing. R (Wylde) v Waverley Borough Council [2017] EWHC 466 (Admin) [2017] PTSR 1245 at §§2, 21 (standing addressed as a preliminary issue, after permission granted); R (Edwards) v Environment Agency [2004] EWHC 736 (Admin) [2004] 3 All ER 21 (ruling on standing as a preliminary issue) at §8 (treating standing as “a discrete issue which could be decided irrespective of the merits of the claim”); R (UNISON) v NHS Wiltshire Primary Care Trust [2012] EWHC 624 (Admin) [2012] ACD 84 at §1 (delay and standing as preliminary issues). 38.3.6 Standing at the substantive hearing: general. R (EU Lotto Ltd) v Secretary of State for Digital Culture Media and Sport [2018] EWHC 3111 (Admin) [2019] 1 CMLR 41 at §§1, 110-111 (standing argued substantively at rolled-up hearing where permission granted); R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011 [2010] LGR 1 at §77 (“once permission to bring judicial review proceedings has been given, then, unless it is appropriate to deal with standing as a preliminary issue, there is likely to be little point in spending valuable court time and costs on the issue of standing”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (HL criticising approach of treating standing as divorced from the substantive issues in the case), 656D-E (standing depending “upon the due appraisal of many different factors revealed by the evidence produced by the parties”); R v Somerset County Council, ex p Dixon [1998] Env LR 111, 117 (“At the substantive hearing ‘the strength of the [claimant]’s interest is one of the factors to be weighed in the balance’: that is to say that there may well be other factors which properly affect the evaluation of whether the [claimant] in the end has a ‘sufficient interest’ to maintain the challenge and – what may be a distinct question – to secure [a remedy] in one form rather than another”); R v Legal Aid Board, ex p Bateman [1992] 1 WLR 711, 714F (“In some cases … it will be necessary to decide whether the application for judicial review is well founded in substance before determining the question of the [claimant]’s sufficiency of interest”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 395F-G; R v Her Majesty’s Inspectorate of Pollution, ex p Greenpeace Ltd [1994] 4 All ER 329, 349d-j. Cf Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 (NIHRC had been granted permission for judicial review, but found at the substantive stage not to have capacity to bring the challenge). 38.3.7 Standing at the substantive hearing: context and statutory framework. R (Wylde) v Waverley Borough Council [2017] EWHC 466 (Admin) [2017] PTSR 1245 at §21 (“whether or not there [is] a sufficient interest so as to establish standing [has] to be considered together with and alongside the legal context of the application”), §22 (“In assessing the question of standing … a key issue [is] the legislative framework within which the decision arises”); R v Traffic Commissioner for the North Western Traffic Area, ex p BRAKE [1996] COD 248 (importance of analysing factual and legal context); R v Sheffield City Council, ex p Power The Times 7 July 1994 (“sufficient interest” dependent on “the nature of the [remedy] sought and … the legal and factual context of the subject matter of the application”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 631F-G (whether claimant within scope of defendant’s duty), 636C-F 554

P38 Standing

(emphasising nature of the duty and alleged breaches), 646C-D (whether alleged duty giving rise to right on the part of the claimant to complain), 649H-650A (character of the duty and the nature of the claimant’s interest), 656D-E, 662E-G (nature of the duty and the complaint made). 38.3.8 Standing affected by whether unlawfulness shown. {38.2.5} (standing: avoiding Lord Diplock’s rule of law ‘lacuna’); R (UNISON) v NHS Wiltshire Primary Care Trust [2012] EWHC 624 (Admin) [2012] ACD 84 at §§5, 16 (whether standing could be justified by “gravity” of departure from public law procurement obligations); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 635F-636A (suggesting that because Revenue acting perfectly lawfully, “the federation had shown no sufficient interest in that matter to justify its application for [a remedy]”), 637D-F (focusing on whether grounds made out), 645C-E (suggesting that in the light of a finding of legality that in the final analysis claimant not having a sufficient interest), 654H-655B (“The federation, having failed to show any grounds for believing that the revenue has failed to do its statutory duty, have not, in my view, shown an interest sufficient in law to justify any further proceedings by the court on its application”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 395G, 402G. 38.3.9 Standing addressed at the stage of discretion as to remedy. R (Save our Surgery Ltd) v Joint Committee of Primary Care Trusts [2013] EWHC 1011 (Admin) at §4 (“The interest of the particular applicant is not merely a threshold issue which ceases to be material once the requirement of standing has been satisfied, it may also bear upon the court’s exercise of its discretion as to the remedy, if any, which it should grant in the event that the challenge is well-founded”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 656D-E (“the grant or refusal of the remedy sought by way of judicial review is, in the ultimate analysis, discretionary, and the exercise of that discretion and the determination of the sufficiency or otherwise of the [claimants’] interest will depend … upon the due appraisal of many different factors revealed by the evidence produced by the parties, few if any of which will be able to be wholly isolated from the others”); R v Department of Transport, ex p Presvac Engineering Ltd (1992) 4 Admin LR 121, 145G-146B (“The court must … review at [the substantive] stage the question of sufficiency of interest and exercise its discretion accordingly. Whether this is properly called an investigation of locus standi or the exercise of discretion whether to grant [a remedy] is probably a semantic distinction without a difference”); R v Criminal Injuries Compensation Board, ex p P [1995] 1 WLR 845, 863F-H (“The nature and extent of the interest of [a claimant] who has crossed the relatively low statutory threshold of having a sufficient interest for the purpose of obtaining [permission] to bring judicial review proceedings may be relevant at the substantive hearing in relation to the exercise of discretion”); R v Head Teacher and Governors of Fairfield Primary School, ex p W [1998] COD 106 (standing treated as having ‘lapsed’ where matter having ceased to be of practical significance); R v Pembrokeshire County Council, ex p Coker [1999] 4 All ER 1007, 1014c-d (claimants lacking standing to challenge decision to lease council land).

38.4 Standing and HRA s.6: the ‘victim’ test. To claim breach of the public authority duty (HRA s.6) to act compatibly with Convention rights, a ‘victim’ test applies (s.7). That reflects the ECHR/Strasbourg approach. It can introduce a difficulty when contrasted with the liberal approach to standing at domestic common law, including as seen in pre-HRA human rights cases. But this need not be insurmountable. In any case involving statutory powers and duties, the HRA s.3 interpretative duty would still arise. Common law rights continue, and other steps can solve the problem. 38.4.1 The ‘victim’ test: HRA ss.6, 7. Human Rights Act 1998 s.6 {9.4}; s.7(1), (3), (7) (“(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 555

PARAMETERS OF JUDICIAL REVIEW

in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. … (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. … (7) For the purposes of this section, a person is a 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”); Al Hassan-Daniel v HMRC [2010] EWCA Civ 1443 [2011] QB 866 at §23 (“the word ‘victim’ in section 7(1) … is given its autonomous Convention meaning by section 7(7)”). 38.4.2 No victim test for invoking HRA ss.3, 4. Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 at §62 (Lord Mance: “ss.3 and 4 of the HRA are not made expressly subject to the ‘victimhood’ requirement which affects ss.6 and 7 … though they must undoubtedly be subject to the usual rules regarding standing in public law proceedings”), §17 (Lady Hale), §185 (Lord Kerr). 38.4.3 No victim test for common law judicial review. {P35} (principle of legality); {32.4} (anxious scrutiny); R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 (human rights claim brought by non-governmental organisation); R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin) (human rights claim brought by peace campaigner); {38.2.1} (liberal approach to standing); Human Rights Act 1998 s.11 (“Safeguard for existing human rights. 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”). 38.4.4 Victim test problem solved by cooperation. R (Amicus – MSF Section) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin) [2004] ELR 311 at §20] (Secretary of State not objecting to reliance by group on the HRA in challenging employment regulations, notwithstanding “victim” test); {10.1} (judicial review as a cooperative enterprise). 38.4.5 NGO/entity and the victim test. R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin) at §41 (claimants not “victims” for the purposes of any applicability of Art 6 arising out of proceedings concerning extradition and ill-treatment of non-parties); R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §104 (Citizens UK arguably not capable of being a ‘victim’); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §10 (charity not a ‘victim’ in relation to HRA-compatibility of coroner’s policy); R (Children’s Rights Alliance for England) v Secretary of State for Justice [2013] EWCA Civ 34 [2013] 1 WLR 3667 at §6 (EHRC support of claim solving the problem that claimant NGO not an HRA victim) (High Court is [2012] EWHC 8 (Admin) at §§223-224: “very unfortunate” that an organisation with function of protecting children’s interests not a “victim” within s.7); R (Broadway Care Centre Ltd) v Caerphilly County Borough Council [2012] EWHC 37 (Admin) at §74 (care home not a victim in relation to Art 8 rights of its residents); R (National Secular Society) v Bideford Town Council [2012] EWHC 175 (Admin) [2012] 2 All ER 1175 at §2 (former councillor joined as second claimant because NSS could not be a HRA “victim”); In re Medicaments and Related Classes of Goods (No 4) [2001] EWCA Civ 1217 [2002] 1 WLR 269 at §§8, 18-19 (association not a “victim” where claim not a representative action); R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at §20 (local authority not capable of being HRA “victim”). 38.4.6 Victim test in action: illustrations. R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §10 (local resident a ‘victim’, in relation to HRA-compatibility of coroner’s policy); Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] 2 AC 72 at §46 (family members as ‘victims’ in relation to substantive violation of Art 2); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §§28, 111 (insurance companies ‘victims’ for A1P1 challenge to Scottish enactment enabling damages claims for which they were likely to bear the burden); R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29 [2005] 1 WLR 1681 556

P38 Standing

at §57 (sufficient, for claim that benefit discriminatorily unavailable, that claimant had done something to indicate to an appropriate official that he would have made a claim had it been possible); Lancashire County Council v Taylor [2005] EWCA Civ 284 [2005] 1 WLR 266 (in possession proceedings, defendant not an HRA victim because not adversely affected by any alleged discrimination and would not benefit from declaration of incompatibility); R (Countryside Alliance) v Attorney General [2006] EWCA Civ 817 [2007] QB 305 (CA) at §65 (sufficient that claimants running the risk of being directly affected by state interference violating their Convention rights); R (Holub) v SSHD [2001] 1 WLR 1359 at §14 (suggesting parent a sufficient victim where complaining of breach of child’s rights); R (H) v Ashworth Hospital Authority [2001] EWHC Admin 872 [2002] 1 FCR 206 (mental patient a sufficient “potential and indirect” victim to challenge ‘no condoms’ policy); R v Shayler [2001] EWCA Crim 1977 [2001] 1 WLR 2206 (CA) at §92 (press not ‘victims’). 38.4.7 Whether claimant no longer an HRA ‘victim’. Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] 2 AC 72 at §58 (victim status not lost by settlement of linked negligence claim); R (Napier) v SSHD [2004] EWHC 936 (Admin) [2004] 1 WLR 3056 at §58 (violation of Art 6 but acknowledged by Secretary of State in removing extra prison disciplinary days), §61 (therefore claimant no longer a ‘victim’ and judicial review refused); MS (Pakistan) v SSHD [2020] UKSC 9 [2020] 1 WLR 1373 at §§9-10 (HRA:ECHR Art 4 human trafficking issue becoming academic for the individual appellant, who withdrew); {4.5} (utility: hypothetical/academic issues). 38.4.8 Whether claimant not yet a victim. {4.6} (prematurity); {4.6.7} (prematurity and the HRA: whether a ‘victim’ yet). 38.4.9 The Human Rights Commissions. Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 (NIHRC’s statutorily conferred competence to raise human rights arguments, but not extending to ECHR-compatibility challenge to primary legislation where no identified victim); 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 (Children’s Rights Alliance for England) v Secretary of State for Justice [2013] EWCA Civ 34 [2013] 1 WLR 3667 at §6 (EHRC support of claim solving the problem that claimant NGO not an HRA victim).

557

P39 Discretion/duty. The Court supervises the powers and duties of public authorities. 39.1 No unfettered powers 39.2 Discretion (power): the essential duties 39.3 Discretion and duty in action

39.1 No unfettered powers.97 No discretionary power amenable to judicial review, however wide, is ‘unfettered’. Power is conferred on trust. It always has limits, which the Courts delineate and enforce, identifying public law duties and ensuring that they have not been breached. 39.1.1 The rule of law and no unfettered powers. {1.2.12} 39.1.2 Power is limited: no such thing as unfettered discretion. R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349, 381B (Lord Bingham: “no statute confers an unfettered discretion on any minister”), 396D-E (Lord Nicholls: “No statutory power is of unlimited scope”), 400B (Lord Cooke: “no statutory discretion is unlimited”), 404E (Lord Hope: “No minister who seeks to exercise a discretion which legislation has conferred on him can claim that the discretion, however widely expressed, is unfettered or unlimited”), 412H (Lord Hutton); R (GC) v Metropolitan Police Commissioner [2011] UKSC 21 [2011] 1 WLR 1230 at §§107-108 (importance of control by standards, including by reference to the policy and objects of the Act, and the implied duty to exercise the power in the circumstances envisaged for its exercise); Anns v Merton LBC [1978] AC 728, 762B (discretion not “absolute” but has to “be responsibly exercised”); Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997, 1060F-G (“unfettered” described as an “unauthorised gloss”: “the use of that adjective, even in an Act of Parliament, can do nothing to” undermine “the control which the judiciary have over the executive, namely that in exercising their powers the latter must act lawfully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister”); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 at §32 (discretion not unfettered); De Smith, Judicial Review of Administrative Action (1st edition, 1959) at 168-169 (“a discretionary power which is prima facie unfettered may be held subject to implied limitations set by the common law”). 39.1.3 Every tapestry has a border: Laws LJ in Bancoult. R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 at §55 (“a colonial legislature empowered to make law for the peace, order and good government of its territory is the sole judge of what those considerations factually require. … But the colonial legislature’s authority is not wholly unrestrained; peace, order and good government may be a very large tapestry, but every tapestry has a border”). 39.1.4 Power is limited: no freestanding power/need for positive authority. {6.1.1} 39.1.5 Power is held on trust: to be exercised for the purpose for which conferred. JP Whitter (Water Well Engineers) Ltd v HMRC [2018] UKSC 31 [2018] 1 WLR 3117 at §21 (Lord Carnwath, describing “the basic principle that any statutory discretion must be exercised consistently with the objects and scope of the statutory scheme”); R (British Telecommunications Plc) v HM Treasury [2018] EWHC 3251 (Admin) [2019] Pens LR 9 (CA is [2020] EWCA Civ 1) at §159, citing R v Tower Hamlets LBC, ex p Chetnik

97The

equivalent paragraph in a previous edition was relied on in T v H (Spousal Maintenance) [2006] NZFLR 560 at §28.

P39 Discretion/duty

Developments Ltd [1988] AC 858, 872B-F (Lord Bridge, approving Professor Wade’s statement that: “Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely – that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. … [I]n a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act”); Ittihadieh v 5-11 Cheyne Gardens RTM Co Ltd [2017] EWCA Civ 121 [2018] QB 256 (discretion conferred on a court by legislation not “general and untrammelled” but must be exercised “in furtherance of the purpose for which it is conferred”); R (Electoral Commission) v Westminster Magistrates’ Court [2010] UKSC 40 [2011] 1 AC 496 (applying Chetnik to adopt a purposive interpretation); Credit Suisse v Allerdale Borough Council [1997] QB 306, 333G-H, 334F (“Statutory powers are conferred on local authorities upon trust. These powers can only be used in the way which Parliament is presumed to have intended”); Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 at §19(2) (Lord Bingham: “It follows from the proposition that public powers are conferred as if upon trust that those who exercise powers in a manner inconsistent with the public purpose for which the powers were conferred betray that trust and so misconduct themselves”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 398C-D (“statutory powers, however permissive, must be used with scrupulous attention to their true purposes and for reasons which are relevant and proper”); R v SSHD, ex p Brind [1991] 1 AC 696, 756F (power “not an absolute or unfettered discretion. It is a discretion which is to be exercised according to law and therefore must be used only to advance the purposes for which it was conferred. It has accordingly to be used to promote the policy and objects of the Act”); Stewart v Perth and Kinross Council [2004] UKHL 16 at §28 (Lord Hope: “the discretion which is vested in the licensing authority is not unlimited. The authority is not at liberty to use it for an ulterior object, however desirable that object may seem to it to be in the public interest”); R (Attfield) v Barnet LBC [2013] EWHC 2089 (Admin) [2013] PTSR 1559 at §38; R (AA (Nigeria)) v SSHD [2010] EWHC 2265 (Admin) at §40 (immigration detention power to be used for the purpose of deportation, not available for detention to prevent suicide); {53.1.2} (duty to promote and not frustrate the legislative purpose: the Padfield principle). 39.1.6 ‘Discretion’ or evaluative ‘judgment’. Gordon v Scottish Criminal Cases Review Commission [2017] UKSC 20 [2017] SLT 365 at §45 (statutory test “requires an evaluation of a broad nature”); R v Devon County Council, ex p G [1989] 1 AC 573, 604E-F (Lord Keith: “It is for the authority, and no one else, to decide whether free transport is really needed for the purpose of promoting the attendance at school of a particular pupil. That must depend on the authority’s view of the circumstances of the particular case. … The authority’s function in this respect is capable of being described as a ‘discretion’, though it is not, of course, an unfettered discretion but rather in the nature of an exercise of judgment”); Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624 at §20 (local authority homelessness decision “dependent upon … evaluative judgments”); {13.3.2} (‘judgment’ and ‘discretion’). 39.1.7 Power described as ‘unfettered’: meaning non-reviewable. {34.4} (‘non-reviewable’ public functions); Gouriet v Union of Post Office Workers [1978] AC 435, 512C-F (referring to the Attorney-General’s power to halt a criminal prosecution as “his unfettered discretion”, in the sense of being characterised as “absolute and non-reviewable”). 39.1.8 Power described as ‘unfettered’: meaning ‘at large’. In re Findlay [1985] AC 318, 332F-G (Lord Scarman: “the Secretary of State has two unfettered discretions. It is entirely a matter for him whether or not to refer the case of a prisoner to the [parole] board for advice: and he has a complete discretion whether or not to accept the board’s recommendation”); R v Inner London Education Authority, ex p Brunyate [1989] 1 WLR 542, 549G-H (“The authority has a wholly unfettered discretion as to whom it will appoint or reappoint”); Brooks v DPP [1994] 1 AC 568, 579B (Lord Woolf: “On the [statutory] language … the DPP is entitled, if he chooses to do so in his unfettered discretion, to seek the directions or consent of a judge as to whether an indictment should be preferred”); R v Secretary of State for the 559

PARAMETERS OF JUDICIAL REVIEW

Environment, ex p Lancashire County Council [1994] 4 All ER 165, 177j-178a (“an unfettered discretion on the Secretary of State to decide not to exercise his powers”); R (Mohammad) v SSHD 24 January 2002 unreported at §55 (using “unfettered discretion” to mean that Secretary of State was “not required to form any opinion on [the suggested] matter”).

39.2 Discretion (power): the essential duties. A public authority entrusted with a discretion (or power) in principle always owes certain core duties. The failure to recognise or discharge any of these can, in principle, justify the Court’s intervention on judicial review. Other duties also arise, depending on: the particular regulatory scheme and its true interpretation; the context and public authority function; and the circumstances of the case. 39.2.1 Duty to exercise the power for the purpose conferred. {39.1.5} (power is held on trust: to be exercised for the purpose for which conferred); {53.1} (duty to promote the legislative purpose). 39.2.2 Duty to understand the nature/limits of the power. DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301 at §3 (“necessary” for police “to have a proper understanding of the extent of the legal powers available to them”), §70 (police “laboured under a misapprehension as to the extent of their powers”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1164H (defendant made an “erroneous assumption that he had an absolute discretion”), 1161H; R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 249C-D (“Power can be abused … by a mistake of law in misconstruing the limits imposed by statute (or by common law in the case of a common law power) upon the scope of the power”); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 174C-D (whether “a wrong conclusion as to the width of their powers”); R (Certain Underwriters at Lloyds London) v HM Treasury [2020] EWHC 2189 (Admin) (judicial review granted where defendant misinterpreted EU Regulation and concluded that it had no power to provide information requested); R (Thapa) v SSHD [2014] EWHC 659 (Admin) [2014] 1 WLR 4138 at §66 (“there is no evidence that the defendant’s officer appreciated she was exercising a discretion, rather than taking action which followed automatically from her belief that there had been a breach”); {61.7.10} (powers of procedural fairness: duty to consider exercise of the power). 39.2.3 Duty to ask the right question. R (AB) v Ealing LBC [2019] EWHC 3351 (Admin) [2020] ACD 23 at §50 (defendant “failed to address … the question which it was required to address”); R (Beach) v Folkestone Magistrates’ Court [2018] EWHC 2843 (Admin) [2018] ACD 125 at §41 (magistrates “failed to apply the correct test”); R (Decker) v SSHD [2017] EWCA Civ 1752 [2018] 1 WLR 4233 at §58 (Hamblen LJ: “failing to consider and apply the correct test is itself an error of law”); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B (“the question for the court is, did the Secretary of State ask himself the right question”). 39.2.4 Duty to consider exercising the power.98 R (Dickinson) v HMRC [2018] EWCA Civ 2798 [2019] 4 WLR 22 at §54 (“A statutory discretion … must be exercised conscientiously in all the circumstances”); Stannard v CPS [2019] EWHC 84 (Admin) [2019] 1 WLR 3229 at §45 (if affected person sends reasoned representations, “on ordinary public law principles, the authorised person will have to consider those representations when considering the exercise of [the] discretion as to whether to retain, or revoke or vary, the notice”); R (AB) v SSHD [2018] EWCA Civ 383 [2018] Imm AR 1015 at §48 (duty to consider exercising discretion outside the immigration rules not arising unless claimant made a request or facts so striking that irrational not to do so); R (KI) v Brent LBC [2018] EWHC 1068 (Admin) (2018) 21 CCLR 294 at §113 (failure to consider the exercise of the discretion);

98The

equivalent paragraph in a previous edition was relied on in R (Luton BC) v CBC [2014] EWHC 4325 (Admin) at §153 (Holgate J).

560

P39 Discretion/duty

R (Behary) v SSHD [2016] EWCA Civ 702 at §39 (duty to consider granting discretion outside the rules when applicant has requested this); Stovin v Wise [1996] AC 923, 950B (Lord Hoffmann: “A public body almost always has a duty in public law to consider whether it should exercise its powers”), applied in R (Cityhook Ltd) v Office of Fair Trading [2009] EWHC 57 (Admin) at §176; R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513 (discretion as to whether to implement statutory scheme accompanied by duty to consider exercising the power); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309, 349H (“duty to consider whether or not to make a discretionary award in the event of a failure to establish eligibility for a mandatory award”); R v SSHD, ex p Tarrant [1985] QB 251, 283G-284C (failure to consider whether to exercise discretion to allow legal representation); R v Governor of Brixton Prison, ex p Walsh [1985] AC 154, 165E-F (where “discretionary power … to have the prisoner brought to the court”, duty “to consider any request”); Anns v Merton LBC [1978] AC 728, 755C (“They are under a duty to give proper consideration to the question whether they should inspect or not”); R v Hertfordshire County Council, ex p Cheung The Times 4 April 1986 (transcript) (identifying a “power to reconsider their decision” and “a duty to consider exercising this power”); {50.1} (basic duty not to abdicate/fetter); {50.4} (fetter by inflexible policy); {61.7.10} (powers of procedural fairness: duty to consider exercise of the power). 39.2.5 Duty to act where satisfied as to statutory trigger. R (OWD Ltd) v HMRC [2019] UKSC 30 [2019] 1 WLR 4020 at §12 (fit and proper person precondition to grant of approval), §38 (where HMRC “have concluded that no conditions or limitations will enable them to be satisfied that the person is fit and proper … there is no power to grant temporary approval pending appeal”); {39.3.2} (discretion/power converted into a duty). 39.2.6 Duty not to delay. {50.1.3} (delay as abdication of function); {46.1.13} (delay as ultra vires/breach of statutory duty); {53.1.13} (delay as frustrating the legislative purpose); {57.3.12} (delay as unreasonableness/unreasonable delay); {59.5.13} (Article 6: delay/ hearing within a reasonable time); {61.7.2} (a right to prompt resolution: delay as procedural unfairness); FMX Food Merchants Co Ltd v HMRC [2020] UKSC 1 [2020] 1 WLR 757 at §45 (EU law requirement that communication by HMRC of a debt “be made within a reasonable time, if otherwise the principle of legal certainty would be offended”), §47 (“The communication must be made within a reasonable time”); R (AC (Algeria)) v SSHD [2020] EWCA Civ 36 [2020] 1 WLR 2893 at §31 (“grace period” allowing for practical matters such as organising conditions of release, once continued immigration detention incompatible with Hardial Singh principles), §43 (two weeks was ample); R (Farmiloe) v Secretary of State for Business Energy and Industrial Strategy [2019] EWHC 2981 (Admin) at §96 (Lang J: “Excessive and unreasonable delay by a public body in discharging its statutory functions may amount to procedural unfairness, irrationality, or an abdication of discretion”); R (O) v SSHD [2019] EWHC 148 (Admin) at §66 (Garnham J: “Prolonged and inexcusable delay can justify the issue of a mandatory order”), §67 (“decisions must be taken in a reasonable time”), §89 (“Delay may be unlawful when the right in question arises as a matter of established status and the delay causes hardship”; “Delay is also unlawful if it is shown to result from actions or inactions which can be regarded as irrational”); R (Mohamed) v SSHD [2018] EWHC 3547 (Admin) [2019] ACD 33 (unlawful delay in determining indefinite leave to remain application); R (Bowen) v Secretary of State for Justice [2017] EWCA Civ 2181 [2018] 1 WLR 2170 at §§44, 57 (public law duty not to delay prisoner’s release beyond a reasonable timeframe); Moore v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) at §172 (delays as breach of HRA:ECHR Art 6); Durity v Attorney General of Trinidad and Tobago [2008] UKPC 59 at §29 (gross delay in investigation of alleged misconduct incompatible with fairness and constitutional protection of the law); R (Saadi) v SSHD [2002] UKHL 41 [2002] 1 WLR 3131 at §26 (immigration detention must be only for a reasonable time, applying R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704, 706); {59.5.13} (HRA:ECHR Art 6: delay/hearing within a reasonable time); {59.4} (HRA:ECHR Art 5: liberty); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 870D (“would have been inspired by an improper motive and would have constituted an abuse of power” to have “deliberately waited from 1979 until 1982 in order that the claims of the appellant might be time barred”). 561

PARAMETERS OF JUDICIAL REVIEW

39.2.7 Duty of inquiry: to take reasonable steps to inform itself. {51.1} (duty of sufficient inquiry). 39.2.8 Duty to act in the public interest. R (Sefton Metropolitan Borough Council) v Highways England [2018] EWHC 3059 (Admin) at §69 (“Highways England … must exercise its functions in the public interest”); R (TC Projects Ltd) v Newcastle Licensing Justices [2008] EWCA Civ 428 at §12 (statutory powers to be exercise for the purpose they were conferred and on relevant grounds of public interest); R v Tower Hamlets LBC, ex p Chetnik Developments Ltd [1988] AC 858, 872C-F (public authority must act “upon lawful and relevant grounds of public interest”); R v Northumbrian Water Ltd, ex p Newcastle and North Tyneside Health Authority [1999] Env LR 715, 724-729 (public interest duty inapplicable to commercial organisation/privatised body); 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 §§48, 74, 81 (leaving open whether Secretary of State obliged to exercise general powers in the public interest). 39.2.9 Duty to act in good faith/without improper motive. {52.1} (bad faith); {52.2} (improper motive). 39.2.10 Duty to act reasonably. {P57} (unreasonableness); {7.8} (basic reasonableness). 39.2.11 Duty to act fairly. {P61} (procedural fairness); {7.7} (basic fairness/natural justice). 39.2.12 Duty to act constitutionally. {P7} (constitutional fundamentals). 39.2.13 Basic transparency duties/the principle of transparency. R (Justice for Health Ltd) v Secretary of State for Health [2016] EWHC 2338 (Admin) [2016] Med LR 599 at §141 (Green J: “The principle of transparency … is now well established as a common law principle. It is said to amount to a component of the ‘rule of law’ and the principle of ‘legal certainty’ … a ‘requirement of good administration’ (to which the courts … give effect) that ‘public bodies ought to deal straightforwardly and consistently with the public’. The principle serves a number of important purposes. A law or policy should be sufficiently clear to enable those affected by it to regulate their conduct i.e. to avoid being misled. Such a law or policy should also be sufficiently clear so as to obviate the risk that a public authority can act in an arbitrary way which interferes with fundamental rights of an individual. Clear notice of a policy or decision is also required so that the individual knows the criteria that are being applied and is able to both make meaningful representations to the decision maker before the decision is taken and subsequently to challenge an adverse decision (for instance by showing that the reasons include irrelevant matters). Where the principle applies it might require the publication of the policy that a decision maker is exercising; it might require that the policy be spelled out in greater detail so that the limits of a discretion may be demarcated; it might require the decision-maker to be more specific as to when he/she will or will not act”), §148; R (Ames) v Lord Chancellor [2018] EWHC 2250 (Admin) [2018] ACD 115 at §71 (recognising “the public law duty of transparency and clarity”, referring to B v Secretary of State for Work and Pensions [2005] 1 WLR 3796 at §43, R (Lumba) v SSHD [2012] 1 AC 245 at §§34-35, R (Limbu) v SSHD [2008] EWHC 2261 (Admin) at §65, R (Oboh) v SSHD [2015] EWCA Civ 514 at §§28-29, R (Richmond Pharmacology Ltd) v Health Research Authority [2015] EWHC 2238 (Admin) at §§48, 96 and Justice for Health at §148), §75 (defendant owing “a duty of transparency and clarity” in relation to “calculator” used in its decision and not disclosed), §78 (breach of duty of transparency and clarity); R (Bridgerow Ltd) v Cheshire West and Chester Borough Council [2014] EWHC 1187 (Admin) [2015] PTSR 91 at §36 (Stuart-Smith J: “It is … important that the manner in which executive functions will be carried out (and to whom they are to be delegated) is published, transparent, and reliable”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §55 (Lord Mance, referring to “principles of accountability and transparency”); R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68 [2014] AC 453 at §65 (Lord Neuberger and Lord Toulson: “Fairness … requires that a claimant should have access to such information about the scheme as he or she may need in order to make informed and meaningful representations to the decision-maker before a decision is made. … The principle does not depend on the categorisation of the 562

P39 Discretion/duty

Secretary of State’s decision to introduce a particular scheme under statutory powers as a policy: it arises as a matter of fairness”); R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929 at §48 (“as a matter of good administration and transparent governance, any change to [publicly announced] policy had to been announced publicly”); R (DJ) v Welsh Ministers [2019] EWCA Civ 1349 [2020] PTSR 466 at §68 (policy “encouraging transparency in decision-making”); Nzolameso v Westminster City Council [2015] UKSC 22 [2015] PTSR 549 at §31 (“local authorities have a number of duties to evidence and explain their decisions”), §42 (need to “ensure that their decisions are properly evidenced and properly explained”); R (W) v SSHD [2020] EWHC 1299 (Admin) at §68 (in the context of destitution, emphasising “the need for clarity in the materials which inform caseworkers how they should go about making their decisions”); R (Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37 [2015] AC 225 at §§22-23, 31 (common law duty to disclose prosecution material, based on fairness); R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7 [2015] AC 1547 at §§67-73 (by-laws not publicised but nevertheless effective when confirmed as licence to the public); Healthcare at Home Ltd v Common Services Agency [2014] UKSC 49 [2014] PTSR 1081 at §8 (discussing the EU law-based “legal principle of transparency … in the context of invitations to tender for public contracts”); {6.2.3} (duty to publish policy guidance/change in policy guidance); {P64} (reasons); {48.1.12} (unlawfulness: application of an undisclosed policy). 39.2.14 Whether duty to communicate a decision: effectiveness and notification. 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”); R (SW) v SSHD [2018] EWHC 2684 (Admin) [2019] 1 WLR 2193 at §24 (curtailment of leave to remain only taking effect once written notice given); Anwar v SSHD [2017] EWCA Civ 2134 [2018] 1 WLR 2591 at §79 (“for there to be an operative condition which restricts a person to study at only one particular decision, that condition must be communicated clearly to the person affected in the individual case”), §68; Cosar v Governor of HMP Wandsworth [2020] EWHC 1142 (Admin) [2020] ACD 80 at §83 (validity of agreement to extend time for extradition not depending on notification to the individual); {42.2.5} (defendant lack of transparency would undermine effective judicial review). 39.2.15 Basic local government duties. School Facility Management Ltd v Governing Body of Christ the King College [2020] EWHC 1118 (Comm) at §301 (local authority fiduciary duty to ratepayers), applying Bromley LBC v Greater London Council [1983] 1 AC 768, 829G-H (“a local authority owes a fiduciary duty to the ratepayers from whom it obtains moneys needed to carry out its statutory functions, and … this includes a duty not to expend those moneys thriftlessly but to deploy the full financial resources available to it to the best advantage”), 838H, 815B; Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1, 37H; {39.2.8} (duty to act in the public interest). 39.2.16 Inalienability. {P40} (inalienability); {40.1} (preservation of powers and duties).

39.3 Discretion and duty in action. The powers and duties of a public authority, having a particular function and acting in a particular context and set of circumstances, coexist and interrelate. The Court will decide the width and parameters of a discretion or power conferred, the true nature of any principal duty imposed, and the further public law duties applicable. The Court will also decide what nature of review is appropriate in relation to any question which has arisen, including whether a question is hard-edged or attracts a ‘soft’ review (recognising a built-in latitude for the public authority). 39.3.1 Powers and duties coupled together. R (Sathanantham) v SSHD [2016] EWHC 1781 (Admin) [2016] 4 WLR 128 at §65 (Edis J, referring to situations where “the power is, in reality, a duty or … ‘coupled with’ a duty”), §69 (“a power coupled with a duty”); 563

PARAMETERS OF JUDICIAL REVIEW

Larner v Solihull Metropolitan Borough Council [2001] LGR 255 at §9 (Lord Woolf CJ, explaining that although “there is a distinction between the position where a statutory body has merely a power and where it is under a statutory duty”, “that simple distinction cannot always be decisive. On the one hand, a statutory body must give proper consideration to the exercise of its powers, and a failure to exercise a power may in a particular factual situation be so unreasonable as to amount to a breach of duty. On the other hand, a statutory duty may involve [a] large … degree of discretion (and in particular, discretion as to matters of policy)”); Julius v Bishop of Oxford (1880) 5 App Cas 214, 222-223 (Earl Cairns LC: “there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so”). 39.3.2 Discretion/power converted into a duty. M v Scottish Ministers [2012] UKSC 58 [2012] 1 WLR 3386 (discretionary power to make regulations involving a duty to exercise the power so that the statute becomes effective on its specified commencement date); Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997, 1039E-F (Lord Morris (dissenting in the result): “Where some legal right or entitlement is conferred or enjoyed, and for the purpose of effectuating such right or entitlement a power is conferred upon someone, then words which are permissive in character will sometimes be construed as involving a duty to exercise the power. The purpose and the language of any particular enactment must be considered”); Julius v Bishop of Oxford (1880) 5 App Cas 214, 243 (Lord Blackburn: “if the object of giving the power is to enable the donee to effectuate a right, then it is the duty of the donee of the powers to exercise the power when those who have the right call upon him so to do. And this is equally the case where the power is given by the word ‘may’ if the object is clear”); {39.2.5} (duty to act where satisfied as to statutory trigger); {2.6.11} (no remittal where only one proper course); {24.4.9} (mandatory order: sole legally permissible result); cf Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156 [2012] PTSR 645 at §14 (Court’s discretion to extend time: situations where EU principle of effectiveness “converts the discretion … into a duty”). 39.3.3 Duty and added discretion/power. R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 at §15 (Lord Nicholls, describing duties where “the terms themselves give … an area of discretion”); Engineers & Managers Association v Advisory Conciliation & Arbitration Service [1980] 1 WLR 302 (HL characterising Acas’s function in connection with recognition references as involving (a) a duty to conduct an investigation, (b) a “very wide discretion” as to how it will do so, (c) a power to adjourn an investigation but (d) a duty not to “abdicate” or “abandon” one), 305B-D (Lord Diplock), 310F (Lord Edmund-Davies), 317A-318G (Lord Scarman). 39.3.4 The discretion/duty distinction illustrated. R (Ismail) v SSHD [2016] UKSC 37 [2016] 1 WLR 2814 (function of authorising service of foreign judgment at the request of foreign government), §26 (“the fact that the Secretary of State is invested with a power, as opposed to an obligation” indicating that circumstances would arise in which it would not be appropriate); Superintendent of Prisons v Hamilton [2016] UKPC 23 at §22 (“may” constituting “a reliable indication of the creation of a discretion”, especially when “contrasted in the same subsection with ‘shall’”); Patel v SSHD [2013] UKSC 72 [2014] AC 651 at §27 (statutory provision conferring a discretion, not open to the Court to interpret it as a duty); R (Gallastegui) v Westminster City Council [2013] EWCA Civ 28 [2013] 1 WLR 2377 at §§17-18 (connoting discretion here); R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 at §12 (Lord Nicholls: “A power need not be exercised, but a duty must be discharged”), §74 (Lord Hope); Singh (Pargan) v SSHD [1992] 1 WLR 1052, 1056F-G (statutory power framed under the permissive “may” nevertheless interpreted as a duty); R v East Sussex County Council, ex p Tandy [1998] AC 714, 749A-F (statutory duty not to be downgraded, by allowing lack of resources as an excuse for non-performance, into a discretionary power); Laker Airways Ltd v Department of Trade [1977] QB 643, 669-670 (duty as to ends, discretion as to means); 564

P39 Discretion/duty

{61.4.3} (whether intended vitiating consequence: Soneji); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 364E-F (law enforcement duties); R (K) v West London Mental Health NHS Trust [2006] EWCA Civ 118 [2006] 1 WLR 1865 (discretion not duty as to funding placement favoured by responsible medical officer); R v SSHD, ex p National Association of Probation Officers [1996] COD 399 (discretion, not duty, to make regulations governing probation officers’ qualifications). 39.3.5 ‘Target duty’. R (A) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696 [2019] 1 WLR 2979 at §§27, 44, 49, 51 (statutory duty to promote comprehensive health service a “target duty”); R (Sanneh) v Secretary of State for Work and Pensions [2017] UKSC 73 [2019] AC 845 at §§35, 43 (local authority statutory duty to promote the welfare of children in need in their area a “target duty”); R (Ahmad) v Newham LBC [2009] UKHL 14 [2009] 3 All ER 755 at §13 (discussing “target duties”); R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 at §§14, 87; R (OA) v London Borough of Bexley [2020] EWHC 1107 (Admin) at §48 (Children Act 1989 s.48 “a target duty which creates a discretion in a local authority to make a decision to meet an individual child’s assessed need”); R (Shaw) v Secretary of State for Education [2020] EWHC 2216 (Admin) at §176. 39.3.6 ‘General duty’. Simone v Chancellor of the Exchequer [2019] EWHC 2609 at §§81-82 (statutory duty a “general” duty, “not intended to give rise to an obligation owed to an individual, and enforceable in the courts, to take specific steps”); R (Taylor) v Secretary of State for Justice [2015] EWHC 3245 (Admin) [2016] PTSR 446 at §26 (local probation board not owing “a duty owed to an individual but a general duty to ensure that sufficient provision [is] made in respect of its area”); R (R) v Children and Family Court Advisory and Support Service [2012] EWCA Civ 853 [2013] 1 WLR 163 at §73 (“not … duties owed to individuals”, but “general public law powers and duties”); R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 (Children Act 1989 s.17(1) a “general duty”, not owed to and enforceable by each child individually), at §§83, 85, 91, 106, 114. 39.3.7 Wide or narrow discretion? {39.1.8} (power described as ‘unfettered’: meaning ‘at large’); R (JJ Management LLP) v HMRC [2020] EWCA Civ 784 [2020] 3 WLR 545 at §55 (Revenue’s “wide managerial discretion”); State of Mauritius v CT Power Ltd [2019] UKPC 27 at §63 (“very wide discretion” as to commercial negotiations); R (MacDonald) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 1783 (Admin) [2019] ACD 97 at §112 (“a broad discretion”); In re Loughlin [2017] UKSC 63 [2017] 1 WLR 3963 at §31 (DPP’s assessment of the public interest an “open-ended deliberation”); R (Electoral Commission) v Westminster Magistrates’ Court [2010] UKSC 40 [2011] 1 AC 496 (SC divided as to width and nature of forfeiture power), [107] (key questions as to width and nature of statutory discretion); R v Comptroller-General of Patents Designs & Trade Marks, ex p Gist-Brocades [1986] 1 WLR 51 (HL divided as to whether comptroller having a “wide” discretion (see 62A-B, 63A-B) or not (68F-70C)); R v Tower Hamlets LBC, ex p Chetnik Developments Ltd [1988] AC 858, 877D-E (narrow discretion); R v Wilson, ex p Williamson [1996] COD 42 (narrow discretion); R v Warwickshire County Council, ex p Powergen [1997] 3 PLR 62 (in the circumstances, only one option reasonably open); {13.3} (restraint and discretion/judgment); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 632A (Lord Wilberforce: “very wide powers”), 636G (Lord Diplock: “a wide managerial discretion”); 651A (Lord Scarman: “very considerable discretion in the exercise of their powers”). 39.3.8 Parallel powers/alternative powers. R (KBR Inc) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin) [2019] QB 675 at §93 (Director’s parallel powers); R (Merida Oil Traders Ltd) v Central Criminal Court [2017] EWHC 747 (Admin) [2017] 1 WLR 3680 at §62 (alternative power was not available here); National Crime Agency v Simkus [2016] EWHC 255 (Admin) [2016] 1 WLR 3481 at §105 (Edis J: “Where Parliament provides two different procedures which are available to the state in respect of the same subject matter …, it is for the state to choose which to use”); Sharp v North Essex Magistrates’ Court [2017] EWCA Civ 1143 [2017] 1 WLR 3789 (Environment Agency’s alternative powers); Cusack 565

PARAMETERS OF JUDICIAL REVIEW

v Harrow LBC [2013] UKSC 40 [2013] 1 WLR 2022 at §27 (local authority’s alternative powers); R (IM (Nigeria)) v SSHD [2013] EWCA Civ 1561 [2014] 1 WLR 1870 (parallel powers of mental health detention pending removal). 39.3.9 Statutory formulae: ‘may’. J P Whitter (Water Well Engineers) Ltd v HMRC [2018] UKSC 31 [2018] 1 WLR 3117 at §8 (Lord Carnwath: “the word ‘may’ … imports an element of discretion, by contrast with … mandatory words”); Superintendent of Prisons v Hamilton [2016] UKPC 23 at §22 (“may” normally constituting “a reliable indication of the creation of a discretion”); R (Hargrave) v Stroud District Council [2002] EWCA Civ 1281 [2002] 3 PLR 115 at §14 (“‘may’ gives the authority a discretion, even in a case where the condition precedent is fulfilled, not to embark on the statutory process”); Holgate-Mohammed v Duke [1984] AC 437, 443B (prima facie, “may” denotes “an executive discretion … the lawfulness of [which] … cannot be questioned in any court of law except upon those principles [in Wednesbury]”); R v Secretary of State for the Environment, ex p Rose Theatre Trust Co [1990] 1 QB 504, 513F (referring to “cases where the draftsman has used ‘may’ when he meant ‘shall’”); R v Commissioners of Inland Revenue, ex p Newfields Developments Ltd [2001] UKHL 27 [2001] 1 WLR 1111 (Inland Revenue having a duty and not a discretion, even though statute saying “may”, especially given that person who would exercise the discretion was not identified) at §22 (“may” expressing “conditionality”: ie. that tax relief only applicable if conditions met), §43 (“may” being used to reflect fact that different possible outcomes); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 563C; Singh (Pargan) v SSHD [1992] 1 WLR 1052, 1056F-G (statutory power framed under the permissive “may”, nevertheless interpreted as a duty). 39.3.10 Statutory formulae: ‘shall’. Grunwick Processing Laboratories Ltd v Advisory Conciliation & Arbitration Service [1978] AC 655, 698H (Lord Salmon: “Prima facie the word ‘shall’ suggests that it is mandatory but that word has often been rightly construed as being directory. Everything turns upon the context in which it is used – the subject matter, the purpose and effect of the section in which it appears”); London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 201H (“the word ‘shall’ … is normally to be interpreted as connoting a mandatory provision, meaning that what is thereby enjoined is not merely desired to be done but must be done”); R v Immigration Appeal Tribunal, ex p Jeyeanthan [2000] 1 WLR 354, 358H (Lord Woolf MR: “The requirement is never intended to be optional if a word such as ‘shall’ or ‘must’ is used”), 360C-E (“the word ‘shall’ is normally inserted to show that something is required to be done” but “more important is to focus on the consequences of non-compliance”); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] STC 1500, 1521e-g (“shall pay” meaning duty to pay forthwith; no room for general power to defer payment); R v City of Westminster Housing Benefit Review Board, ex p Mehanne [2001] UKHL 11 [2001] 1 WLR 539 at §13 (“shall” reduce the eligible rent (in the regulations) leaving a discretion as to the amount of any reduction); Paul Okello v SSHD [1995] Imm AR 269, 272 (treating “should” as mandatory). 39.3.11 Statutory formulae: ‘appears’. R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 at §55 (matter not purely subjective even though statute stating “it appears to him that”); Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 634D-E, 631C-D and 635G-H (considering approach in relation to the power to make a removal order “if it appears to him” that the person had entered and remained unlawfully); R v Secretary of State for Health, ex p United States Tobacco International Inc [1992] QB 353, 372D (duty to “consult such organisations as appear to him to be representative of interests substantially affected by the proposal”, treated as a duty to consult an organisation which “clearly … would be substantially affected”); R v SSHD, ex p McQuillan [1995] 4 All ER 400, 422C (“in the ordinary way … the courts would enforce rigorously the requirement that the Secretary of State is to take into account ‘everything which appears to him to be relevant’ so as to ensure that nothing of real relevance is discounted by the Secretary of State solely because it appears to him not to be relevant”); R v Lambeth LBC, ex p N [1996] ELR 299 (statutory phrase “shall consult such persons as appear to them to be appropriate”; here, parents particularly important consultees). 566

P39 Discretion/duty

39.3.12 Statutory formulae: ‘satisfied’. R (Hassan) v SSHD [2019] EWHC 1288 (Admin) at §§96-101 (“satisfied” involving judgment attracting irrationality standard), §116 (heightened scrutiny in context of refusal of citizenship); Al Jedda v SSHD [2013] UKSC 62 [2014] AC 252 at §30 (“satisfied” in relation to “a fact does not enlarge or otherwise alter the nature of the fact”); Office of Fair Trading v IBA Health Ltd [2004] EWCA Civ 142 [2004] 4 All ER 1103 at §45 (statutory phrase “is satisfied” means court must inquire as to whether belief was “reasonable and objectively justified by relevant facts”); R v Diggines, ex p Rahmani [1986] AC 475, 482B (“satisfied”, but nevertheless: “The question for the House is therefore: do the facts of this case meet the conditions required by the rule to be met for the exercise by the adjudicator of the power”); R v SSHD, ex p Fatima [1986] 1 AC 527; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1047C-E (speaking of “is satisfied”: “If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge”); Din (Taj) v Wandsworth LBC [1983] 1 AC 657, 664H (Lord Wilberforce: “The words ‘are satisfied’ … leave the decision, on these issues of fact, to the local authority. On well-known principle, there is no appeal to a court against such a decision, but it may be subject to ‘judicial review’ for error in law including no doubt absence of any material on which the decision could reasonably be reached”). 39.3.13 Statutory formulae: ‘thinks’/‘considers’ appropriate/fit/necessary. In re Loughlin [2017] UKSC 63 [2017] 1 WLR 3963 at §10 (statutory formula: “thinks it is in the interests of justice to do so”), §13 (not requiring decision-maker to be satisfied, applying a “necessity” test, “required” by the interests of justice); R v City of Westminster Housing Benefit Review Board, ex p Mehanne [2001] UKHL 11 [2001] 1 WLR 539 at §13 (referring to the phrase “as it considers appropriate” as being “the language of discretion”); R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 at §15 (Lord Nicholls, discussing the phrase “consider appropriate”); R (MacDonald) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 1783 (Admin) [2019] ACD 97 at §112 (“thinks fit” connoting “a broad discretion”); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 533D (Lord Keith: “the discretion of the Secretary of State whether, and when, to publish the report, must be exercised by him (and not at the dictation of another Minister or body) by reference to relevant and not irrelevant considerations and in a manner which is not unreasonable, in the Wednesbury sense”); Newbury District Council v Secretary of State for the Environment [1981] AC 578; R (A) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696 [2019] 1 WLR 2979 at §§12-13 (statutory duty to make provision “to such extent as [the authority] considers necessary”), §62 (“the Secretary of State was … entitled to exercise her judgment as to what was necessary”). 39.3.14 Statutory formulae: ‘belief’/‘believes’/‘opinion’. Office of Fair Trading v IBA Health Ltd [2004] EWCA Civ 142 [2004] 4 All ER 1103 at §45 (CA treating “believes” as involving that: “the belief must be reasonable and objectively justified by relevant facts”); R v Commission for Racial Equality, ex p Hillingdon LBC [1982] AC 779, 791C (Lord Diplock, asking whether “material … sufficient to raise in the minds of reasonable men, possessed of the experience … that has been acquired by the commission, [the relevant] suspicion”); R (Berkeley Burke SIPP Administration Ltd) v Financial Ombudsman Service Ltd [2018] EWHC 2878 (Admin) [2019] Bus LR 437 at §80 (“in the opinion of the ombudsman” in the statute allows ombudsman to be “subjective” and connotes a “wide latitude”); R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3 [2010] 1 AC 410 at §39 (statute requiring Police Commissioner’s “opinion” as to disclosure of information; but Court deciding correct approach in the light of Art 8); R v Eastleigh Borough Council, ex p Betts [1983] 2 AC 613, 626D-H and 628G.

567

PARAMETERS OF JUDICIAL REVIEW

39.3.15 Statutory formulae: ‘reasonable cause’/‘reasonable grounds’. Nakkuda Ali v Jayaratne [1951] AC 66, 76-77 (treating the formula ‘where the body with reasonable cause/ grounds’ as connoting a precedent fact); R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 1011B-C (Lord Diplock: “These words appearing in a statute do not make conclusive the officer’s own honest opinion, that he has reasonable cause for the prescribed belief. The grounds on which the officer acted must be sufficient to induce in a reasonable person the required belief”); and see 1000D (Lord Wilberforce); Holgate-Mohammed v Duke [1984] AC 437, 442F (Lord Diplock: “reasonable cause” as “a condition precedent to a constable’s having any power lawfully to arrest a person. … Whether he had reasonable cause is a question of fact for the court to determine”); Raymond v Honey [1983] 1 AC 1, 9H-10A, 13D-E (“reason to suppose” treated as precedent fact); R v Leeds Crown Court, ex p Quirk & Khan [1994] COD 287 (asking whether unreasonable conclusion as to whether “good and sufficient cause”); A v B Bank (Governor and Company of the Bank of England Intervening) [1993] QB 311, 326B-327G (such documents as the BoE “may reasonably require” treated as a matter for the Bank of England’s judgment); R v Director General of Telecommunications, ex p Cellcom Ltd [1999] ECC 314 at §24 (question whether a demand “reasonable” under the statutory phrase “such telecommunication services as satisfy all reasonable demands for them” as an objective question for the Court).

568

P40 Inalienability. Public authorities’ essential powers and duties are to be respected, preserved and not compromised. 40.1 Preservation of powers and duties 40.2 Inalienability and legitimate expectation

40.1 Preservation of powers and duties. Ensuring that the proper lawful function of a public authority is protected, preserved and maintained is a public law imperative. Courts resist the prospect of allowing, or requiring, action which is incompatible with the continuing duties or powers of a public authority. That means, for example, that power must not be surrendered, requiring that the public authority: (1) keep an open mind; (2) make up its own mind; and (3) have the capacity to change its mind. A public authority should not allow its function to be compromised, nor compromise the function of another public authority. 40.1.1 Inalienability of powers and duties: Birkdale. Birkdale District Electricity Supply Co Ltd v Southport Corporation [1926] AC 355, 364 (Lord Birkenhead, referring to the “well established principle of law, that if a person or public body is entrusted by the Legislature with certain powers and duties expressly or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties”), cited in R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299, 308; R v Greater London Council, ex p Burgess [1978] ICR 991, 992G; R (Nadarajah) v SSHD [2005] EWCA Civ 1363 at §49. 40.1.2 Inalienability: keeping an open mind. Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] AC 754, 768F (Lord Roskill: “A local authority charged with the duty of enforcing the Shops Act 1950 cannot of course properly say that it will never carry out its statutory duty because of the expense involved in so doing. Were it to adopt that attitude, I do not doubt that its decision would be subject to judicial review on Wednesbury principles”); {P50} (abdication/fetter); {63.3.4} (apparent bias by predetermination). 40.1.3 Inalienability: making up its own mind. R (Hillingdon LBC) v Secretary of State for Transport [2020] EWCA Civ 1005 at §10 (on the correct interpretation of the legislation, Secretary of State was wrong to overturn local authority’s decision that impact assessment needed to be performed by it and could not be conducted by the developer), §73 (“the duty imposed upon the authority to take a decision on the merits is non-delegable and must be taken by the authority itself”); R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 321h (Sedley J, referring to the “important principle: that the decision of a body … will be struck down if its outcome has been predetermined whether by the adoption of an inflexible policy or by the effective surrender of the body’s independent judgment”); R v Police Complaints Board, ex p Madden [1983] 1 WLR 447 (wrongly treating Secretary of State’s guidance as binding); {50.2.1} (abdication: the ‘puppet’); {50.2.2} (abdication: ‘rubber-stamping’); {50.3} (improper delegation). 40.1.4 Inalienability: the ability/capacity to change its mind/policy. Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1073G-H (Lord Russell: “There was no obligation whatever in law on the local authority to implement its 1975 proposals, albeit they had been approved by the Secretary of State. Prima facie the local authority was within its rights and duties to change its mind”); R (Hargrave) v Stroud District Council [2002] EWCA Civ 1281 [2002] 3 PLR 115 (council having power to withdraw footpath diversion order) at §19 (“no reason why, other things being equal, they should not change their mind”); Attorney-General of Trinidad and Tobago v Phillip [1995] 1 AC 396 (no power to give prospective pardon); {40.2} (inalienability and legitimate expectation);

PARAMETERS OF JUDICIAL REVIEW

R (Munir) v SSHD [2012] UKSC 32 (Secretary of State entitled to change concessionary immigration policy, as to decisions outside the immigration rules, without laying before Parliament as rules); R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 at §41 (referring to “the entitlement of central government to formulate and re-formulate policy”); MO (Nigeria) v SSHD [2009] UKHL 25 [2009] 1 WLR 1230 (change in immigration rules applicable to pending applications); In re Findlay [1985] AC 318, 338E-F (prisoner entitled to consideration “in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute”); R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2003] UKHRR 76 at §82 (legitimate expectation “is not that the policy or practice will necessarily remain unchanged”); Hughes v Department of Health and Social Security [1985] AC 776, 788A-C (“Administrative policies may change with changing circumstances. … The liberty to make such changes is something that is inherent in our constitutional form of government. When a change in administrative policy takes place and is communicated in a departmental circular … any reasonable expectations that may have been aroused … by any previous circular are destroyed and are replaced”), considered in R v SSHD, ex p Pierson [1998] AC 539, 598B; R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, at §64 (public authority “cannot abdicate its general remit” and so must “remain free to change policy” so that “its undertakings are correspondingly open to modification or abandonment”); R v Secretary of State for Health, ex p United States Tobacco International Inc [1992] QB 353, 368E, 369B (“a Minister cannot fetter a discretion given him under statute. Providing he acts within his statutory powers, rationally and fairly, he is entitled to change his policy”), 372G; R (Cornwall Waste Forum St Dennis Branch) v Secretary of State for Communities and Local Government [2012] EWCA Civ 379 at §37 (representations reflecting “the circumstances as they were at the time they were made”; “nothing said then can be treated as a binding commitment as to the position … if circumstances changed, as they did”); {54.2} (unjustified breach of a substantive legitimate expectation). 40.1.5 Adherence to policy: departure for good reason. {6.2.6} (duty of adherence to policy guidance). 40.1.6 Allowing another public authority to make up its own mind: puppeteers. {50.2.3} (dictation/procured-abdication: the ‘puppeteer’). 40.1.7 Remedy on judicial review: not fettering the public authority. {24.4.25} (avoiding remedy that would fetter the defendant).

40.2 Inalienability and legitimate expectation. The principle that a public authority’s continuing functions (powers and duties) should not be compromised can collide with the same public authority’s duties to act fairly and reasonably. A classic illustration is where the claimant relies on a legitimate expectation (or estoppel), and in response the defendant public body invokes the inalienability of its powers and duties (including the duty not to exceed its powers) as releasing it from any such constraint. 40.2.1 Legitimate expectation: wrong view of the law. R (Alliance of Turkish Businesspeople Ltd) v SSHD [2020] EWCA Civ 553 [2020] 1 WLR 2436 at §49 (rejecting the submission that “it is extremely difficult to build a legitimate expectation on a wrong view of the law”); R (Aozora GMAC Investment Ltd) v HMRC [2019] EWCA Civ 1643 [2020] 1 All ER 803 at §31 (although “HMRC apply the law but do not make the law”, legitimate expectation capable of arising from HMRC “statement … in published guidance as to what the law is”), §52 (to “hold HMRC to a view of the law that HMRC has expressed but which they now believe to be wrong, it is necessary for [the claimant] to show a high degree of unfairness arising in its particular circumstances in order to override the public interest in HMRC collecting taxes in accordance with a correct interpretation of the law”). 40.2.2 Legitimate expectation: applying the law correctly. R (Hely-Hutchinson) v HMRC [2017] EWCA Civ 1075 [2018] 1 WLR 1682 at §44 (substantive legitimate expectation “can in an appropriate case prevent a public body, including HMRC, from applying the law 570

P40 Inalienability

correctly where to do so would frustrate the claimant’s expectation”, but “there are likely to be few cases where a taxpayer can plausibly claim that a representation made in general material … is so clear and unqualified that the taxpayer is entitled to rely on it and to be taxed otherwise than in accordance with the law”, citing Samarkand Film Partnership No 3 v HMRC [2017] EWCA Civ 77 [2017] STC 926 (Henderson LJ) at §115). 40.2.3 Legitimate expectation: conflict with statute/circumscribed by the law.99 United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17 [2016] 1 WLR 3383 at §38 (Lord Neuberger: “the [legitimate expectation] principle cannot be invoked if, or to the extent that, it would interfere with the public body’s statutory duty”); R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929 at §39 (legitimate expectation that published policy to be operated, unless implementation interferes with other statutory duties); Rainbow Insurance Co Ltd v Financial Services Commission [2015] UKPC 15 at §52 (“nobody can have a legitimate expectation that he will be entitled to an ultra vires relaxation of a statutory requirement”); SSHD v JS (Uganda) [2019] EWCA Civ 1670 [2020] 1 WLR 43 at §185 (even if claimant demonstrated legitimate expectation, “he would still have no answer to the true construction [of the Refugee Convention] and his claim would be bound to fail”); R (Dickinson) v HMRC [2018] EWCA Civ 2798 [2019] 4 WLR 22 at §§48-49 (new statutory provisions important but leaving discretionary power as to whether to maintain previous agreement); R (Patel) v General Medical Council [2013] EWCA Civ 327 [2013] 1 WLR 327 at §55 (no “incompatibility between the principle of legitimate expectation and the statutory duty arises in the particular circumstances of this case”); R (Albert Court Residents’ Association) v Westminster City Council [2011] EWCA Civ 430 [2012] PTSR 604 at §35 (“an otherwise legitimate expectation cannot require a public authority to act contrary to statute”); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 at §§100, 102 (albeit “unjust”, the “orthodox English domestic law does not allow the individual to retain the benefit which is the subject of the legitimate expectation, however strong, if creating or maintaining that benefit is beyond the power of the public body”), §§115-120 (discussing Professor Craig’s critique of the orthodox position), §136 (Mance LJ, referring to Stretch v West Dorset District Council (1997) 96 LGR 637 as reflecting the orthodox position); R (Bibi) v Newham LBC [2001] EWCA Civ 607 [2002] 1 WLR 237 at §46; R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1125D (“any expectation must yield to the terms of the statute under which the Secretary of State is required to Act”), 1129E; R v DPP, ex p Kebilene [2000] 2 AC 326, 368E (legitimate expectation rejected as contrary to “clear statutory intent” and “contradicted by the language of the statute”); Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 638F (“when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty”). 40.2.4 Legitimate expectation: circumscribed by law: other cases. R (Sovio Wines Ltd) v Food Standards Agency [2009] EWHC 382 (Admin) at §95 (“any legitimate expectation must yield to the agency’s statutory duties”); R (Beale) v Camden LBC [2004] EWHC 6 (Admin) [2004] LGR 291 at §22 (“Statements by ministers as to what the law is are no more determinative of the citizen’s rights than similar statements by anyone else. … If it is correct it adds nothing: if it is incorrect it is for present purposes irrelevant”); R (Aggregate Industries UK Ltd) v English Nature [2002] EWHC 908 (Admin) [2003] Env LR 83 at §117 (“Any legitimate expectation must yield to the terms of any statute”); R v Environment Agency, ex p Anglian Water Services Ltd [2002] EWCA Civ 5 at §33 (legitimate expectation could not predispose defendant to an outcome, given statutory duty to decide a dispute evenhandedly); R (AP) v Leeds Youth Court [2001] EWHC 215 (Admin) (“There cannot be a legitimate expectation that a court will act illegally”); R (Theophilus) v London Borough of Lewisham

99The

equivalent paragraph in a previous edition was relied on in Donnelly’s Application [2011] NIQB 94 at §26 (Treacy J); R (Jackley) v Secretary of State for Justice [2015] EWHC 342 (Admin) at §43 (Lang J).

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[2002] EWHC 1371 (Admin) [2002] 3 All ER 851 at §17 (no legitimate expectation if no power to provide student support); R v Staffordshire Moorlands District Council, ex p Bartlam (1999) 77 P & CR 210 (disappointment of the legitimate expectation could not give the claimant “a right, in effect, to override the provisions of the [Order]”); R v Leicester City Council, ex p Powergen [1999] 4 PLR 91, 102E (planning officers having no delegated authority to vary or waive a planning condition, so no legitimate expectation arising as to the meaning which the council would give to the condition); R v Gaming Board of Great Britain, ex p Kingsley [1996] COD 241 (no legitimate expectation that decision-maker would decline to take known material matters into account, since this would breach its statutory duty); R v Inland Revenue Commissioners, ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1566H, 1567E-F, 1568D-E, 1569B, 1574F-G. 40.2.5 Legitimate expectation protected by A1P1. {59.9.3} 40.2.6 Legitimate expectation: unreasonable representation. R (C) v Stratford Magistrates’ Court [2012] EWHC 154 (Admin) at §20 (no legitimate expectation arising from magistrates’ clear representation as to sentencing if “perverse”); R (White) v Barking Magistrates’ Court [2004] EWHC 417 (Admin) at §32 (magistrates’ sentencing indication giving rise to a legitimate expectation but judicial review refused because no reasonable bench of magistrates could have acted as indicated). 40.2.7 Legitimate expectation: correcting a mistake. SSHD v JS (Uganda) [2019] EWCA Civ 1670 [2020] 1 WLR 43 at §90 (“Where an administrative decision has been made on a mistaken premise, the decision can be revisited so that the law is properly applied, unless it would be unjust to allow this”); R (Hely-Hutchinson) v HMRC [2017] EWCA Civ 1075 [2018] 1 WLR 1682 at §48 (Arden LJ: “while it [is] generally desirable that decision-makers should act in a broadly consistent manner, a decision-maker (whether administrative or judicial) is not bound, and is not entitled, to follow a previous decision that he consider[s] erroneous”, citing R (O’Brien) v Independent Assessor [2007] UKHL 10 [2007] 2 AC 312 (Lord Bingham) at §30), §63, §§57, 62 (describing “the exception to the normal requirement for decision-makers to act consistently where the decision-maker had previously acted under a mistake as to the law”), §72 (“it is well established that it is open to a public body to change a policy if it has acted under a mistake. The decision whether or not to do so is not reviewed for its compatibility in the public interest: the question is whether or not there has been sufficient unfairness to prevent correction of the mistake. It is clear from the authorities that the unfairness has to reach a very high level”); R (Capital Care Services (UK) Ltd) v SSHD [2012] EWCA Civ 1151 (no legitimate expectation preventing revocation of licence granted by mistake); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 at §96 (“Courts should be slow to fix a public authority permanently with the consequences of a mistake …, particularly when it would deprive the public of their rights”); R (Thompson) v SSHD [2003] EWHC 538 (Admin) at §49 (here “not possible to found a legitimate expectation on the mistaken statement of an official, in circumstances where the reality is that a statutory provision operates”); R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1127B-D (“Where the court is satisfied that a mistake was made by the minister or other person making the statement, the court should be slow to fix the public authority permanently with the consequences of that mistake”; depends whether in all the circumstances unfairness amounting to an abuse of power), 1131E-F, 1133H; R v Inland Revenue Commissioners, ex p Matrix-Securities Ltd [1994] 1 WLR 334, 346G-H (“It is one thing to hold the revenue to a clearance that has been acted upon in good faith, but quite another to permit the correction of an error before it has been acted upon”). 40.2.8 Legitimate expectation: honouring promises where compatible with its functions. R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299, 308E-F (body not entitled to “give an undertaking and break it as they please. So long as the performance of the undertaking is compatible with their public duty, they must honour it”, cited in Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 637H), 311A-D (Roskill LJ); R v Westminster City Council, ex p Union of Managerial and Professional 572

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Officers [2000] LGR 611, 626c-g (legitimate expectation “must be subject to the council being satisfied that it had the legal power” to honour the expectation). 40.2.9 Legitimate expectation: the ability to change its mind/policy. {40.1.4} (inalienability: the ability/capacity to change its mind/policy). 40.2.10 Legitimate expectation: adherence to policy and departure for good reason. {6.2.6} (duty of adherence to policy guidance. 40.2.11 Substantive unfairness and inalienability problems. {P54} (substantive unfairness); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835 (HL asking whether Revenue’s conduct an abuse of power in public law terms), 862B-C (“no remedy against the commissioners for breach of contract or breach of representations”, “because the commissioners could not in 1978 bind themselves not to perform in 1982 the statutory duty of counteracting a tax advantage”); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681 (Revenue having a general duty to enforce tax legislation, but nevertheless substantively unfair so as to be an abuse of power). 40.2.12 Inalienability and estoppel. London Borough of Tower Hamlets v Sherwood [2002] EWCA Civ 229 at §§68-69 (“estoppel will not lie to oblige a public authority to do something which is beyond its powers or to fetter or prevent it from carrying out its statutory duties or powers”); R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8 [2003] 1 WLR 348 at §35 (describing the reconciliation of “invocations of estoppel with the general principle that a public authority cannot be estopped from exercising a statutory discretion or performing a public duty”); R v SSHD, ex p Naheed Ejaz [1994] QB 496, 504C-E (“The Secretary of State cannot, by mistaking his own powers, enlarge them beyond what Parliament has granted and he cannot be estopped from asserting that he lacked the necessary power, if that be the case”), 507F (“estoppel cannot be invoked to give a minister or authority powers which he or it does not in law possess”); Rhyl Urban District Council v Rhyl Amusements Ltd [1959] 1 WLR 465, 474 (“a plea of estoppel cannot prevail as an answer to a claim that something done by a statutory body is ultra vires”); R (Capital Care Services (UK) Ltd) v SSHD [2012] EWCA Civ 1151 (no estoppel preventing revocation of licence granted by mistake); Laker Airways Ltd v Department of Trade [1977] QB 643, 728D-F (“Estoppel cannot be allowed to hinder the formation of government policy”); Rootkin v Kent County Council [1981] 1 WLR 1186 (no estoppel because entitled to correct a mistake); {41.1.13} (relationship between estoppel and legitimate expectation); {54.1.21} (estoppel and public authorities: available in principle); {54.1.22} (estoppel and public authorities: a cautious approach). 40.2.13 Inalienability and agreement: ultra vires as a defence to contract claim. {27.2.9} (‘public law’ unlawfulness as a defence to a claim in contract against public authority).

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P41 Legitimate expectation. A public authority’s clear promise or practice may engender a procedural or substantive expectation protected from being unfairly or unjustifiably defeated. 41.1 The role of legitimate expectation 41.2 Anatomy of a legitimate expectation

41.1 The role of legitimate expectation.100 The concept of a ‘legitimate expectation’ identifies a protected interest, engendered by the public authority’s representations or conduct, which it can be unlawful for the public authority to defeat (depart from). A legitimate expectation may be procedural or substantive. Substantive legitimate expectations are one way of identifying whether public authority action is in law substantively unjustified, invoking a proportionality test. Procedural legitimate expectations are one way of identifying whether public authority action is in law procedurally unfair. 41.1.1 Legitimate expectation: general principles. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §62 (Lord Kerr: “where a clear and unambiguous undertaking has been made, the authority giving the 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 (Hely-Hutchinson) v HMRC [2017] EWCA Civ 1075 [2018] 1 WLR 1682 at §36 (Arden LJ, describing “the general principles relating to legitimate expectation” as having been summarised in the following passage in United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17 [2016] 1 WLR 3383 at §§37-38 (Lord Neuberger): “In the broadest of terms, the principle of legitimate expectation is based on the proposition that, where a public body states that it will do (or not do) something, a person who has reasonably relied on the statement should, in the absence of good reasons, be entitled to rely on the statement and enforce it through the courts. Some points are plain. First, in order to found a claim based on the principle, it is clear that the statement in question must be ‘clear, unambiguous and devoid of relevant qualification’. … Secondly, the principle cannot be invoked if, or to the extent that, it would interfere with the public body’s statutory duty. … Thirdly, however much a person is entitled to say that a statement by a public body gave rise to a legitimate expectation on his part, circumstances may arise where it becomes inappropriate to permit that person to invoke the principle to enforce the public body to comply with the statement. This third point can often be elided with the second point, but it can go wider: for instance, if, taking into account the fact that the principle applies and all other relevant circumstances, a public body could, or a fortiori should, reasonably decide not to comply with the statement”). 41.1.2 Legitimate expectation and the rule of law. Rainbow Insurance Co Ltd v Financial Services Commission [2015] UKPC 15 at §51 (Lord Hodge: “The courts have developed the principle of legitimate expectation as part of administrative law to protect persons from gross unfairness or abuse of power by a public authority. The constitutional principle of the rule of law underpins the protection of legitimate expectations as it prohibits the arbitrary use of power by public authorities”); {1.2} (judicial review and the rule of law). 41.1.3 Legitimate expectation and good administration.101 R (Nadarajah) v SSHD [2005] EWCA Civ 1363 at §68 (describing legitimate expectation as “a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with 100The

equivalent paragraph in a previous edition was relied on in Mastercard UK MFL v Office of Fair Trading [2006] CAT 14 at §36. 101The equivalent paragraph in a previous edition was relied on in K2 (Northwest) v HMRC [2018] UKFTT 304 at §51 (Judge Christopher McNall).

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the public”), §69 (“This approach makes no distinction between procedural and substantive expectations. Nor should it. The dichotomy between procedure and substance has nothing to say about the reach of the duty of good administration”), cited in Mandalia v SSHD [2015] UKSC 59 [2015] 1 WLR 4546 at §29, and in Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §59, 72. 41.1.4 Legitimate expectations featuring in the law alongside rights. Innospec Ltd v Walker [2017] UKSC 47 [2017] ICR 1077 at §24 (describing the protection of “legitimate expectations” by ensuring legal certainty as the policy behind the presumption against retrospective effect); Attorney General v Marquis of Ailesbury (1887) 12 App Cas 672 (a probate case) at 690 (Lord Macnaghten, speaking of a statutory presumption that “the Legislature did not intend to interfere with any legal rights or legitimate expectations of any persons whatsoever”, citing James LJ in In re Barker 17 Ch D 241); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 412B-C (civil servant having no employment “right enforceable by him in private law; at most it can only be a legitimate expectation”), 401A (albeit “no legal right” in private law, individual “may have a legitimate expectation of receiving [a] benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law”), 411G (fairness applying “where the decision is one which does not alter rights or obligations enforceable in private law but only deprives a person of legitimate expectations”); Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 636F (“legitimate expectations” described as “including expectations which go beyond enforceable legal rights”); In re Findlay [1985] AC 318, 338D-E (Lord Scarman: “a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the [permission] of the court to apply for judicial review”). 41.1.5 Procedural legitimate expectation. {61.1.16}-{61.1.21} 41.1.6 Legitimate expectation not a prerequisite: procedural unfairness/consultation duty. R (Dudley Metropolitan Borough Council) v Secretary of State for Communities and Local Government [2012] EWHC 1729 (Admin) at §47 (consultation duty arising from duty of fairness, not because of any promise or practice); R (Machi) v Legal Services Commission [2001] EWCA Civ 2010 [2002] 1 WLR 983 at §31 (referring to an issue “of procedural fairness” which “gains nothing by being cast in terms of legitimate expectation”); R v Birmingham City Council, ex p Dredger (1994) 6 Admin LR 553, 566H-572C (treating as independent questions, whether a right of consultation via (a) legitimate expectation or (b) procedural fairness); R v Secretary of State for Education, ex p London Borough of Southwark [1995] ELR 308, 320F (there are “plainly circumstances beyond those where there was a clear promise or practice of consultation … in which principle requires that a party affected by a forthcoming decision should be told about the decision-maker’s provisional view, and thus consulted”); R v SSHD, ex p Duggan [1994] 3 All ER 277 (legitimate expectation argument rejected, but natural justice argument accepted); Manning v Ramjohn [2011] UKPC 20 at §48 (referring to the “expectation of being fairly treated”); {P61} (procedural unfairness}; {62.2} (trigger for a consultation duty). 41.1.7 Substantive legitimate expectation. {54.2} (unjustified breach of a substantive legitimate expectation); {54.2.5} (SLE: a governing legal criterion distinct from reasonableness); {54.2.6} (substantive legitimate expectation: proportionality test (justifying the impact on the legitimate expectations)). 41.1.8 Overlap between substantive unfairness and substantive legitimate expectation. {54.1.19} 41.1.9 Legitimate expectation involves hard-edged questions. {P16} (hard-edged questions); R (Lichfield Securities Ltd) v Lichfield District Council [2001] EWCA Civ 304 [2001] 3 PLR 33 at §19 (Sedley LJ: “legitimate expectation is an aspect of fairness and … fairness is a matter of law for the court”); Re Finucane’s application for judicial review [2019]

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UKSC 7 [2019] 3 All ER 191 at §62 (Lord Kerr: “where a clear and unambiguous undertaking has been made, the authority giving the 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”); {41.2.17} (legitimate expectation: an objective approach). 41.1.10 Legitimate expectation as a relevancy. {56.1.10} 41.1.11 Inalienability and legitimate expectation. {40.2} 41.1.12 Legitimate expectation: related principles. {54.1.21} (estoppel and public authorities: available in principle); {54.1.22} (estoppel and public authorities: a cautious approach); {41.1.13} (relationship between estoppel and legitimate expectation); {65.1.3} (proceedings in defendant court/forum vitiated by abuse of process); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 61F (“there is a clear public interest to be observed in holding officials of the state to promises made by them in full understanding of what is entailed”), 74D-E (approving R v Croydon Justices, ex p Dean [1993] QB 769); Attorney-General of Trinidad and Tobago v Phillip [1995] 1 AC 396, 412E-F (“it is important that the state should not be able to resile from the terms of [a] pardon except in the most limited of circumstances”), 417D-F; {P54} (substantive unfairness); In re Findlay [1985] AC 318, 338D-E (Lord Scarman: “a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the [permission] of the court to apply for judicial review”). 41.1.13 Relationship between estoppel and legitimate expectation. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8 [2003] 1 WLR 348 at §34 (Lord Hoffmann: “There is … an analogy between a private law estoppel and the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power. … But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote”), §35 (“in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet”), applied in South Bucks District Council v Flanagan [2002] EWCA Civ 690 [2002] 1 WLR 2601; R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 at §44 (Lord Hoffmann, discussing legitimate expectation based on an alleged representation: “The question is not whether it would have founded an estoppel in private law but the broader question of whether, as Simon Brown LJ said in [Unilever], a public authority acting contrary to the representation would be acting ‘with conspicuous unfairness’ and in that sense abusing its power”); Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWCA Civ 983 [2002] 4 PLR 108 (both legitimate expectation and estoppel only capable in exceptional circumstances to override planning requirements of the statutory code); R v Northamptonshire County Council, ex p Commission for the New Towns [1992] COD 123 (doctrine of estoppel not sufficient by itself, but supporting legitimate expectation); R v Devon County Council, ex p Baker [1995] 1 All ER 73, 88g (cases where legitimate expectation “is akin to an estoppel”); R v Ministry for Agriculture Fisheries & Food, ex p Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714, 725h (legitimate expectation not “another name for estoppel. It is precisely because public authorities have public duties to perform that they can no more be estopped from performing them than they can contract out of them”), but 731g (substantive legitimate expectation “is as near as public law is able to approach to estoppel”); R v Jockey Club, ex p RAM Racecourses [1993] 2 All ER 225, 236h (“many similarities with the principles of estoppel in private law”). 41.1.14 Conduct constituting a formal decision. Minister of Energy and Energy Affairs v Maharaj [2020] UKPC 13 at §§43, 63 (“de facto licences” arising “by virtue of legitimate expectations based on … tendering and the Minister accepting licence fees”); R (A) v Coventry City Council [2009] EWHC 34 (Admin) [2009] 1 FCR 501 at §65 (council allowed proposed foster parent to believe she would receive financial support for looking after child), §66 (dealings meaning council to be taken to have exercised its statutory powers to fund child’s 576

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accommodation), §77 (even if this was not what was intended); {54.2.10} (holding the public authority to its binding determinations). 41.1.15 Legitimate expectation: protected by policy guidance. {6.2.6} (duty of adherence to policy guidance); R v Commissioners of Customs and Excise, ex p British Sky Broadcasting Group [2001] EWHC Admin 127 [2001] STC 437 at §§5-6 (describing the “Sheldon principle”, a 1978 extra-statutory concession that: “If a Customs and Excise officer, with the full facts before him, has given a clear and unequivocal ruling on VAT in writing or, knowing the full facts, has misled a registered person to his detriment, any assessment of VAT due will be based on the correct ruling from the date the error was brought to the registered person’s attention”). 41.1.16 Legitimate expectation: duty to give reasons for defeating legitimate expectation. {64.2.19} (reasons needed for ‘departure’: legitimate expectation). 41.1.17 Legitimate expectation: an attempted route to justiciable international law obligations. R v SSHD, ex p Ahmed [1999] Imm AR 22, 40 (recognising a legitimate expectation that Secretary of State would not, without reason, act inconsistently with ratified Convention); R v Uxbridge Magistrates’ Court, ex p Adimi [2001] QB 667, 686D, 690D-691D (treating ratification of UN Convention on Refugees as capable of giving rise to legitimate expectation that its provisions would be followed); R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2003] EWCA Civ 666 [2004] QB 811 (CA) at §51 (describing Adimi as “superficial” and “suspect”, not least because overlooking Chundawadra [1988] Imm AR 161 and Behluli [1998] Imm AR 407), §100 (“we must not be seduced by humanitarian claims to a spurious acceptance of a false source of law”) (HL is [2004] UKHL 55 [2005] 2 AC 1); Higgs v Minister of National Security [2000] 2 AC 228, 241E-G (“the existence of [an unincorporated] treaty may give rise to a legitimate expectation on the part of citizens that the government, in its acts affecting them, will observe the terms of the treaty. … [But] the legal effect of creating such a legitimate expectation is purely procedural. The executive cannot depart from the expected course of conduct unless it has given notice that [it] intends to do so and has given the person affected an opportunity to make representations”); R v Asfaw [2008] UKHL 31 [2008] 1 AC 1061 at §30 (where partially-effective statutory incorporation, no “legitimate expectation of being treated otherwise than in accordance with the … Act”); cf {6.3.6}-{6.3.7} (international law justiciable through policy guidance). 41.1.18 Legitimate expectation as a route to monetary remedy? R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWHC 1743 (Admin) at §42 (Collins J, rejecting the suggestion of a “novel” claim for “breach of common law rights”, being a hopeless “attempt to elevate a claimed legitimate expectation to become a right at common law”); R (Nurse Prescribers Ltd) v Secretary of State for Health [2004] EWHC 403 (Admin) at §82 (compensation “not available directly in judicial review proceedings arising out of a claim for disappointment of a legitimate expectation”); R v Commissioners of Customs and Excise, ex p F & I Services Ltd [2001] EWCA Civ 762 at §72 (Sedley LJ: “the unfairness which a change of policy may work on those who have relied on the earlier policy can often be adequately mitigated by … compensating them in money. The point, however, is that such a payment of money is not an anticipatory payment of damages: it is a practical means of eliminating unfairness”); R v Birmingham City Council, ex p L [2000] ELR 543 at §18 (if legitimate expectation had arisen, fact that defendant had offered compensation for expense caused would have made a finding of unfairness unlikely); R (Bibi) v Newham LBC [2001] EWCA Civ 607 [2002] 1 WLR 237 at §56 (“A further element for the Authority to bear in mind is the possibility of monetary compensation or assistance”; “a legitimate expectation may in some cases be appropriately taken into account by such a payment”); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 at §119 (referring to Professor Craig’s suggestion of compensation to person whose legitimate expectation defeasible because of objection to allowing an ultra vires representation to be binding). 577

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41.2 Anatomy of a legitimate expectation. Necessary features of a legitimate expectation are that it arises out of a sufficiently clear and relevantly unqualified promise or practice. Other features frequently, but not invariably, found include communication, reliance and detriment. 41.2.1 Procedural and substantive legitimate expectation: shared fundamental ingredients. R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §70 (“the fundamental ingredients of a legitimate expectation” as applicable in “a case concerning a procedural expectation”, “will be the same where there is asserted to be a substantive expectation”). 41.2.2 Two sources of a legitimate expectation: promise or practice. R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929 at §35 (Coulson LJ: “There are two different ways in which a legitimate expectation claim can arise. The expectation can be generated by an express promise. … Secondly, a legitimate expectation can be generated by a practice, even where there has been no promise or assurance”), §36 (“These two types of case are different”); R (Davies) v HMRC [2011] UKSC 47 [2011] 1 WLR 2625 (asking whether legitimate expectation arising from Revenue’s clear representations or settled practice); HMB Holdings Ltd v Antigua and Barbuda [2007] UKPC 37 at §31 (legitimate expectation claim fails “if the public body has done nothing or said nothing which can legitimately have generated the expectation that is contended for”); R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 at §29 (paradigm case of procedural legitimate expectation is where promise or practice of procedural step), §33 (substantive legitimate expectation needing “a promise or practice of present and future substantive policy”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 401B (“Legitimate … expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue”); R v Secretary of State for Education, ex p S [1994] ELR 252, 263B (although “growth in this area of the law has not … ceased”, legitimate expectation currently “based either on practice or on promise”); R (Begum) v Tower Hamlets LBC [2006] EWCA Civ 733 [2006] LGR 674 at §45 (“whether or not there is a relevant legitimate expectation depends on all the circumstances of the particular case”). 41.2.3 Legitimate expectation based on promise/representation: illustrations. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §62 (describing the situation “where a clear and unambiguous undertaking has been made”), §68 (here, “an unequivocal undertaking to hold a public inquiry”); R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929 (express promise in published policy, that reasons would be given for a class of decisions), §44 (legitimate expectation not capable of being defeated by new practice); R (McShane) v Secretary of State for Justice [2018] EWHC 2049 (Admin) [2018] ACD 110 at §100 (clear, unambiguous and unqualified representation in guide that would not repatriate a prisoner without their consent); R (Patel) v General Medical Council [2013] EWCA Civ 327 [2013] 1 WLR 327 at §48 (“the claimant received a clear, unequivocal and unqualified assurance”); Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32 [2012] 1 AC 1 at §30 (need for a clear representation, based on “how on a fair reading the promise would have been reasonably understood by those to whom it was made”); R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 (no sufficiently clear representation of general applicability of test case); R (HSMP Forum Ltd) v SSHD [2008] EWHC 664 (Admin) at §52 (clear representation, when read in context), §53 (absence of any qualification); R (HSMP Forum Ltd) v SSHD (No 2) [2008] EWHC 711 (Admin) at §48 (terms of programme read, in context and with relevant guidance and rules, as constituting a “clear representation”), §71 (“affecting a specific, well-defined group of people”); R (Merritt) v Peterborough Magistrates’ Court [2009] EWHC 467 (Admin) at §10 (“unequivocal assurance” by magistrates as to sentencing); R (H) v Guildford Youth Court [2008] EWHC 506 (Admin) (police promise 578

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to deal by final warning); R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) [2007] Env LR 623 (promise of the fullest public consultation); R v Swale Borough Council & Medway Ports Authority, ex p Royal Society for the Protection of Birds (1990) 2 Admin LR 790 (promise of consultation); R v London Borough of Tower Hamlets, ex p Tower Hamlets Combined Traders Association [1994] COD 325 (promise must be made with authority); R (Ganidagli) v SSHD [2001] EWHC Admin 70 (representation that asylum-seeker’s witness statement would stand as primary facts). 41.2.4 Legitimate expectation: implied representation can suffice. R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §37 (referring to “the principles of legitimate expectation derived from an express or implied promise”); R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §74 (“what is required is a promise although it need not be an express one as it may be implied”), §89 (no “express or implied representation” here). 41.2.5 Legitimate expectation based on practice/policy: illustrations. R (BAPIO Action Ltd) v SSHD [2008] UKHL 27 [2008] 1 AC 1003 at §60 (immigration rules and practice giving rise to a legitimate expectation, defeated by DoH guidance); R (Davies) v HMRC [2011] UKSC 47 [2011] 1 WLR 2625 (no settled practice) at §49 (need for “evidence that the practice was so unambiguous, so widespread, so well-established and so well-recognised was to carry with it a commitment … of treatment in accordance with it”); R (Swords) v Secretary of State for Communities and Local Government [2007] EWCA Civ 795 [2007] LGR 757 at §14 (legitimate expectation of consultation arising from practice under DPM Manual); R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2003] UKHRR 76 (legitimate expectation, arising from Government “practice”, that consideration would be given to diplomatic intervention), at §82 (legitimate expectation “a well-established and flexible means for giving legal effect to a settled policy or practice for the exercise of an administrative discretion”); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 at §68(1) (practice by navigation authorities), §73 (“regular and consistent practice” which “conduct” to “any objective observer” was “representing” nature of rights of navigation); Guerra v Baptiste [1996] 1 AC 397, 419C-F (“settled practice”); R (Corby District Council) v Secretary of State for Communities and Local Government [2007] EWHC 1873 (Admin) [2008] LGR 109 (unjustified departure from substantive legitimate expectation engendered by scheme as published); R (Asha Foundation) v Millennium Commission [2002] EWHC 916 (Admin) (Administrative Court) at §9 (guidelines giving rise to legitimate expectation of being “the rules of the competition”); R (Saadi) v SSHD [2001] EWCA Civ 1512 [2002] 1 WLR 356 (CA) at §7 (“The lawful exercise of [statutory] powers can … be restricted, according to established principles of public law, by government policy and the legitimate expectation to which such policy gives rise”); R v SSHD, ex p Asif Mahmood Khan [1984] 1 WLR 1337, 1352C-D (legitimate expectation from stated criteria); {6.2.6} (duty of adherence to policy guidance); {54.2} (unjustified breach of a substantive legitimate expectation); {62.2.6} (consultation trigger: practice). 41.2.6 Legitimate expectation: Schiemann LJ’s three basic questions. R (Bibi) v Newham LBC [2001] EWCA Civ 607 [2002] 1 WLR 237 at §19 (Schiemann LJ: “In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do”); applied in R (National Association of Guardians Ad Litem and Reporting Officers) v Children and Family Court Advisory and Support Service [2001] EWHC Admin 693 [2002] 1 FLR 255 at §44. 41.2.7 Legitimate expectation: conventional basic features. R v Jockey Club, ex p RAM Racecourses [1993] 2 All ER 225, 236h-237b (referring to the following features: “(1) A clear and unambiguous representation … (2) That since the [claimant] was not a person to whom any representation was directly made it was within the class of persons who are entitled to rely upon it; or at any rate that it was reasonable for the [claimant] to rely upon it without more … (3) That it did so rely upon it. (4) That it did so to its detriment … (5) That 579

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there is no overriding interest arising from [the defendant’s] duties and responsibilities”); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 693c-d (referring to: “first, that the [claimant] … must have put all his cards face upwards on the table, second, that the body concerned … made a representation which was clear, unambiguous and devoid of relevant qualification, third, that the [claimant] was within the class of people to whom the representation was made or that it was otherwise reasonable for him to rely upon it, and fourth, that the [claimant] did indeed rely upon it to his detriment”); R v Inland Revenue Commissioners, ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569E-1570B (basic features discussed). 41.2.8 No rigid preconditions. R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 690f (Sir Thomas Bingham MR: “The categories of unfairness are not closed, and precedent should act as a guide not a cage”); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 at §68(2) (“It is not always a condition for a legitimate expectation to arise that there should be a clear, unambiguous and unqualified representation by the public authority …: the test is whether the public authority has acted so unfairly that its conduct amounts to an abuse of power”); R (Bibi) v Newham LBC [2001] EWCA Civ 607 [2002] 1 WLR 237 at §27. 41.2.9 Promise: whether a clear, unambiguous and unqualified representation.102 R (Alliance of Turkish Businesspeople Ltd) v SSHD [2020] EWCA Civ 553 [2020] 1 WLR 2436 at §50 (“statement or representation … must be clear, unambiguous and devoid of relevant qualification”), §55 (no such statement or representation here); R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1004 at §61 (no clear and unambiguous promise); R (Aozora GMAC Investment Ltd) v HMRC [2019] EWCA Civ 1643 [2020] 1 All ER 803 at §28 (“there was a clear and unambiguous representation here on which taxpayers were entitled to rely”); MA (Pakistan) v SSHD [2019] EWCA Civ 1252 at §41 (no clear, unambiguous and unqualified representation); R (Maritime Heritage Foundation) v Secretary of State for Defence [2019] EWHC 2513 (Admin) [2019] ACD 140 (substantive legitimate expectation) at §71 (“no clear unambiguous representation devoid of qualification”); R (Sergeant) v First Minister of Wales [2019] EWHC 739 (Admin) [2019] 4 WLR 64 at §70 (“clear and unambiguous representation” in press release); R (Davies) v HMRC [2011] UKSC 47 [2011] 1 WLR 2625 at §29 (“the representations … must have been clear”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §60 (Lord Hoffmann: “a legitimate expectation can be based only upon a promise which is ‘clear, unambiguous and devoid of relevant qualification’”), §61 (no “clear and unambiguous promise”), §134 (no “unequivocal assurance”); R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 at §54 (here, “no conduct which amounted within its context to a sufficiently clear representation”), §64 (statement not clear and unambiguous); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 694h, 690a-f (absence of a clear and unambiguous representation not fatal to claim of substantive unfairness); {41.1.1} (legitimate expectation: general principles); {41.2.3} (legitimate expectation based on promise/ representation: illustrations). 41.2.10 Practice: whether impliedly clear, unambiguous and unqualified representation. R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §69 (“what is required is that there must be a practice (even though there is no express promise) which is impliedly tantamount to such a promise. That practice must still give rise to a representation which is clear, unambiguous and devoid of any relevant qualification”), §75 (“although an express promise is not required to found a legitimate expectation, there must be a consistent practice which is sufficient to generate an implied representation to the same effect”), §91 (no “regular pattern of behavior amounting to a representation”); R (Richborough Estates Ltd) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 33

102The

equivalent paragraph in a previous edition was relied on in Hossain v SSHD [2015] EWCA Civ 207 at §40 (Beatson LJ); R (Sood) v SSHD [2015] EWCA Civ 831 [2016] Imm AR 61 at §36 (Beatson LJ).

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(Admin) [2018] PTSR 1168 (procedural legitimate expectation) at §66 (Dove J: “it is necessary for there to be ‘an unequivocal assurance’ either expressly or implicitly from practice upon which the legitimate expectation is then grounded”). 41.2.11 Whether preceded by full disclosure from claimant. R (Jefferies) v SSHD [2018] EWHC 3239 (Admin) at §81 (statement made off the record in private meeting not capable of giving rise to a legitimate expectation; claimants should never have given privacy commitment if proposing to rely on what said); R v Inland Revenue Commissioners, ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569E-G, 1570A-B and 1575B-C (person seeking assurance must make full disclosure); R v Inland Revenue Commissioners, ex p Matrix-Securities Ltd [1994] 1 WLR 334, 346C (Lord Templeman: “The [solicitors’] letter … was inaccurate and misleading”), 356A (Lord Jauncey: “a piece of information essential to the deliberations required of the revenue by the taxpayer was not furnished to them”) and see 352B-F, 354H, 356F-G and 358A; cf R v SSHD, ex p Hindley [2001] 1 AC 410, 418F-H (not unlawful to increase tariff where previously set in ignorance of all relevant offending); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 at §68(3) (“whether there has been such a failure of disclosure by a party as to disentitle him from having a legitimate expectation must depend on the particular circumstances of the case”). 41.2.12 Whether communication/knowledge. R (Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin) [2009] 1 All ER 17 at §86 (treated as fatal here that no knowledge of the representation) (CA is [2009] EWCA Civ 587 [2010] 1 WLR 363); R v SSHD, ex p Hindley [2001] 1 AC 410, 419B-C (no legitimate expectation of 30-year tariff, because not communicated, so no knowledge or assurance); R v Ministry of Defence, ex p Walker [2000] 1 WLR 806 (no legitimate expectation frustrated where previous policy had not been communicated to the claimant); R v Secretary of State for National Heritage, ex p J Paul Getty Trust [1997] EuLR 407, 414B, 418A-C (statement could not give rise to a legitimate expectation on the part of the Trust, who had been unaware of it when it was made); R (Rashid) v SSHD [2005] EWCA Civ 744 [2005] INLR 550 at §25 (legitimate expectation of application of asylum policy albeit no knowledge); R (Mugisha) v SSHD [2005] EWHC 2720 (Admin) [2006] INLR 335 at §34 (knowledge of promise or practice not necessary); R (M) v Commissioner of Police of the Metropolis [2001] EWHC Admin 553 (legitimate expectation could arise even though claimants unaware of policy); R v SSHD, ex p Ahmed [1999] Imm AR 22, 40 (communication and knowledge not fatal to legitimate expectation based on ratified Convention); R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 at §30 (describing “significant difficulties” in imposing requirement of knowledge); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] STC 1500, 1527j-1528b (sufficient that representation made to associations of opticians, intended to be and in fact relied upon by individual opticians); R (Hashmi) v SSHD [2002] EWCA Civ 728 [2002] INLR 377 (letter to MP acting on claimant family’s behalf, treated as proper notification of formal decision). 41.2.13 Whether (detrimental) reliance. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §62 (Lord Kerr: “a matter sounding on the question of fairness [to justify the departure] is whether the alteration in policy frustrates any reliance which the person or group has placed on it”); R (Aozora GMAC Investment Ltd) v HMRC [2019] EWCA Civ 1643 [2020] 1 All ER 803 at §44 (“detrimental reliance … is a relevant and indeed an important factor”); R (RD (A Child) v Worcestershire County Council [2019] EWHC 449 (Admin) at §82xi (detrimental reliance not essential where representation made to the public or a large class), §§84-85, 91 (“not determinative in this case”); R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929 at §50 (detrimental reliance not necessary in a legitimate expectation case based on a promise made to the world); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §60 (Lord Hoffmann: “It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power”), §§63, 135, 185; R v Department for Education and Employment, 581

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ex p Begbie [2000] 1 WLR 1115, 1124B-D (although not always necessary, “wrong to understate the significance of reliance”); Francisco Javier Jaramillo-Silva v SSHD [1994] Imm AR 352, 357 (“reliance and detriment as such are not necessarily required in every legitimate expectation case”); R (National Association of Guardians Ad Litem and Reporting Officers) v Children and Family Court Advisory and Support Service [2001] EWHC Admin 693 [2002] 1 FLR 255 at §45 (procedural legitimate expectation despite lack of reliance); R v Falmouth and Truro Port Health Authority, ex p South West Water Ltd [2001] QB 445, 459H-460A (“I do not accept that detrimental reliance on the assurance given is necessary to make good a legitimate expectation challenge in the present [procedural] category of case”), applied in R (Structadene Ltd) v Hackney LBC [2001] 2 All ER 225, 236d; Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 635B-C (absence of reliance not fatal); R v SSHD, ex p Popatia [2000] INLR 587 at §82 (Sullivan J: “Whilst reliance is not essential, lack of reliance will often be relevant in deciding whether or not it would be fair and/or in the interests of good administration to correct a mistake”). 41.2.14 Whether detriment/prejudice. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §§62, 70, 72 (doubting whether detriment is a precondition for substantive legitimate expectation), §63 (detriment not relevant to procedural legitimate expectation); Gokool v Permanent Secretary for the Ministry of Health and Quality of Life [2008] UKPC 54 at §21 (detrimental reliance normally required); R (Bibi) v Newham LBC [2001] EWCA Civ 607 [2002] 1 WLR 237 at §31 (“the significance of reliance and of consequent detriment is factual, not legal. … In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation”), §55 (wrong to “disregard the legitimate expectation because no concrete detriment can be shown”). 41.2.15 Whether actual or ostensible authority. South Bucks District Council v Flanagan [2002] EWCA Civ 690 [2002] 1 WLR 2601 at §18 (“Legitimate expectation involves notions of fairness and unless the person making the representation has actual or ostensible authority to speak on behalf of the public body, there is no reason why the recipient of the representation should be allowed to hold the public body to the terms of the representation. He might subjectively have acquired the expectation, but it would not be a legitimate one, that is to say it would not be one to which he was entitled”); Rowland v Environment Agency [2002] EWHC 2785 (Ch) [2003] Ch 581 at §68 (“The public body can only be bound by acts and statements of its employees and agents if and to the extent that they had actual or ostensible authority to bind the public body by their acts and statements”, endorsed by CA [2003] EWCA Civ 1885 [2005] Ch 1 at §67). 41.2.16 Focusing on the ‘legitimacy’ of the expectation. R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 at §57(c) (CA treating the fairness/justification test {54.2.3} as arising in cases where “once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy”), §73 (rationality review applicable in some cases, “not because the expectation is substantive but because it lacks legitimacy”); R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1125C-D (“No doubt statements such as those made … did give rise to an expectation. … But the question for the court is whether those statements give rise to a legitimate expectation, in the sense of an expectation which will be protected by law”); R v South Somerset District Council, ex p DJB (Group) Ltd (1989) 1 Admin LR 11, 18E (cannot have been legitimate to expect, as a result of council’s policy, that would be able to break the law without being prosecuted); R v Gaming Board of Great Britain, ex p Kingsley [1996] COD 241 (doctrine of legitimate expectation based on considerations of fairness, even where benefit claimed not procedural, and should not be invoked to confer an unmerited or improper benefit); R v Westminster City Council, ex p Dinev 24 October 2000 unreported (expectation lacking legitimacy where claimants had been trading unlawfully). 41.2.17 Legitimate expectation: an objective approach. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §62 (“The court is the arbiter of 582

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fairness in this context”, to decide whether authority allowed to depart from undertaking); Anand v Royal Borough of Kensington and Chelsea [2019] EWHC 2964 (Admin) at §67 (“In construing the representation, the question … is how, on a fair reading of the statement, it would have been reasonably understood by those to whom it was made. … This is an objective test”); R v SSHD, ex p Ahmed [1999] Imm AR 22, 40 (“The principle of legitimate expectation in English law is a principle of fairness in the decision-making process. … In the present context, it is a wholly objective concept and is not based upon any actual state of knowledge of individual immigrants or would be immigrants”; “the application of the principle must be based upon some objectively identifiable legitimate expectation as to how decisions will be made and discretions exercised”); R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1130B (“objective concepts”); R (National Association of Guardians Ad Litem and Reporting Officers) v Children and Family Court Advisory and Support Service [2001] EWHC Admin 693 [2002] 1 FLR 255 at §44 (question as to what has the public authority committed itself “has to be looked at objectively and not through either [the claimant’s] eyes or the eyes of [the defendant]”); {16.6.3} (legitimate expectation: hard-edged questions for the Court). 41.2.18 Legitimate expectation from statement in Parliament? R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) at §53 (discussing whether legitimate expectation capable of being based on statements in Parliament); R (O’Callaghan) v Charity Commission [2007] EWHC 2491 (Admin) (legitimate expectation of consultation from Minister’s promise in Parliament). 41.2.19 Statements in Parliament and the interpretation/application of legislation. Pepper v Hart [1993] AC 593, 616G (asking “whether it could possibly be right to give effect to taxing legislation in such a way as to impose a tax which the Financial Secretary to the Treasury, during the passage of the Bill containing the relevant provision, had, in effect, assured the House of Commons it was not intended to impose”); R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 [2002] 1 WLR 2956 at §6 (“If exceptionally there is found in Explanatory Notes a clear assurance by the executive to Parliament about the meaning of a clause, or the circumstances in which a power will or will not be used, that assurance may in principle be admitted against the executive in proceedings in which the executive places a contrary contention before a court. This reflects the actual decision in Pepper v Hart”); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §113 (Lord Hope, referring to the purpose of Pepper v Hart as being “to prevent the executive seeking to place a meaning on words used in legislation which is different from that which ministers attributed to those words when promoting the legislation in Parliament”); Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [2003] QB 151 at §76 (no legitimate expectation could arise solely from a statement in Parliament giving false impression as to effect of a Bill, since that would infringe the Bill of Rights); R v DPP, ex p Kebilene [2000] 2 AC 326 (DC), 339F (“hesitant to hold that a legitimate expectation could be founded on answers given in Parliament to often very general questions: to do so is to invest assertions by the executive with a quasi-legislative authority, which could involve an undesirable blurring of the distinct functions of the legislature and the executive”). 41.2.20 Legitimate expectation: expectations of the public at large. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §63 (legitimate expectation arising from “policy statement … made … to the world at large”), §157 (“policy statements made to the public in general”); R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1133E (“no difficulty with the proposition that in cases where government has made known how it intends to exercise powers which affect the public at large it may be held to its word irrespective of whether the [claimant] had been relying specifically upon it. The legitimate expectation in such a case is that government will behave towards its citizens as it says it will”), approved in R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292, 314C; cf R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 545H (suggesting “the doctrine of legitimate expectation cannot reasonably be extended to the public at large, as opposed to particular individuals or bodies who are directly affected 583

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by certain executive action”), 553D-F (legitimate expectation of victims of crime); {41.1.17} (legitimate expectation: an attempted route to justiciable international law obligations). 41.2.21 Legitimate expectation: promise by a different body. R (Hackney LBC) v Secretary of State for Housing and Local Government [2019] EWHC 1438 (Admin) at §64 (“that the assurance was given by a previous Government may not have been a sufficient justification for defeating a legitimate expectation”, at least where promise or underlying policy not “contrary to the policy of the succeeding Government”); R (BAPIO Action Ltd) v SSHD [2008] UKHL 27 [2008] 1 AC 1003 at §60 (SSHD’s practice giving rise to a legitimate expectation infringed by Health Secretary); R (O’Callaghan) v Charity Commission [2007] EWHC 2491 (Admin) (Charity Commission consultation duty arising from promise by Minister in Parliament); R (Burns) v Woolwich Crown Court [2010] EWHC 129 (Admin) at §31 (CPS indication that it would not oppose bail not giving rise to a legitimate expectation of bail being continued, that being a matter for the court); R (Bloggs 61) v SSHD [2003] EWCA Civ 686 [2003] 1 WLR 2724 (unauthorised police representations not capable of founding a legitimate expectation as against prison service); R (H) v Guildford Youth Court [2008] EWHC 506 (Admin) (prosecution breaching legitimate expectation engendered by police promise); Jones v Whalley [2006] UKHL 41 [2007] 1 AC 636 (police no-prosecution promise meaning private prosecution an abuse of process); R v DPP, ex p Kebilene [2000] 2 AC 326 (DC), 339E (ministerial statements not founding legitimate expectation concerning DPP’s future decisions); R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855 at §68(6) (implications for Saville inquiry of statements made by Widgery inquiry); R v Servite Houses and Wandsworth LBC, ex p Goldsmith (2000) 3 CCLR 325, 350B (promise made by service provider not founding legitimate expectation against local authority); R (National Association of Guardians Ad Litem and Reporting Officers) v Children and Family Court Advisory and Support Service [2001] EWHC Admin 693 [2002] 1 FLR 255 (promise by “project team” relevant to fairness by support service); R (Pepushi) v CPS [2004] EWHC 798 (Admin) [2004] INLR 638 at §38 (CPS not bound by any legitimate expectation from ratification of Refugee Convention); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 (legitimate expectation from practice of statutory predecessors); {6.2.7} (adherence to policy guidance from an external source).

584

P42 Onus. The claimant must establish the claim, but the public authority often has an onus. 42.1 Onus generally on the claimant 42.2 Onus on the defendant

42.1 Onus generally on the claimant. In judicial review it is generally for the claimant to prove that grounds for the Court’s intervention are established; not for the defendant public authority to prove that the claim is unfounded. 42.1.1 Judicial review: onus is on the claimant. Standard Commercial property Securities Ltd v Glasgow City Council [2006] UKHL 50 at §61 (Lord Rodger: “The onus is on [the claimant] to establish that … [the defendant] reached a decision which was ultra vires or which no reasonable authority could have reached”); Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §64 (onus of showing a clear and unambiguous promise or undertaking on the person claiming it), §78 (need clear evidence to conclude that reasons a sham or predetermined); R (Palmer) v Herefordshire Council [2016] EWCA Civ 1061 [2017] 1 WLR 411 at §7 (Lewison LJ: “It is not for the decision-maker to demonstrate positively that he has complied with [the statutory] duty: it is for the challenger to demonstrate that at the very least there is substantial doubt whether he has”); R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 234 [2007] LGR 619 at §45 (onus on claimant to show failure to take account of relevancy); R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 1026H (claimant “has to satisfy the court that he has a case”), 1014A (claimants having “failed to establish” unlawfulness); R v Birmingham City Council, ex p O [1983] 1 AC 578, 597C-D (Lord Brightman: “the onus is on the [claimants] to establish that the local authority reached a decision that no reasonable authority could have approved”); R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) at §94 (onus on claimant to show legally inadequate consultation by reason of failure to give conscientious consideration). 42.1.2 Presumption of regularity: primary/delegated legislation.103 R v Secretary of State for Transport, ex p Factortame Ltd [1990] 2 AC 85, 142G (Lord Bridge: “the presumption that an Act of Parliament is compatible with Community law unless and until declared to be incompatible must be at least as strong as the presumption that delegated legislation is valid unless and until declared invalid”), 143B; cf Arorangi Timberland Ltd v Minister of the Cook Islands National Superannuation Fund [2016] UKPC 32 [2017] 1 WLR 99 at §§32-33 (so-called presumption that an enactment is constitutional “normally adds nothing”, and “merely serves to confuse”, where the issue is proportionality and there is no significant issue of fact); McEldowney v Forde [1971] AC 632, 655F (Lord Pearson: “the presumption of regularity (omnia praesumuntur rite esse acta) applies and the regulation is assumed prima facie to be intra vires”), 649A (“the task of a subject who endeavours to challenge the validity of … a regulation is a heavy one”), 661A (“the onus lies upon the party challenging the subordinate legislation to establish its invalidity”); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 366E-F, 368A; Percy v Hall [1997] QB 924 (bylaws); Boddington v British Transport Police [1999] 2 AC 143, 155B-C (subordinate legislation presumed lawful until pronounced otherwise). 42.1.3 Whether a presumption of regularity applies to decision-making. Smart v DPP [2019] UKPC 35 at §§33-34 (“presumption of regularity” not “a shield behind which a public authority can hide by refusing to give evidence on the basis that it is for a claimant to prove 103The

equivalent paragraph in a previous edition was relied on in Wong Kei Kwong v PASCS [2008] 2 HKC 555 at §46 (Saunders J).

PARAMETERS OF JUDICIAL REVIEW

his case”); cf R v Inland Revenue Commissioners, ex p T.C.Coombs & Co [1991] 2 AC 283, 299H (“where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution”); R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 1013F-H (“Where Parliament has designated a public officer as decision-maker for a particular class of decisions the High Court … must proceed on the presumption omnia praesumuntur rite esse acta until that presumption can be displaced by the [claimant] for review – upon whom the onus lies of doing so”); A v B Bank (Governor and Company of the Bank of England Intervening) [1993] QB 311, 326D-327G (Bank of England’s acts attracting presumption of regularity); Kotton v First Tier Tribunal (Tax Chamber) [2019] EWHC 1327 (Admin) at §54 (“in a case where all the material before the decision-maker is available to the court, the presumption of regularity has a limited … function: the officer is presumed to have acted honestly and in good faith”); R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §§52, 59 (treating the Rossminster and Coombs presumption of regularity as no longer a justification for the judicial review court being left uninformed as to the basis for the impugned decision); Cemex (UK) Operations Ltd v Richmondshire District Council [2018] EWHC 3526 (Admin) at §64 (“The court is plainly not constrained to assume it is unreal that officers may not have carried out their functions properly”); R (E) v Islington LBC [2017] EWHC 1440 (Admin) [2018] PTSR 349 at §114 (“A court should not assume in favour of a local authority that it has performed its functions in a conscientious and lawful manner. Judicial scrutiny requires an objective and evidence-based analysis of the decision-making process”), referring to Nzolameso v Westminster City Council [2015] UKSC 22 [2015] PTSR 549 at §§35-36 (assumptions of regularity would “immunise from judicial scrutiny”); {10.1.15} (effective judicial review: providing reasons/materials and the ‘presumption of regularity’); {44.3.6} (nullity: valid until set aside/whether safe to disregard or need to challenge); {42.2.4} (inferences and lack of candour/reasons). 42.1.4 Precedent fact: no onus/neutral onus. R (CJ) v Cardiff City Council [2011] EWCA Civ 1590 [2012] 2 All ER 836 at §21 (Pitchford LJ: “once the court is invited to make a decision upon jurisdictional fact it can do no more than apply the balance of probability to the issue without resorting to the concept of discharge of a burden of proof”); R (KN) v Barnet LBC [2011] EWHC 2019 (Admin) (better to determine the issue on the evidence, and avoiding resort to the burden of proof). 42.1.5 Expert tribunals/decision-makers/courts: caution before finding misdirection. Hutton v Criminal Injuries Compensation Authority [2016] EWCA Civ 1305 [2017] ACD 20 at §57 (Gross LJ, identifying the need to exercise “restraint and proceed with caution before interfering with decisions of specialist tribunals”, not to “subject such decisions to inappropriate textual analysis so as to discern an error of law when, on a fair reading of the decision as a whole, none existed”, and “to identify the tribunal of fact, to keep in mind that it and only it will have heard the evidence and to respect its decisions”); AH (Sudan) v SSHD [2007] UKHL 49 [2008] 1 AC 678 at §30 (Lady Hale, explaining the “appropriate degree of caution” in considering whether error of law by “an expert tribunal charged with administering a complex area of law in challenging circumstances”, whose “decisions should be respected unless it is quite clear that they have misdirected themselves in law”); MA (Somalia) v SSHD [2010] UKSC 49 [2011] 2 All ER 65 at §45 (“the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the [tribunal]’s assessment of the facts. Moreover, where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account”); Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37 [2017] 1 WLR 1865 at §25 (Lord Carnwath: “the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly”; “their position is in some ways analogous to that of expert tribunals”); West Lothian Council v B [2017] UKSC 15 [2017] SLT 319 at §54 (court below said family judge “could safely be taken to have a sound understanding of the relevant law”), §55 (SC, disagreeing: “there is nothing to indicate that he was addressing the threshold test. … In the absence of any indication in his opinion that he identified and addressed the correct test, he cannot be assumed to have done so merely because he is a specialist judge”); 586

P42 Onus

G v Mental Health Tribunal for Scotland [2013] UKSC 79 [2014] SLT 247 at §63 (approach to “scrutinising the reasoning of expert tribunals”); Magmatic Ltd v PMS International Group plc [2016] UKSC 12 [2016] Bus LR 371 at §39 (discussing the “assumption that … the judge knew how he should perform his functions and which matters he should take into account”, explaining: “when a judge has given a full and careful judgment, conscientiously identifying and specifying a significant number of points which weigh with him, an appellate court can properly conclude that his failure to mention a significant point means that he has overlooked it”). 42.1.6 Claimant’s onus: standard of proof. R (AA) v Rotherham Metropolitan Borough Council [2019] EWHC 3529 (Admin) at §119 (Jefford J: “it would in the normal course be the claimant who bears the burden of proof … on the balance of probabilities”); R v SSHD, ex p Khawaja [1984] AC 74, 112E (Lord Scarman: “As judicial review … is a civil proceeding, it would appear to be right … to apply the civil standard of proof”). 42.1.7 Claimant’s onus: disclosure, further information and cross-examination. {17.4} (oral evidence/cross-examination in judicial review); {17.5} (disclosure/further information in judicial review).

42.2 Onus on the defendant.104 The onus of proof in judicial review may in general be on the claimant, but the Courts expect public authority defendants to explain themselves, with candid disclosure. On some issues and in some situations, the onus is in substance on the defendant public authority, and the claimant will get the benefit of any real doubt. The origins of judicial review lay in ancient prerogative writs which involved a ‘rule nisi’, requiring the respondent public authority to ‘show cause’ why the writ should not lie. In reality, the practical implications of a grant of permission may not be so very dissimilar. 42.2.1 Historical origins: the rule nisi (show cause) procedure. Local Government Board v Arlidge [1915] AC 120, 139 (Lord Parmoor: “The [claimant] obtained a rule nisi in the High Court of Justice, calling upon the Local Government Board to show cause why a writ of certiorari should not be issued. … This rule was discharged on argument”); Metropolitan Borough of Stepney v John Walker & Sons Ltd [1934] AC 365, 388 (Lord Wright: “the [claimants] applied for, and were granted, a rule nisi calling upon the [defendant] to show cause why a writ of mandamus should not issue. A Divisional Court before which the matter came … ordered the rule to be discharged”); {2.1.7} (judicial review: the historical context). 42.2.2 The need for the defendant to ‘evidence and explain’ a decision. Nzolameso v Westminster City Council [2015] UKSC 22 [2015] PTSR 549 at §31 (“local authorities have a number of duties to evidence and explain their decisions”), §42 (need to “ensure that their decisions are properly evidenced and properly explained”). 42.2.3 Grant of permission means response called for. R v Secretary of State for Transport, ex p APH Road Safety Limited [1993] COD 150 (Schiemann J: once permission granted, claimant may be taken to have established a prima facie case); R (I) v SSHD [2010] EWCA Civ 727 at §50 (Munby LJ: “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 v Civil Service Appeal Board, ex p Cunningham [1991] 4 All ER 310, 315j (Lord Donaldson MR: “the fact that [permission] has been granted calls for some reply from the [defendant]”); R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941, 945b (“if and when the [claimant] can satisfy a judge of the public law court that the facts disclosed by her are sufficient to entitle her to apply for judicial review … [t]hen it becomes the duty of the [defendant] to make full and fair disclosure”).

104The

equivalent paragraph in a previous edition was relied on in Chatfield & Co v IRC [2017] NZHC 3289 [2018] 2 NZLR 835 at §88 (Wylie J).

587

PARAMETERS OF JUDICIAL REVIEW

42.2.4 Inferences and lack of candour/reasons. R (Das) v SSHD [2014] EWCA Civ 45 [2014] 1 WLR 3538 at §80 (CA endorsing this statement by Sales J at [2013] EWHC 682 (Admin) at §21: “Where a Secretary of State fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party. … The basis for drawing adverse inferences of fact against the Secretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision … to cooperate and to make candid disclosure, by way of affidavit, 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”); {10.4} (defendant/interested party’s duty of candour); {P64} (reasons); {42.2.8} (inferences against the defendant). 42.2.5 Defendant lack of transparency would undermine effective judicial review. {42.1.3} (whether presumption of regularity applies to decision-making); {10.1.15} (effective judicial review: providing reasons/materials and the ‘presumption of regularity’); {64.1.7} (judicial review is disarmed absent reasons). 42.2.6 Matters calling from an explanation from the defendant: illustrations. Engineers & Managers Association v Advisory Conciliation & Arbitration Service [1980] 1 WLR 302, 310F (“such extraordinary delay as occurred here called for a clear and convincing explanation”); R v Dorking Justices, ex p Harrington [1984] AC 743, 749D-E (“no explanation has been vouchsafed of the reasons for what can only be regarded as this remarkable action”; “in the absence of some explanation – none is readily apparent – it is clear that their action was both wrong and unjudicial”); Manning v Sharma [2009] UKPC 37 (judicial review for breach of statutory duty to publish information as soon as practicable) at §14 (applying the principle res ipsa loquitur, the unexplained failure meant it was “surely … up to the authority to show some good reason why it had not been practicable to publish”); R v Chief Constable of Devon and Cornwall, ex p Hay [1996] 2 All ER 711, 725g-h (“the only person who can describe his process of reasoning is the chief constable himself, and I do not consider that he has satisfactorily done so”). 42.2.7 Resolving disputed facts in judicial review. {17.3} (judicial review and factual disputes). 42.2.8 Inferences against the defendant. {64.2.14} (reasons and unreasonableness: inference of unlawfulness); R v Manchester Metropolitan University, ex p Nolan [1994] ELR 380, 391H (inferring that certain material was not before board of examiners); R v Governors of the Hasmonean High School, ex p N & E [1994] ELR 343, 355A-B, 350B-C, 352D; R v Warwickshire County Council, ex p Collymore [1995] ELR 217, 227D-H (inference that policy inflexibly applied); R v Brent LBC, ex p Bariise (1999) 31 HLR 50, 58 (where something “so startling that one would not expect it to pass without individual comment, the Court may be justified in drawing the inference that it has not received any or sufficient consideration”); R (I) v SSHD [2010] EWCA Civ 727 at §55 (Munby LJ, speaking of the situation where there are “deficiencies in the Secretary of State’s response. … If … the court is … left having to draw inferences in such a situation, then the Secretary of State should anticipate that the inferences drawn may well be adverse to him”); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at §53 (Laws LJ: “If the court has not been given a true and comprehensive account, but has had to tease the truth out of late [disclosure], it may be appropriate to draw inferences against the Secretary of State upon points that remain obscure”). 42.2.9 Defendant’s onus and assertions. R (Talpada) v SSHD [2018] EWCA Civ 841 at §2 (Hallett LJ: “the burden of proof is usually on the person who asserts a fact to be true”); Sadovska v SSHD [2017] UKSC 54 [2017] 1 WLR 2926 at §28 (“One of the most basic rules of litigation is that he who asserts must prove”); R (Lichfield Securities Ltd) v Lichfield District 588

P42 Onus

Council [2001] EWCA Civ 304 [2001] 3 PLR 33 at §26 (“it is for [the] public authority to make out any case that the remedy for its own unfairness lay in the [claimant’s] hands”). 42.2.10 Defendant’s onus:105 HRA. {37.1.20} (proportionality: onus on the defendant/state). 42.2.11 Defendant’s onus: discrimination. R (Ward) v Hillingdon LBC [2019] EWCA Civ 692 [2019] PTSR 1738 at §76 (as to discrimination under Equality Act 2010: “The burden lies on the policy maker to justify the impugned [provision, criterion or practice]”); R (Fisher) v Durham County Council [2020] EWHC 1277 (Admin) [2020] ACD 85 at §65 (onus on defendant to justify disability discrimination). 42.2.12 Defendant’s onus: liberty. Eshugbayi Eleko v Government of Nigeria [1931] AC 662, 670 (“no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice”), applied in Boddington v British Transport Police [1999] 2 AC 143, 173F; R v SSHD, ex p Khawaja [1984] AC 74, 112B (“in cases where the exercise of executive discretion interferes with liberty or property rights … the burden of justifying the legality of the decision [is] … upon the executive”), 114B-C (applying “the civil standard flexibly applied”); R v Oldham Justices, ex p Cawley [1997] QB 1, 19B (in practice, judicial review like habeas corpus as to onus). 42.2.13 Defendant’s onus: interference with common law/constitutional rights. Chesterfield Properties Plc v Secretary of State for the Environment [1998] JPL 568, 579 (Laws J: “Where an administrative decision abrogates or diminishes a constitutional or fundamental right, Wednesbury requires that the decision-maker provide a substantial justification in the public interest for doing so”), 580 (“it must … be demonstrated that [the decision-maker] has concluded that there exists a substantial public interest or interests outweighing the [claimant]’s rights”); {7.6} (constitutional/common law rights). 42.2.14 Defendant’s onus: anxious scrutiny. R v SSHD, ex p Bugdaycay [1987] AC 514, 537H-538A (Court’s “special responsibility”, and judicial review succeeding because it was ‘not clear’ that Secretary of State “took into account or adequately resolved” relevant matters); R v Lord Saville, ex p A 17 June 1999 unreported (“In effect the burden is on those who seek to uphold the decision”); {32.4} (anxious scrutiny). 42.2.15 Defendant’s onus: substantive legitimate expectation (justification). Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32 [2012] 1 AC 1 at §37 (Sir John Dyson: “The initial burden lies on an applicant to prove the legitimacy of his expectation. This means that in a claim based on a promise, the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too. Once these elements have been proved by the applicant, however, the onus shifts to the authority to justify the frustration of the legitimate expectation. It is for the authority to identify any overriding interest on which it relies to justify the frustration of the expectation. It will then be a matter for the court to weigh the requirements of fairness against that interest”), applied in R (Patel) v General Medical Council [2013] EWCA Civ 327 [2013] 1 WLR 327 at §58; Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §64 (onus of showing a clear and unambiguous promise or undertaking on the person claiming it); cf R (Aozora GMAC Investment Ltd) v HMRC [2019] EWCA Civ 1643 [2020] 1 All ER 803 at §46 (Rose LJ: “I do not accept that, once a representation capable of giving rise to a legitimate expectation has been identified, the burden shifts to [the defendant] to adduce evidence to the court showing some public interest in it being able to resile from the representation. Such an approach fails to recognize that these supposed elements or stages in establishing unfairness are all part and parcel of the [claimant] making good his claim that he

105These

paragraphs in a previous edition were relied on in FR (Albania) v SSHD [2016] EWCA Civ 605 at §100 (Beatson LJ); Asiweh v SSHD [2019] EWCA Civ 13 at §33 (Sir Ernest Ryder).

589

PARAMETERS OF JUDICIAL REVIEW

has a legitimate expectation arising from the representation which the court should protect”); R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) at §38 (claimant having “failed to satisfy us, as he must do” that breach of legitimate expectation). 42.2.16 Defendant’s onus: ‘departure’ contexts. R v Islington LBC, ex p Rixon [1997] ELR 66 (up to defendant to demonstrate good reason for any failure to comply with statutory guidance); {55.3} (unjustified ‘departure’); {64.2.16}-{16.2.20} (reasons needed for ‘departure’). 42.2.17 Defendant’s onus: severability. {43.1.9} 42.2.18 Defendant’s onus: materiality (HL:NSD test). {4.1.13} (cautious approach to HL:NSD test: onus on the defendant). 42.2.19 Defendant’s onus: other illustrations. R (M) v Chief Constable of Sussex [2019] EWHC 975 (Admin) [2019] ACD 67 at §86 (burden on defendant to show compliance with Data Protection Act 2018, under s.34(2)); R (Rasheed) v SSHD [2015] EWHC 2052 (Admin) [2015] ACD 130 at §11 (burden on defendant where immigration decision reached on the basis that there had been fraud); R (Litvinenko) v SSHD [2014] EWHC 194 (Admin) [2014] HRLR 6 at §74 (Richards J: “the reasons given by the Secretary of State do not provide a rational basis for the decision. … The deficiencies in the reasons are so substantial that the decision cannot stand”); R v Highbury Corner Magistrates’ Court, ex p Tawfick [1994] COD 106 (defendant failing to show good grounds justifying impugned decision); R v Camden LBC, ex p Adair (1997) 29 HLR 236 (no direct evidence that defendant’s homelessness unit having made inquiries of district housing office); R v Liverpool City Magistrates Court, ex p Banwell [1998] COD 144 (judicial review granted where possible to read the decision-letter as reflecting a permissible approach, but not the only interpretation); R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977, 999E (in adopting the policy, authority not having “demonstrated that degree of rational consideration that can reasonably be expected of it”); R v Flintshire County Council, ex p Armstrong-Braun [2001] EWCA Civ 345 [2001] LGR 344 at §67 (“[The] evidence falls far short of demonstrating that … proper considerations were before members”); {31.3.11} (procedural fairness and failure to request/complain/act: defendant’s onus).

590

P43 Severance. An impugned measure may be partially upheld by the Court if, shorn of the vitiated parts, the substantial purpose and effect remain intact. 43.1 Severability

43.1 Severability.106 A successfully impugned measure (enactment, rule or other instrument) may be held by the Court to be unlawful but not in its entirety. It may be possible for the measure to be overturned (or declared unlawful) as to the offending parts, and for the remainder to be upheld as valid and left subsisting. 43.1.1 Invalidity ‘to the extent of’ the unlawfulness. R (Hemming) v Westminster City Council (No 2) [2017] UKSC 50 [2018] AC 676 (discussing inconsistency with EU law) at §9 (Lord Mance: “There is no imperative … to treat the whole scheme as invalid, rather than to invalidate it to the extent of the inconsistency. … Even under purely domestic law principles, a test of substantial severability is appropriate, rather than rigid insistence on textual severability. … Any remaining element of the scheme which can stand by itself is able to do so”). 43.1.2 Substantial severability. DPP v Hutchinson [1990] 2 AC 783 (secondary legislation), 804F (Lord Bridge: “A legislative instrument is substantially severable if the substance of what remains after severance is essentially unchanged in its legislative purpose, operation and effect”), 813D-F (question is “whether the legislative instrument: ‘with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it’”); R v SSHD, ex p Pierson [1998] AC 539, 592A-D (substantial severability preferable to “the blunt remedy of total lawfulness or total unlawfulness. The domain of public law is practical affairs. Sometimes severance is the only sensible course”); Commissioner of Police v Skip Patrick Davis [1994] 1 AC 283, 299A-B (using substantial severability to adopt an interpretation which “would plainly effect no change in the substantial purpose and effect of the subsection”). 43.1.3 Limits of substantial severability. DPP v Hutchinson [1990] 2 AC 783, 804B-C (Court having “no jurisdiction to modify or adapt the law to bring it within the scope of the lawmaker’s power”); R v Inland Revenue Commissioners, ex p Woolwich Equitable Building Society [1990] 1 WLR 1400 (secondary legislation), 1419B (“It is … no part of the court’s function to legislate in this way”); R v Secretary of State for Trade and Industry, ex p Thomson Holidays Ltd [2000] ECC 321 (wrong to “produce an order … as to whose terms there had been no consultation pursuant to [the statute]”); R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) at §§90-93 (discussing partial quashing/severance in context of whether instrument should be the subject of further consultation); R (Association of Pharmaceutical Importers) v Secretary of State for Health [2001] EWCA Civ 1986 [2002] EuLR 197 (judicial review refused because not possible to sever the offending chapter of the pharmaceutical price regulation scheme). 43.1.4 Severability: scheme/policy/instrument. R (Public and Commercial Services Union) v Minister for the Civil Service (No 2) [2010] EWHC 1463 (Admin) [2011] 3 All ER 73 at §§24-27 (using substantial severability to decide whether to quash whole, or part only, of amended civil service pension scheme); R v SSHD, ex p Pierson [1998] AC 539, 592A-D (using substantial severability in relation to the lawfulness of a policy); R v Rochdale Metropolitan Borough Council, ex p Schemet [1994] ELR 89, 106G (severance approach in

106The

equivalent paragraph in a previous edition was relied on in R (SSHD) v MHRT [2005] EWCA Civ 1616 at §10 (Sedley LJ).

PARAMETERS OF JUDICIAL REVIEW

relation to a partially unlawful policy); R (Hubert) v Carmarthenshire County Council [2015] EWHC 2327 (Admin) [2016] PTSR 162 at §34 (court ruling that unlawful wording from planning condition “must be severed”); R v Secretary of State for Transport, ex p Greater London Council [1986] QB 556, 578C-579D (“in principle and in appropriate proceedings, the court may hold to be unlawful part of an administrative order or decision having effect in public law while holding valid the remainder of the order or decision”); R v Inner London Crown Court, ex p Sitki [1994] COD 342 (entire liquor licence invalid, where not possible to sever unlawful condition); R v Berkshire County Council, ex p Wokingham District Council [1995] COD 364 (no power to sever a planning application into county and district matters); Egon Zahnder Ltd v Tillmann [2019] UKSC 32 [2020] AC 154 (substantial severability as applied to restrictive covenants in restraint of trade). 43.1.5 Role of textual severability. DPP v Hutchinson [1990] 2 AC 783, 804F (“A legislative instrument is textually severable if a clause, a sentence, a phrase or a single word may be disregarded, as exceeding the law-maker’s power, and what remains of the text is still grammatical and coherent”), 811D-E (“The test of textual severability has the great merit of simplicity and certainty”), 811F-G (first question is whether “textual severance is possible”); Jersey Fishermen’s Association Ltd v States of Guernsey [2007] UKPC 30 at §60 (invalid Ordinance capable of textual severance, so substantial severance not necessary); cf R (Public and Commercial Services Union) v Minister for the Civil Service (No 2) [2010] EWHC 1463 (Admin) [2011] 3 All ER 73 at §§23-24, 28 (treating textual and substantial severability tests as each needing to be satisfied). 43.1.6 Interpretation to allow validity: reading down/in. {46.2} 43.1.7 Partial quashing.107 R (Sergeant) v First Minister of Wales [2019] EWHC 739 (Admin) [2019] 4 WLR 64 at §112 (quashing impugned aspects of operational protocol for independent inquiry); R (HMRC) v Maidstone Crown Court [2018] EWHC 2219 (Admin [2018] ACD 106 at §43 (“the challenged part of the decision must be quashed”); R v Secretary of State for the Environment, ex p Lancashire County Council [1994] 4 All ER 165 (quashing offending passage in policy guidance); R v Pateley Bridge Justices, ex p Percy [1994] COD 453 (quashing sentence for contempt and substituting lesser sentence); R v London Borough of Southwark, ex p Dagou (1996) 28 HLR 72, 81-82 (power to sever decision document, quashing part only); R (Guiney) v Greenwich LBC [2008] EWHC 2012 (Admin) (partial quashing not possible where sole aspect of planning permission complained of was key element of overall package); R v Exeter Crown Court, ex p Chennery [1996] COD 207 (Court quashing sentence of 18 months and substituting one of 12 months); R v London Borough of Tower Hamlets, ex p Tower Hamlets Combined Traders Association [1994] COD 325 (quashing street trading charges only to the extent excessive); R v Secretary of State for Transport, ex p Greater London Council [1986] QB 556, 580H-581C (suggesting that quashing order (certiorari) may sometimes be available to quash part only of a ‘direction’); R v Belmarsh Magistrates Court, ex p Gilligan [1998] 1 Cr App R 14 (quashing committal as to certain offences but not others); R v Snaresbrook Crown Court, ex p Patel [2000] COD 255 (quashing that part of Crown Court order denying defendant’s costs order); R v London (North) Industrial Tribunal, ex p Associated Newspapers Ltd [1998] ICR 1212, 1230A-B (partially quashing a reporting restriction order); R v Southwark Coroner’s Court, ex p Epsom Health Care NHS Trust [1995] COD 92 (quashing part of coroner’s verdict, there being a public interest in leaving the central finding in place); R v Inner South London Coroner, ex p Kendall [1988] 1 WLR 1186, 1193A-1194B (quashing coroner’s verdict, and remitting for new conclusion, but not quashing the inquest in its entirety; the jurisdiction to adopt such a response being “consistent … with this court’s increasing flexibility of response and remedy in the ever-developing field of judicial review”); R (Middlebrook Mushrooms Ltd) v

107The

equivalent paragraph in a previous edition was relied on in HAA (Nigeria) v Minister for Justice and Equality [2018] IEHC 34 at §6; AA (Pakistan) v International Protection Appeals Tribunal [2018] IEHC 497 at §4 (Richard Humphreys J).

592

P43 Severance

Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) at §§90-93 (discussing partial quashing/severance in context of whether instrument should be the subject of further consultation); cf R v Old Street Magistrates Court, ex p Spencer The Times 8 November 1994 (remitting the matter, but commenting that a partial quashing of the order would have been a more suitable response, had such a power existed); R (Devon County Council) v Secretary of State for Communities and Local Government (No 2) [2010] EWHC 1847 (Admin) at §§5-6 (declining partial suspension of quashing order, there being too many uncertainties and real problems); {P43} severance); {43.1.8} (partial validity: other judicial techniques); {24.4.2} (substitutionary remedy: Court’s power of retaking {2.6.6} (remittal: scope/guidance/directions as to reconsideration). 43.1.8 Partial validity: other judicial techniques. {24.4.2} (substitutionary remedy: Court’s power of retaking the decision); R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91 [2016] 1 WLR 2543 at §51 (declaration of two respects in which regulation unlawful); R (Alemi) v Westminster City Council [2015] EWHC 1765 (Admin) [2015] PTSR 1339 at §33 (declarations of unlawfulness in respect of parts of scheme incorporating the unlawful exclusion of a group); Agricultural, Horticultural & Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 190 (where failure to consult one body, Court holding that Order invalid but only as against them); Thames Water Authority v Elmbridge Borough Council [1983] QB 570 (council resolution valid insofar as not an excess of power); R (Salford Estates (No 2) Ltd v Salford City Council [2011] EWHC 2097 (Admin) at §41 (where drafting defect in planning condition, Court accepting a s.106 undertaking not to go beyond the planning committee’s intentions, rather than quashing the whole planning permission); R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35 [2015] AC 49 at §156 (Lord Reed, leaving open the possibility of these alternatives to a declaration that an instrument is ultra vires: “In a suitable case, consideration would have to be given to the protection of legal certainty in our administrative law … and to the possibility, if necessary to protect legal certainty, of either exercising the court’s discretion to refuse to provide a remedy, or alternatively granting a remedy with only prospective effect”). 43.1.9 Onus of proof and severability. R v Inner London Crown Court, ex p Sitki [1994] COD 342 (onus lying on party seeking to uphold the ‘valid portion’).

593

P44 Nullity. In principle, any material ‘public law wrong’ makes an impugned act a ‘nullity’. 44.1 Invalidity labels 44.2 Flaws constituting ‘nullity’ 44.3 Purpose/effect of ‘nullity’

44.1 Invalidity labels. Various terms have been used down the years to describe flawed (or fundamentally flawed) public authority decisions and measures, generally to help explain the consequences of the flaw. What emerged as the favoured term was the word ‘nullity’. Although a helpful concept, there are limits to any such characterisation. In the flexible and contextual world of judicial review, the true focus is always on the specific unlawfulness and its specific consequences, viewed in the particular context and circumstances of the case. 44.1.1 Disfavouring formalistic classifications: ‘void’/‘voidable’ etc. SSHD v SM (Rwanda) [2018] EWCA Civ 2770 at §43 (Haddon-Cave LJ: “formalistic legal classifications should be avoided when deciding the consequences of a defect in the exercise of an administrative power”), §45 (administrative law “has moved on” from void/voidable etc); R (Ellerton) v Secretary of State for Justice [2010] EWCA Civ 906 at §19 (Sedley LJ, describing public law’s emergence from “an impenetrable jungle of case law … seeking to distinguish the void from the voidable and the prospectively voidable from the void ab initio”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1163A-B (describing the “difficulty in applying the language of ‘void’ and ‘voidable’ … to administrative decisions”); R v SSHD, ex p Khawaja [1984] AC 74, 118C (“these transplants from the field of contract do not readily take root in the field of public law”); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 366A-B (“it leads to confusion to use such terms”, they being “ill-adapted to the field of public law”); McLaughlin v Governor of the Cayman Islands [2007] UKPC 50 [2007] 1 WLR 2839 (use of “void” apt, but different expressions not affecting outcome). 44.1.2 ‘Jurisdictional’ errors. {P47} (jurisdictional error). 44.1.3 ‘Mandatory’/‘directory’ procedural requirements. {61.4.3} (whether intended vitiating consequence: Soneji). 44.1.4 ‘Target’ duties. {39.3.5} (‘target duty’). 44.1.5 ‘Nullity’. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §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”); SSHD v JJ [2007] UKHL 45 [2008] 1 AC 385 at §27 (Lord Bingham: “An administrative order made without power to make it is, on well-known principles, a nullity”); Boddington v British Transport Police [1999] 2 AC 143, 154C-155A; 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 §§57-58 (“nullity” inapt in relation to merely preparatory acts); Anwar v SSHD [2010] EWCA Civ 1275 [2011] 1 WLR 2552 at §25 (“A decision taken in defiance of basic standards of fairness and morality may be impeached as a nullity”); R (Ellerton) v Secretary of State for Justice [2010] EWCA Civ 906 at §19 (Sedley LJ, explaining how “the courts … settled on the broad proposition that the ordinary consequence of an ultra vires act is ‘to render the instrument incapable of ever having had any legal effect’”, referring to Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295); Seal v Chief Constable South Wales Police [2007] UKHL 31 [2007] 1 WLR 1910 (civil proceedings “a nullity” where statutory precondition of leave of the court absent); {44.2} (flaws constituting ‘nullity’).

P44 Nullity

44.1.6 Focusing on legality and legal impact. Bugg v DPP [1993] QB 473, 491H-492A (describing the “movement away from seeking to categorise unlawful administrative action into different compartments, each with their separate label, such as void or voidable or ultra vires or nullity, and instead to emphasise the grounds upon which a court can intervene and to require that intervention before an administrative action will be categorised as invalid”); Percy v Hall [1997] QB 924, 950H-952D (Schiemann LJ, pointing out the need for flexibility in considering impact of court’s decision that an enactment is invalid); RR v Secretary of State for Work and Pensions [2019] UKSC 52 [2019] 1 WLR 6430 at §27 (disapplication of subordinate legislation which is incompatible with the HRA); {61.4.3} (whether intended vitiating consequence: Soneji).

44.2 Flaws constituting ‘nullity’. Although the concept of ‘nullity’ appeared at one time to be reserved for ‘especially serious’ vitiating flaws, the potential vitiating effect of all material public law wrongs means that they are each capable in principle of producing a ‘nullity’. 44.2.1 All public law grounds/wrongs/flaws produce ‘nullity’. R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §66 (Lord Dyson, explaining that a decision “made in breach of a rule of public law” would be “unlawful and a nullity”), §343 (Lord Brown); R (Hemmati) v SSHD [2019] UKSC 56 [2019] 3 WLR 1156 at §50; R v SSHD, ex p Fayed [1998] 1 WLR 763, 771B-773B (“nullity” would include “any … error which would justify the intervention of the court on judicial review”); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171B-E (Lord Reid, describing as “a nullity” a decision made “without jurisdiction” or where “although the tribunal had jurisdiction … it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account”); {P47} (jurisdictional error); Credit Suisse v Allerdale Borough Council [1997] QB 306, 340G (nullity wherever declared ultra vires), 343D (Lord Reid’s categories in Anisminic), 352C (all grounds for judicial review to be treated as ultra vires); cf In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64 [2019] AC 1022 §26 (“A Scottish enactment which is held by a court to be unlawful on … general public law grounds is not necessarily a nullity”); {45.2.2} (public law error/public law wrong). 44.2.2 Nullity and jurisdictional error. {P47} (jurisdictional error); R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin) [2020] QB 478 at §§73-74 (magistrates’ proceedings “a nullity” where defendant impersonated at mode of trial hearing, so that magistrates having no jurisdiction); Ridge v Baldwin [1964] AC 40, 141 (“If there is no jurisdiction, the decision is a nullity”); South East Asia Fire Bricks v Non-Metallic Mineral Products Manufacturing Employers Union [1981] AC 363, 370C-E. 44.2.3 Nullity and error of law. {P48} (error of law); Seukeran Singh v Commissioner of Police [2019] UKPC 26 at §40 (where “wrongly interpreted the law … right to declare [the] decision ‘null and void and ultra vires’”); In re A Company [1981] AC 374, 383C (“The break-through made by Anisminic [1969] 2 AC 147 was that, as respects administrative tribunals and authorities, [any] error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity”). 44.2.4 Nullity and procedural unfairness. {P61} (procedural unfairness); Attorney-General v Ryan [1980] AC 718, 727D (“the Minister … is required to observe the principles of natural 595

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justice … and, if he fails to do so, his purported decision is a nullity”); R v SSHD, ex p Fayed [1998] 1 WLR 763, 771B-773B (“nullity” would include “a breach of the requirements of fairness”); Ridge v Baldwin [1964] AC 40, 139-141 (using “nullity” for certain breaches of natural justice); South East Asia Fire Bricks v Non-Metallic Mineral Products Manufacturing Employers Union [1981] AC 363, 370D-E (“a nullity for … breach of the rules of natural justice”). 44.2.5 Nullity: other. LL v Lord Chancellor [2017] EWCA Civ 237 [2017] 4 WLR 162 at §63 (“An order made by a superior court of record (including the Crown Court) cannot be treated as a nullity”); In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64 [2019] AC 1022 at §26 (Scotland Act 1998 s.29(1) providing that “want of legislative competence” having the consequence that “a Scottish enactment is a nullity (‘not law’)”); Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655, 694A (disregard of matters which the Act requires to be taken into account meaning decision ultra vires and void); Vine v National Dock Labour Board [1957] AC 488 (improper delegation as nullity), 500, 504 (“nullity”).

44.3 Purpose/effect of ‘nullity’. The purpose of asking whether a public authority’s act is to be characterised as a ‘nullity’ is generally about consequences. The idea of ‘nullity’ had a role in considering whether a statutory ouster was effective to exclude judicial review. ‘Nullity’ can help answer questions about: (1) whether the grant of judicial review is appropriate and, if so, what remedy to order; (2) whether a legally controversial act or measure can be ignored or needs to be directly impugned by being challenged; and (3) whether one act infects (or is cured by) a subsequent act. In the contextual world of judicial review, ‘nullity’ can operate as a relative concept. 44.3.1 Nullity as a relative concept. R (Guled) v SSHD [2019] EWCA Civ 92 [2019] Imm AR 917 at §44 (Holroyde LJ: “even an unlawful decision may in some circumstances have legal consequences … nullity in this context should be treated as relative rather than absolute … the unlawful act may have legal consequences, at least for third parties, during the period before it was declared unlawful”); R (TN (Vietnam)) v SSHD [2018] EWCA Civ 2838 [2019] 1 WLR 2647 at §76 (Singh LJ, explaining that “the concepts that a decision is ‘void’ or a ‘nullity’ should be regarded as relative rather than absolute”), §80 (“the court must engage in a close analysis of the sequence of events in order to determine whether subsequent decisions are indeed to be set aside”), §85 (unfair system “does not entail the necessary conclusion that in each and every case decided pursuant to the ultra vires procedural rules a particular decision was itself procedurally unfair”); R (New London College Ltd) v SSHD [2013] UKSC 51 [2013] 1 WLR 2358 at §45 (Lord Carnwath, discussing “nullity and relativity”); Boddington v British Transport Police [1999] 2 AC 143 at 165E (Lord Slynn). 44.3.2 Whether knock-on unlawfulness. 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 Prime Minister [2019] UKSC 41 [2020] AC 373 at §69 (Lady Hale and Lord Reed: “the advice that led to [the prorogation of Parliament] was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect. … It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation. … It too was unlawful, null and of no effect”); R (AB) v SSHD [2017] EWCA Civ 59 at §69 (“The starting point … [is] that in [the] absence of any additional finding for holding that decision ‘B’ was made unlawfully, a later finding that, in the event, an earlier decision ‘A’ that was relied upon was unlawful does not, of itself, affect the validity of decision ‘B’”); Kaur v SSHD [2019] EWCA Civ 1101 [2019] 4 WLR 94 at §19 (need for “causal connection” to impugn decision to refuse leave to remain by reference to earlier decision to retain passport); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §§111-117 (discussing the case law), §§137, 142 (council’s decision unlawful because based on unlawful direction by Secretary of State); 596

P44 Nullity

Boddington v British Transport Police [1999] 2 AC 143 (leaving open difficult questions as to whether invalid administrative measures and acts capable of having legal consequences during period prior to court’s recognition of them as invalid). 44.3.3 ‘Second actor’. R (DN (Rwanda) v SSHD [2020] UKSC 7 [2020] AC 698 at §40 (Lord Carnwath, referring to Percy v Hall [1997] QB 924 and the ‘second actor’ theory, “[w]hatever [its] precise scope”); R v Central London County Court, ex p London [1999] QB 1260, 1278B-E (applying the analysis of Dr Forsyth, referred to in Boddington, in asking whether ‘second actor’ having legal power to act notwithstanding the invalidity of an act of a first actor); R (M) v Hackney LBC [2011] EWCA Civ 4 [2011] 1 WLR 2873 at §58 (‘second actor’ analysis not preventing conclusion that false imprisonment where local authority acted unlawfully in applying for mental health admission, albeit that hospital trust did not act unlawfully in detaining). 44.3.4 Legality of ‘second act’ depending on legality of earlier action. R (DN (Rwanda) v SSHD [2020] UKSC 7 [2020] AC 698 (immigration detention pending deportation unlawful where deportation depended on statutory instrument subsequently held to have been ultra vires), §17 (Lord Kerr: “there was no lawful statutory power to detain. The statutory power to which recourse had been had in deciding to make the deportation order, and in making it, was invalid. Detention … was for the express purpose of facilitating the deportation. Without the existence of a deportation order, the occasion for (much less the validity of) detention would simply not arise. To divorce the detention from the deportation would be … artificial and unwarranted”), §25 (“The detention depends on the lawfulness of the deportation itself”); R (Hemmati) v SSHD [2019] UKSC 56 [2019] 3 WLR 1156 at §97 (public law error rendering detention unlawful where “that error bears upon and is relevant to the decision to detain”). 44.3.5 Nullity and consequence: other. R (Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin) at §56(iii) (quashed planning decision and underlying reasons capable of being a material consideration); R (Rahmdezfouli) v Wood Green Crown Court [2013] EWHC 2998 (Admin) [2014] 1 WLR 1793 (magistrates’ failure to follow the statutory procedure meaning they acted without jurisdiction in committing the claimant to the Crown Court for sentence, so that the subsequent Crown Court proceedings were invalid and a nullity); Calvin v Carr [1980] AC 574, 589G-590B (decision appealable even if a nullity for breach of natural justice); Vine v National Dock Labour Board [1957] AC 488, 499 (non-delegable decision cannot be cured by appeal); R v Oxford Regional Mental Health Review Tribunal, ex p SSHD [1988] AC 120, 126D-E (Lord Bridge: “Such a fundamental flaw as vitiated the proceedings leading to [the] decision must surely call for a complete rehearing de novo”); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 353D-E (Minister not acting ultra vires because of invalidity of report before him); {36.4} (whether action/avenue curative of public law wrong). 44.3.6 Nullity: valid until set aside/whether safe to disregard or need to challenge. Beadle v HMRC [2020] EWCA Civ 562 at §4 (“a public law decision by a public body … in general … once given is presumed valid unless and until successfully challenged and in the event of a successful challenge (in a court of competent jurisdiction) … will be recognised as having had no legal effect”); R (Wingfield) v Canterbury City Council [2019] EWHC 1974 (Admin) at §63 (“A decision made by a public body is valid unless and until it is quashed”); R (TN (Vietnam)) v SSHD [2018] EWCA Civ 2838 [2019] 1 WLR 2647 at §78 (“the normal rule is that an order of a court must be treated as valid unless and until it is set aside or varied”); R (JM (Zimbabwe) v SSHD [2016] EWHC 1773 (Admin) [2017] 1 WLR 268 at §114 (notice containing requirement “was valid until challenged by the claimant and set aside or rendered legally nugatory by a court of competent jurisdiction”); R (Ali) v Secretary of State for Justice [2014] EWCA Civ 194 [2014] 1 WLR 3202 at §32 (“as a matter of general principle a public law decision which is not successfully challenged is presumed to be valid and effective, unless and until it is set aside by a court of competent jurisdiction”); Mossell (Jamaica) Ltd v Office of Utilities Regulations [2010] UKPC 1 at §44 (since Minister’s direction was ultra vires, Office to whom it was directed vindicated as having been entitled to disregard it); Smith v East Elloe Rural District Council [1956] AC 736, 769-770 (“Unless the necessary proceedings are 597

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taken at law to establish the cause of invalidity and to get [an order] quashed or otherwise upset; it will remain as effective for its ostensible purpose as the most impeccable of orders”); London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 203A-B (“A decision or other act of a more or less formal character may be invalid and subject to being so declared in court of law and yet have some legal effect or existence prior to such declaration”), 189G-H; R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 [2003] 1 WLR 127 at §56 (health professionals not entitled to readmit a patient following a mental health appeal tribunal discharge order which they regarded as flawed, unless and until that order were quashed by a court); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 365F (“Unless there is such a challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed”), 366D-E (if persons having standing do not challenge, then “the presumption of validity prevails”); Percy v Hall [1997] QB 924 (bylaws apparently valid and so constables entitled to enforce). 44.3.7 Nullity and ouster. {P28} (ouster); {28.1.17} (statutory ousters never applied to a ‘nullity’); R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§79, 82 (doubting the continued utility of using “nullity” language in the context of statutory ousters). 44.3.8 Nullity and part-reviewability of the Crown Court. {32.2.6} (response to the limitations on Crown Court reviewability: nullity/jurisdictional error). 44.3.9 Nullity and remedy. Grafton Group (UK) plc v Secretary of State for Transport [2016] EWCA Civ 561 [2017] 1 WLR 373 at §18 (effect of quashing order “to render the instrument in question as if it had never been”); R v Dorking Justices, ex p Harrington [1984] AC 743, 753B-C (quashing order not appropriate where “orders were a nullity”; mandatory order the proper remedy); R v Horseferry Road Magistrates’ Court, ex p DPP [1997] COD 172, 174 (mandatory order made); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 196B (Lord Pearce: “Where a decision is found to be in excess of or without jurisdiction, there is strictly no need to quash it, since it is a nullity”); Percy v Hall [1997] QB 924 (even if by-law substantially invalid (for uncertainty), arresting officers would have been entitled to defence of lawful justification in action for damages alleging wrongful arrest and false imprisonment).

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C. GROUNDS FOR JUDICIAL REVIEW public law wrongs justifying the Court’s intervention P45 P46 P47 P48 P49 P50 P51 P52 P53 P54 P55 P56 P57 P58 P59 P60 P61 P62 P63 P64 P65

Classifying grounds Ultra vires Jurisdictional error Error of law Error of fact Abdication/fetter Insufficient inquiry Bad faith/improper motive Frustrating the legislative purpose Substantive unfairness Consistency/equal treatment Relevancy/irrelevancy Unreasonableness Proportionality HRA violation Constitutionality Procedural unfairness Consultation Bias Reasons External vitiation {1.1} means “see paragraph 1.1”

600

P45 Classifying grounds. Inapt for rigid categorisation, judicial review grounds fit broadly within a classification of unlawfulness, unreasonableness and unfairness. 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

45.1 The conventional threefold division. The enduring overall classification of grounds for judicial review is a threefold division into unlawfulness (illegality), unreasonableness (irrationality) and procedural unfairness (procedural impropriety). These groupings are neither exhaustive nor mutually exclusive. The classification is valuable, resting on two important distinctions: one between substance (unlawfulness and unreasonableness) and procedure (procedural unfairness); the other between hard-edged questions (unlawfulness and unfairness) and soft questions (unreasonableness). 45.1.1 The GCHQ threefold division of judicial review grounds. Council of Civil Service Unions v Minister for the Civil Service (‘GCHQ’) [1985] AC 374, 410D-411B (Lord Diplock: “one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’”), 414E-H (Lord Roskill), 415B-C (importance of “making clear the differences between each ground”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §35 (Lord Hoffmann, referring to “review on ordinary principles of legality, rationality and procedural impropriety”); R v SSHD, ex p Brind [1991] 1 AC 696, 750D (applying the “triple categorisation”); R v SSHD, ex p Launder [1997] 1 WLR 839, 856G. 45.1.2 The dangers of a multiplicity of labels. R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §40 (Lord Carnwath, warning “how misleading it can be to take out of context a single expression, such as ‘conspicuous unfairness’, and attempt to elevate it into a free-standing principle of law”), §50 (Lord Sumption: “In public law, as in most other areas of law, it is important not unnecessarily to multiply categories. It tends to undermine the coherence of the law by generating a mass of disparate special rules distinct from those applying in public law generally or those which apply to neighbouring categories”). 45.1.3 GCHQ threefold classification was never exhaustive or mutually exclusive. Wheeler v Leicester City Council [1985] AC 1054, 1078B-C (Lord Roskill: “Those three heads are not exhaustive, and as Lord Diplock pointed out, further grounds may hereafter require to be added. Nor are they necessarily mutually exclusive”); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 249D-E (threefold classification a “valuable … but certainly not exhaustive analysis”). 45.1.4 Categorisation does not fetter the developing law. R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §112 (Lord Phillips (for the CA): “Starting from the received checklist of justiciable errors set out by Lord Diplock in the [GCHQ] case [1985] AC 374, the courts (as Lord Diplock himself anticipated they would) have developed an issue-sensitive scale of intervention to enable them to perform their constitutional function”); R v Panel on Take-overs and Mergers, ex p Guinness Plc [1990] 1 QB 146, 160A-C (Lord Donaldson MR, referring to Lord Diplock in GCHQ as having “formulated the currently accepted categorisations in an attempt to rid the courts of shackles bred of the technicalities surrounding the old prerogative writs. But he added … that further development on a case by case basis might add further grounds. In the context of the present appeal he might have considered an innominate ground

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formed of an amalgam of his own grounds with perhaps added elements … for he would surely have joined in deploring any use of his own categorisation as a fetter on the continuous development of the new ‘public law court’”); R v Secretary of State for the Environment, ex p Greater London Council 3 April 1985 unreported (Mustill LJ, criticising “the assumption that unless a particular case can be forced into one of the categories on the list, there is no power to give [a remedy], thus stunting the free growth of this developing area of law”). 45.1.5 Other broad summaries of the grounds for judicial review. R (JP) v NHS Croydon Clinical Commissioning Group [2020] EWHC 1470 (Admin) at 9(iii) (Mostyn J: “A person exercising an executive power must: (a) not act dishonestly or in bad faith or in breach of a person’s Convention rights; (b) direct himself properly in law and properly apply it; (c) call his own attention to the matters which he is bound to consider by asking himself the right question and taking reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly; (d) exclude from his consideration matters which are factually incorrect or otherwise irrelevant to what he has to consider; and (e) give sufficient reasons for his decision so that any person affected can know why he has won or lost, and any judicial review court can conduct a meaningful review. The natural justice principle of nemo iudex in causa sua is captured by the requirement of acting in good faith. The principle of audi alteram partem is caught by the requirement of calling attention to the matters the decision-maker is bound to consider”); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 at §32 (Lord Bingham: “the Director … must seek to exercise his powers so as to promote the statutory purpose for which he is given them. He must direct himself correctly in law. He must act lawfully. He must do his best to exercise an objective judgment on the relevant material available to him. He must exercise his powers in good faith, uninfluenced by any ulterior motive, predilection or prejudice”); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 862C (“Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers”); Engineers & Managers Association v Advisory Conciliation & Arbitration Service [1980] 1 WLR 302, 318F (whether shown to have “misdirected itself in law, or to have failed to observe the requirements of natural justice, or to have failed to consider relevant matters; or to have conducted the reference in a way in which no reasonable advisory conciliation or arbitration service, paying due regard to the statute, could have conducted it”). 45.1.6 Codified formulations of the grounds for judicial review: illustrations. R v Secretary of State for Transport, ex p Pegasus Holdings (London) Ltd [1988] 1 WLR 990, 1001E-F, describing Recommendation No R(80)2 of the Committee of Ministers of the Council of Europe 11 March 1980 (“Basic principles” requiring that an “administrative authority, when exercising a discretionary power: (1) does not pursue a purpose other than that for which the power has been conferred; (2) observes objectivity and impartiality, taking into account only the factors relevant to the particular case; (3) observes the principle of equality before the law by avoiding unfair discrimination; (4) maintains a proper balance between any adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose which it pursues; (5) takes its decision within a time which is reasonable having regard to the matter at stake; (6) applies any general administrative guidelines in a consistent manner while at the same time taking account of the particular circumstances of each case; … (7) Any general administrative guidelines which govern the exercise of a discretionary power are: (i) made public; or (ii) communicated in an appropriate manner and to the extent that is necessary to the person concerned, at his request, be it before or after the taking of the act concerning him; (8) Where an administrative authority, in exercising a discretionary power, departs from a general administrative guideline in such a manner as to affect adversely the rights, liberties or interests of a person concerned, the latter is informed of the reasons for this decision. This is done either by stating the reasons in the act or by communicating them, at his request, to the person concerned in writing within a reasonable time; … (11) A court or other independent body which controls the exercise of a discretionary power has such powers of obtaining information as are necessary for the exercise of its function”); 602

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CO Williams Construction v Donald George Blackman [1995] 1 WLR 102, 105D-F, describing the Barbados Administrative Justice Act s.4 (statutory judicial review grounds “include the following: (a) that an administrative act or omission was in any way unauthorised or contrary to law; (b) excess of jurisdiction; (c) failure to satisfy or observe conditions or procedures required by law; (d) breach of the principles of natural justice; (e) unreasonable or irregular or improper exercise of discretion; (f) abuse of power; (g) fraud, bad faith, improper purposes or irrelevant considerations; (h) acting on instructions from an unauthorised person; (i) conflict with the policy of an Act of Parliament; (j) error of law, whether or not apparent on the face of the record; (k) absence of evidence on which a finding or assumption of fact could reasonably be based; and (l) breach of or omission to perform a duty”).

45.2 Root concepts and unifying themes. Public law uses broad and principled concepts like ‘legality’, ‘ultra vires’, ‘abuse of power’, ‘reasonableness’ and ‘fairness’. Such terms are candidates to provide a broad unifying philosophy for all grounds for judicial review, or for groupings (eg grounds for substantive review of discretionary power). In the same way, the concept of ‘nullity’ can serve as a universal description of the vitiating consequence of judicial review grounds. Locating all grounds under a banner of ‘ultra vires’ portrays the Courts as doing no more than the judicially discerned bidding of a supreme legislature. Locating all common law grounds for substantive review of discretionary power under a banner of ‘reasonableness’ carries an important reminder of the forbidden method and the primary decision-maker’s built-in latitude. Judicial review grounds are dynamic, contextual and objective common law standards. They have emerged as nuanced species from broad philosophical principles. It is debatable whether, in those circumstances, unifying labelling is essential. 45.2.1 Objective standards. R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1130B (Laws LJ: “Fairness and reasonableness (and their contraries) are objective concepts; otherwise there would be no public law, or if there were it would be palm tree justice”); 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”); A v SSHD [2004] EWCA Civ 1123 [2005] 1 WLR 414 (CA) at §251 (Laws LJ, describing “State power” as “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”); In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §49 (“The question whether justification has been demonstrated must be assessed objectively”); {14.2.1} (nothing personal and objective standards). 45.2.2 Public law error/public law wrong. For uses of the phrase “public law error”, see eg R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §70; Hutton v Criminal Injuries Compensation Authority [2016] EWCA Civ 1305 [2017] ACD 20 at §58(ii); R (TM (Kenya)) v SSHD [2019] EWCA Civ 784 [2019] 4 WLR 109 at §67. For the phrase “public law wrong”, see eg R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §173 and Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 at 562D-E. 45.2.3 Whether ultra vires is a unifying theme. R v Hull University Visitor, ex p Page [1993] AC 682, 701E (Lord Browne-Wilkinson: “If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is Wednesbury unreasonable, he is acting ultra vires his powers and therefore unlawfully”); Boddington v British Transport Police [1999] 2 AC 143, 164B (Lord Browne-Wilkinson: “I adhere to my view that the juristic basis of judicial review is the doctrine of ultra vires”), 171F-172A (Lord Steyn: “Leaving to one side the separate topic of judicial review of non-legal powers exercised by non-statutory bodies, I see no reason to depart from the orthodox view that ultra vires is ‘the central principle of administrative law’”); R v Wicks [1998] AC 92, 105C-D (“The greatly widened supervisory role now exercised by the court emerged largely from a much expanded application of the concept of ultra vires”); Credit Suisse v Allerdale Borough 603

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Council [1997] QB 306, 352C (“The essence of the modern law of judicial review is that decisions which involve illegality, irrationality or procedural impropriety … are treated as ultra vires”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs [2007] EWCA Civ 498 [2008] QB 365 (CA) at §§59-61 (unhelpful to treat ultra vires as the underpinning, at least for prerogative power) (HL is at [2008] UKHL 61 [2009] AC 453); {45.4.2} (all grounds as ultra vires/unlawfulness/error of law); In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64 [2019] AC 1022 at §26 (distinguishing, in the context of devolved legislation, between “a want of legislative competence and more general grounds for judicial review on public law grounds”); R (ASK) v SSHD [2019] EWCA Civ 1239 at §55 (Hickinbottom LJ: “Where a power is delegated to a public body, there is a presumption that Parliament intended it to be exercised reasonably”), §63 (“where a power is delegated to a public body, there is a presumption that Parliament intended it to be exercised fairly”). 45.2.4 Common law standards. R (Kambadzi) v SSHD [2011] UKSC 23 [2011] 1 WLR 1299 at §72 (Lady Hale, referring to “requirements which are imposed, not by statute, but by the common law”); {7.7} (basic fairness/natural justice); {7.8} (basic reasonableness); {7.6} (constitutional/common law rights); {7.7.4} (natural justice/procedural fairness having a common law source). 45.2.5 Abuse of power as a root concept.108 Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA Civ 678 [2010] IRLR 786 at §55 (Sedley LJ: “Abuses of power … are what all public law is at root about”); R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1129F-G (Laws LJ: “Abuse of power has become, or is fast becoming, the root concept which governs and conditions our general principles of public law”); {1.2.17} (the rule of law: the constitutional imperative of preventing abuse of power); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 249C-D (“The ground upon which the courts will review the exercise of an administrative discretion by a public officer is abuse of power”); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 862C (“Judicial review is available where a decision-making authority … abuses its powers”); R v SSHD, ex p Brind [1991] 1 AC 696, 751B (“judicial review [is] a remedy invented by the judges to restrain the excess or abuse of power”), 765E (“Wednesbury unreasonableness is a branch of the abuse, or misuse, of power”); R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 at §44 (legitimate expectation as a “particular form of the more general concept of abuse of power”); {45.3.8} (review of discretion: ‘abuse of power’); R (S) v SSHD [2007] EWCA Civ 546 at §§39-40 (abuse of power as a general concept but not a “magic ingredient, able to achieve remedial results which other forms of illegality cannot match”), §43 (depending on unfairness not “flagrancy of the administrative failing”); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 554A-G (decision “unlawful and an abuse of the prerogative power”); {45.3.8} (review of discretion: ‘abuse of power’); R (Sisangia) v Director of Legal Aid Casework [2016] EWCA Civ 24 [2016] 1 WLR 1373 at §21 (“abuse of position or power” in the legal aid legislation as “a recognised juridical concept which, like many other public law concepts, is both flexible and context-specific”). 45.2.6 Fairness as a root concept. R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §30 (Lord Steyn: “fairness is the guiding principle of our public law”); {7.7} (basic fairness/ natural justice); {1.2.16} (the rule of law and basic fairness/due process); {49.3.3} (‘material mistake of fact, leading to unfairness’: the E criteria); {P54} (substantive unfairness); {P61} (procedural unfairness); {54.2.3} (substantive legitimate expectation (Coughlan): fairness/ justification test, subsequently described as proportionality {54.2.6}). 45.2.7 Nullity. {44.2.1} (all public law grounds/wrongs/flaws produce ‘nullity’).

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equivalent paragraph in a previous edition was relied on in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2007] EWCA Civ 498 [2008] QB 365 at §60 (Sedley LJ).

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45.2.8 The ‘reasonable observer’ as a general theme. {63.3.1} (apparent bias: fair-minded and informed observer/real possibility); Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74 [2016] 1 WLR 85 at §34 (condition in statutory licence or consent interpreted by asking “what a reasonable reader would understand the words to mean”); R v Chelsea College of Art and Design, ex p Nash [2000] ELR 686 at §48 (asking, in the context of procedural irregularity: “Would a reasonable person, viewing the matter objectively and knowing all the facts which are known to the Court, consider that there was a risk that the procedure adopted by the tribunal in question resulted in injustice or unfairness?”); Sheridan v Stanley Cole (Wainfleet) Ltd [2003] EWCA Civ 1046 [2003] 4 All ER 1181 at §32 (fair-minded observer test applicable to Art 6 question of whether fair hearing); R (Carson) v Secretary of State for Work and Pensions [2003] EWCA Civ 797 [2003] 3 All ER 577 at §61 (use of “rational and fair-minded person” as to whether comparable circumstances calling for positive justification under HRA/ECHR Art 14) (HL is at [2005] UKHL 37 [2006] 1 AC 173).

45.3 Reviewing discretionary power: Wednesbury.109 Judicial review of discretionary powers has conventionally been classified by reference to the Wednesbury case, an enduring shorthand for a bundle of legal standards including the duty to have regard to all (and only) relevant considerations, and to act reasonably. ‘Reasonableness’ (or irrationality) is frequently used as an umbrella term for the nuanced set of grounds on which discretionary power can be judicially reviewed. ‘Abuse of power’ is another broad overarching concept. The analytical approach to substantive review of discretionary powers must always remember the forbidden method and the primary decision-maker’s built-in latitude. 45.3.1 Reviewing discretion and Wednesbury: a broad summary. R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 at §127 (Lord Neuberger: “Where a member of the executive … is given a statutory discretion to take a particular course or action … the court has jurisdiction to overrule or quash the exercise of that discretion. However, the exercise of that jurisdiction is 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. The area covered by judicial review is so great that it is impossible to be exhaustive, but the normal principle is that an executive decision can only be overruled by a court if (i) it was made in excess of jurisdiction, (ii) it was effected for an improper motive, (iii) it was an irrational decision, or, as it is sometimes put, a decision which no rational person in the position of the decision-maker could have taken, or (iv) the decision-maker took into account irrelevant matters or failed to take into account relevant matters. An attack on an executive decision based on such grounds is often known as a Wednesbury challenge. … If one or more of these grounds (which often overlap to some extent) is or are satisfied, the court may (but need not in every case) quash the decision. If none of these grounds is satisfied, then the decision will almost always stand”). 45.3.2 Wednesbury principles 1: unreasonable outcome. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233-234 (Lord Greene MR: “The court is entitled to investigate the action of the local authority with a view to seeing whether they have … come to a conclusion so unreasonable that no reasonable authority could ever have come to it”); R v Tower Hamlets LBC, ex p Chetnik Developments Ltd [1988] AC 858, 873C (describing Wednesbury as “the classic exposition of the principle of reasonableness in relation to the exercise of administrative discretions”); R v Secretary of State for the Environment, ex p Hammersmith & Fulham LBC [1991] 1 AC 521, 595C-D (“the classic statement of the basis for a challenge to an administrative decision on the ground of irrationality”); Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 177E (“exercising a

109The

equivalent paragraph in a previous edition was relied on in R v Parole Board, ex p Blake [2000] Prison LR 38 at §50 (Jackson J).

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statutory discretion in a wholly unreasonable way” as “the classical ‘Wednesbury’ case for judicial review”); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 533D (Lord Keith: “unreasonable, in the Wednesbury sense”); R v SSHD, ex p Onibiyo [1996] QB 768, 785D (Sir Thomas Bingham MR, referring to “challenge on any Wednesbury ground, of which irrationality is only one”); {57.1.5} (first distinct aspect of unreasonableness: outcome (terminus)). 45.3.3 Wednesbury principles 2: relevancies and irrelevancies. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233 (Lord Greene MR: “The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account”); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 533D; R v SSHD, ex p Brind [1991] 1 AC 696, 751D; {57.1.6} (second distinct aspect of unreasonableness: approach (route)). 45.3.4 Wednesbury principles 3: error of law. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229 (“a person entrusted with a discretion must … direct himself properly in law”); Bromley LBC v Greater London Council [1983] 1 AC 768, 821A-B (Wednesbury principle including “decisions reached in the exercise of a statutory discretion that are unlawful because it can be shown that in reaching the decision the body exercising the discretion has acted on an erroneous view of the applicable law”). 45.3.5 The familiarity of Wednesbury. Holgate-Mohammed v Duke [1984] AC 437, 443B (Wednesbury as “too familiar to call for repetitious citation”); R v SSHD, ex p Benwell [1985] QB 554, 568A-B (Hodgson J: “In this jurisdiction everyone by now knows Lord Greene MR’s summation of the Wednesbury principles by heart and, as has happened to Donoghue v Stevenson [1932] AC 562, no one now even opens the report of the Wednesbury case”); Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, 526H (“the definitive judgment”); John Dee Limited v Customs and Excise Commissioners The Times 17 February 1995 (Turner J) (“oft cited, but now seldom studied”). 45.3.6 Importance of reasonableness as an overarching legal criterion. R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §41 (Lord Carnwath: “procedural unfairness is well-established and well-understood. Substantive unfairness on the other hand … is not a distinct legal criterion. Nor is it made so by the addition of terms such as ‘conspicuous’ or ‘abuse of power’. Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged”). 45.3.7 Limits of Wednesbury. R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 249B-C (Lord Scarman: “‘Wednesbury principles’ is a convenient legal ‘shorthand’” but not to “be treated as a complete, exhaustive, definitive statement of the law”); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1047F-G (“there is no universal rule as to the principles on which the exercise of a discretion may be reviewed: each statute or type of statute must be individually looked at”); Congreve v Home Office [1976] QB 629, 657C (Roskill LJ, referring to “what was authoritatively laid down in” Wednesbury and Padfield: “the law does not stand still, and those cases, while stating the relevant principles, leave open their application to the particular facts of particular cases which from time to time come before the courts”). 45.3.8 Review of discretion: ‘abuse of power’. R (Merida Oil Traders Ltd) v Central Criminal Court [2017] EWHC 747 (Admin) [2017] 1 WLR 3680 at §64 (Gross LJ and Leggatt J: here, “a clear abuse of the statutory power”); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 249C-D (Lord Scarman: “The ground upon which the courts will review the exercise of an administrative discretion by a public officer is abuse of power. Power can be abused in a number of ways: by a mistake of law in misconstruing the limits imposed by statute (or by common law in the case of a common 606

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law power) upon the scope of the power; by procedural irregularity; by unreasonableness in the Wednesbury sense; or by bad faith or an improper motive in its exercise”), applied in R v Hillingdon LBC, ex p Puhlhofer [1986] AC 484, 518D (Lord Brightman: “The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – eg. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness”); R (Hemmati) v SSHD [2019] UKSC 56 [2019] 3 WLR 1156 at §§82, 94 (Lord Kitchin using the phrase “abuse of power”); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 862C (judicial review where defendant “abuses its powers”); Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 192C-D (whether defendant has “stepped beyond the proper limits of its power”); R v Hull University Visitor, ex p Page [1993] AC 682, 693G-H (“abuse of power” a concept distinct from mere error of law); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §69 (Lord Dyson, discussing different meanings of “abuse of power”); {45.2.5} (abuse of power as a root concept). 45.3.9 Review of discretion: ‘abuse of jurisdiction’. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§122-123 (Lord Carnwath, speaking, alongside “excess of jurisdiction”, of “abuse of jurisdiction” as including “breach of basic principles governing the making of … decisions” including “natural justice and good faith” and “the essential requirements laid down by the rule of law for [a statutory decision-making process] to be effective”).

45.4 Overlapping grounds and interchangeable labels.110 Like all judicial review principles, the grounds for judicial review are flexible. Grounds have blurred edges and overlap. They are open to reinterpretation. Many are intersectional. Some can be seen as nuanced manifestations of broader principles from which they originated, or as freestanding principles. Frequently, the ‘flaw’ which justifies the Court’s interference may be described in several different ways. 45.4.1 Grounds merging into one another. Boddington v British Transport Police [1999] 2 AC 143, 152E-F (Lord Irvine LC: “the various grounds for judicial review run together. The exercise of a power for an improper purpose may involve taking irrelevant considerations into account, or ignoring relevant considerations; and either may lead to an irrational result. The failure to grant a person affected by a decision a hearing, in breach of principles of procedural fairness, may result in a failure to take into account relevant considerations”), 170E (“the taking into account by a decision maker of extraneous considerations is variously treated as substantive or procedural”); R v SSHD, ex p Oladehinde [1991] 1 AC 254 (CA), 280E (Lord Donaldson MR: “it would be a mistake to approach the judicial review jurisdiction as if it consisted of a series of entirely separate boxes into which judges dipped as occasion demanded. It is rather a rich tapestry of many strands, which cross, re-cross and blend to produce justice”); Wheeler v Leicester City Council [1985] AC 1054, 1078B-C (classic threefold division not “necessarily mutually exclusive”). 45.4.2 All grounds as ultra vires/unlawfulness/error of law. {45.2.3} (whether ultra vires is a unifying theme); {2.5.2} (‘point of law’/‘error of law’ jurisdiction includes all judicial review grounds); S v Special Educational Needs Tribunal [1995] 1 WLR 1627 (treating all orthodox judicial review grounds as questions of “law”); Stefan v General Medical Council (No 2) [2002] UKPC 10 at §6 (“question of law” including sufficiency of evidence and unfairness); R (DPP) v Birmingham City Justices [2003] EWHC 2352 (Admin) at §37 (Crane J: “whether the decision is what in former times would have been called a nullity, or a breach of the rules of natural justice, or simply a decision which was Wednesbury unreasonable and hence unlawful, the conclusion is the same, namely: the decision is unlawful”); Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997, 1058B-G (judicial review

110The

equivalent paragraph in a previous edition was relied on in Boddington v British Transport Police [1999] 2 AC 143, 170E (Lord Steyn).

607

GROUNDS FOR JUDICIAL REVIEW

“will only issue if he acts unlawfully”); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 195B-C (wide concept of “lack of jurisdiction”); R (Ben Hoare Bell Solicitors) v Lord Chancellor [2015] EWHC 523 (Admin) [2015] 1 WLR 4175 at §17 (Padfield as “a species of ultra vires”); {47.1} (jurisdictional error); {44.2.1} (all public law grounds/wrongs/flaws produce ‘nullity’). 45.4.3 Overlap between unlawfulness and unreasonableness. R (Rehman) v Wakefield City Council [2019] EWCA Civ 2166 [2020] PTSR 765 at §24 (decision unlawful because enforcement costs a legal irrelevancy on the correct interpretation of the statute); R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322 at §55 (“so unreasonable as to be unlawful”); R (O) v East Riding of Yorkshire County Council [2011] EWCA Civ 196 [2012] PTSR 328 at §123 (rejecting pleading point, as to whether irrationality had been pleaded as a distinct ground, where “the complaints or illegality and irrationality become difficult to disentangle”); R v Hendon Justices, ex p DPP [1994] QB 167, 173F-G (“It is implicit in the enactment that a conferred power is not to be exercised unreasonably. … If it is, then the exercise is outwith the conferred power and can be characterised as ‘illegal’, ‘void’ or a ‘nullity’”); Bromley LBC v Greater London Council [1983] 1 AC 768, 821H (treating “the question of discretion” as “inseparable from the question of construction”), 836F-G (here “two ways of making the same point”); Chief Adjudication Officer v Foster [1993] AC 754, 765B-D (citing the observation from the CA that “One reason at least for setting aside subordinate legislation upon grounds of ‘Wednesbury unreasonableness’ … would be that Parliament never intended the regulation-making power to be exercised in that way. That is really indistinguishable from a question of ‘existence’ or ‘vires’”); Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 177E (Lord Scarman, characterising the challenge as “exercising a statutory discretion in a wholly unreasonable way”), 163E (Lord Fraser, characterising the same challenge as being that the defendant “has acted illegally, in the sense of ultra vires”); Engineers & Managers Association v Advisory Conciliation & Arbitration Service [1980] 1 WLR 302 (approached by the HL in terms of irrationality (Lord Scarman at 318G), “ultra vires” (Lord Scarman at 318E), misdirection (Lord Diplock at 309A) and frustrating the policy of the Act (Lord Diplock at 306D)); R v Dyfed County Council, ex p Manson [1995] Env LR 83, 99, 102 (whether by-law wholly unreasonable and so ultra vires); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229 (using ‘unreasonable’ “in a rather comprehensive sense” including that “a person entrusted with a discretion must, so to speak, direct himself properly in law”); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 249B-C (referring to Wednesbury principles as describing “the circumstances in which the courts will intervene to quash as being illegal the exercise of an administrative discretion”); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 533F (“The exercise by the Secretary of State of his discretion … can only be quashed by the court if the court is satisfied that the Secretary of State acted unlawfully”); R v SSHD, ex p Brind [1991] 1 AC 696, 755A and 757H (“The issue … is whether [the defendant] has exceeded his discretionary powers, thus acting ultra vires and therefore unlawfully”), 757H (“If no reasonable minister properly directing himself would have reached the impugned decision, the minister has exceeded his powers and thus acted unlawfully”); R v St Albans Crown Court, ex p Cinnamond [1981] QB 480, 484C, F-G (whether ‘excess of jurisdiction’ involves asking Wednesbury question: whether “no reasonable authority could have reached this decision without a self-misdirection”); R v Sunderland City Council ex p Redezeus Ltd (1995) 27 HLR 477 (having regard to matters beyond those set out in statute means acted beyond statutory powers); Holgate-Mohammed v Duke [1984] AC 437, 446C (referring to “an exercise of discretion that was ultra vires under Wednesbury principles because he took into consideration an irrelevant matter”); R v London Borough of Lambeth, ex p G [1994] ELR 207, 218E (discretion “not exercised consistently with the statutory provisions” was “unreasonable in the Wednesbury sense”); R v Immigration Appeal Tribunal, ex p Singh (Bakhtaur) [1986] 1 WLR 910, 919B-D (decision made without taking account of relevancy would be “not in accordance with the law”); R v Secretary of State for the Environment, ex p Hammersmith & Fulham LBC [1991] 1 AC 521, 597D-E (Lord Bridge: “If the court concludes, as the House did in the Padfield case [1968] AC 997, 608

P45 Classifying grounds

that a minister’s exercise of a statutory discretion has been such as to frustrate the policy of the statute, that conclusion rests upon the view taken by the court of the true construction of the statute which the exercise of the discretion in question is then held to have contravened. The administrative action or inaction is then condemned on the ground of illegality. Similarly, if there are matters which, on the true construction of the statute conferring discretion, the person exercising the discretion must take into account and others which he may not take into account, disregard of those legally relevant matters or regard of those legally irrelevant matters will lay the decision open to review on the ground of illegality”); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 571E (whether regarded “as an abuse of the power which he was given … or as the exercise of a power which he has not been given, does not matter. The result is the same either way”). 45.4.4 Overlap between unlawfulness and unfairness. R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2013] EWHC 3087 [2014] 1 WLR 2540 (unlawful to impose licence condition before statutory process completed); Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, 1263D-E (if order made in breach of “natural justice it may equally be said that the order is not within the powers of the Act and that a requirement of the Act has not been complied with. For it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles”); {47.1.22} (procedural unfairness as ‘jurisdictional error’); R v Secretary of State for the Environment, ex p Davidson (1990) 2 Admin LR 94, 95H-96A (breach of natural justice as “error of law”); In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at §7 (bias as question of law); Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 [2006] 1 WLR 781 at §6 (“whether a tribunal was properly constituted or was acting in breach of the principles of natural justice is essentially a question of law”); Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2004] UKPC 26 [2005] 1 AC 190 at §91 (explaining that an “error of law” caused “the unfairness of the hearing”); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 866F-G, 866F (Lord Templeman, speaking of HTV Ltd v Price Commission [1976] ICR 170: “If the Price Commission had not misconstrued the code, they would not have acted ‘inconsistently and unfairly’”). 45.4.5 Overlap between unreasonableness and unfairness. R (NS) v SSHD [2019] EWHC 861 (Admin) [2019] ACD 60 at §90 (Darryl Allen QC, describing “failure to consider all relevant evidence” as “contrary to basic principles of procedural fairness”); R (Pharmaceutical Services Negotiating Committee) v Secretary of State for Health [2018] EWCA Civ 1925 [2019] PTSR 885 at §82 (review of duty to “have regard” to relevant factors involving “a review of the process”); 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”); JA (Afghanistan) v SSHD [2014] EWCA Civ 450 [2014] 1 WLR 4291 at §24 (approach based on “anxious scrutiny”), §25 (same point based on “the common law principle of fairness”); R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §27 (Laws LJ: “it is not always useful to assess the merits of public law claims by making distinctions such as that between rights of procedural fairness and the discipline of sound reasoning. These two goods often run into one another, and austere legalisms may stunt rather than prosper the principled development of the law”); R v SSHD, ex p Asif Mahmood Khan [1984] 1 WLR 1337, 1352D (Dunn LJ: “an unfair action can seldom be a reasonable one”); R v Chief Constable of the West Midlands Police, ex p Carroll (1995) 7 Admin LR 45, 54E-F (agreeing “with both those ways of putting the matter”); Ceylon University v Fernando [1960] 1 WLR 223, 236 (asking whether action, in the “exercise of the wide discretion as to procedure … sufficiently complied with the requirements of natural justice”); R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855 at §§39, 44 (possible to view question of unjustified refusal of anonymity as unreasonableness or unfairness); British Oxygen Co Ltd v Board of Trade [1971] AC 610, 625D-E (policy unobjectionable “provided the authority is always willing to listen to anyone with something new to say”); 609

GROUNDS FOR JUDICIAL REVIEW

R v London Borough of Newham, ex p Ajayi (1996) 28 HLR 25, 29 (failure to explore certain matters as unfairness); R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 324f-g (“the maxim audi alteram partem is … one application of the wider principle that all relevant matters must be taken into account”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1162H (Lord Hailsham: “he took into account matters which were never put to the [claimant] in connection with the relevant inquiry”); R v Lambeth LBC, ex p N [1996] ELR 299 (function of adequate consultation as ensuring provision of the necessary material to make a proper and reasoned final decision); Ceylon University v Fernando [1960] 1 WLR 223, 232 (natural justice including absence of bad faith); R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 345C (error of fact characterised here as “a breach of the rules of natural justice and constituted unfairness”); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 864H (referring to “cases in which the court has granted judicial review on grounds of ‘unfairness’ amounting to abuse of power” where “there has been some proven element of improper motive”); R (Kuteh) v Upper Tribunal [2012] EWHC 2196 (Admin) (tribunal’s failure to consider a significant witness statement as a serious procedural irregularity). 45.4.6 Overlap between aspects of unlawfulness. McCann v State Hospitals Board for Scotland [2017] UKSC 31 [2017] 1 WLR 1455 at §§3, 40-41 (misdirection as to applicable statute and failure to ask statutory question treated as ultra vires); R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 at §23 (subordinate legislation “ultra vires” if “made for a purpose … outside the scope of the statutory power”); Bromley LBC v Greater London Council [1983] 1 AC 768, 836D (“ultra vires” argument involving GLC having “misdirected itself in law” and “having proceeded upon an error of law”); {47.1.25} (error of law: Anisminic); {47.1.10} (jurisdiction: acting without power/wrongly exercising power); {46.1.5} (ultra vires: acting without power). 45.4.7 Overlap between aspects of unreasonableness. R v SSHD, ex p Brind [1991] 1 AC 696, 765E (“Wednesbury unreasonableness is a branch of the abuse, or misuse, of power”); R v Tower Hamlets LBC, ex p Chetnik Developments Ltd [1988] AC 858, 873C (“common derivation” of “irrelevance and irrationality”); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229 (unreasonableness and irrelevancy: “all these things run into one another”); R v Local Government Commission for England, ex p North Yorkshire County Council 11 March 1994 unreported (whether LGC ignored option of the status quo essentially a complaint that they “approached their task with closed minds”).

610

P46 Ultra vires. A public authority must not exceed the powers conferred on it by, or breach the duties or rights imposed by, properly interpreted higher legislative authority. 46.1 Ultra vires 46.2 Interpretation to allow validity: reading down/in

46.1 Ultra vires.111 Ultra vires, a principle originally borrowed from company law, involves a public authority acting beyond its prescribed powers. In its purest and narrowest sense, that means action incompatible with the express limits imposed by the instrument which conferred the power being exercised. A broader sense embraces breaches of duties and rights imposed, expressly or impliedly, by that empowering instrument or imposed by another instrument emanating from a superior legal authority. So, ultra vires action can be thought of as action – including rule-making and policy-making – which is incompatible with limits imposed by any applicable source from a superior (higher) level in the hierarchy. The broadest sense of ultra vires is as an all-embracing concept covering all public law flaws. 46.1.1 Ultra vires origins: borrowed from company law. R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs [2007] EWCA Civ 498 [2008] QB 365 (CA) at §59 (Sedley LJ: “The concept of ultra vires acts was borrowed during the 19th century by public law from company law, where powers are spelt out in articles of association and acts can be measured against them. The same is frequently the case in public law: hence the transferability of the concept”) (HL is [2008] UKHL 61 [2009] AC 453); Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA Civ 678 [2010] IRLR 786 at §50 (Sedley LJ: “The ultra vires doctrine was imported into public law during the latter part of the 19th century from its original home, company law, where … its aim was to stop the repeated transgression of their own legal powers by joint-stock railway companies”), §56 (an unmissable citation of the 1894 Vartry waterworks picnic case); De Smith, Judicial Review of Administrative Action (1st edition, 1959) 57. 46.1.2 Ultra vires in a nutshell. R (A) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696 [2019] 1 WLR 2979 at §1 (Sir Terence Etherton MR, Davis and Asplin LJJ, describing “ultra vires” as “beyond the powers of the Secretary of State”); R v Secretary of State for Trade and Industry, ex p Thomson Holidays Ltd [2000] ECC 321 at §18 (Laws LJ: “ultra vires … is a perfectly respectable shorthand to identify that legal defect or vice which consists in the making of a subordinate instrument which is not authorised by the text of its supposed parent in main legislation, given the correct construction of both measures”); R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 (DC) at §46 (Laws LJ, explaining that “nothing could be more elementary” than that even a legislative body “created by a measure passed by a body which is legally prior to it must act within the confines of the power thereby conferred”). 46.1.3 Whether ultra vires the sole underpinning for review grounds. {45.2.3} (whether ultra vires is a unifying theme); {45.4.2} (all grounds as ultra vires/unlawfulness/error of law). 46.1.4 The Court determines existence and limits of power. {16.4} (interpretation as a hard-edged question); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 (speaking of prerogative power) at §36 (Lady Hale and Lord Reed: “no question of justiciability,

111The

equivalent paragraph in a previous edition was relied on in New Saints FC Ltd v Football Association of Wales Ltd [2020] EWHC 1838 (Ch) at §75 (Marcus Smith J).

GROUNDS FOR JUDICIAL REVIEW

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”), §38 (“In principle, if not always in practice, it is relatively straightforward to determine the limits of a statutory power, since the power is defined by the text of the statute. Since a prerogative power is not constituted by any document, determining its limits is less straightforward. Nevertheless, every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie”). 46.1.5 Ultra vires: acting without power. Qualter v Preston Crown Court [2019] EWHC 2563 (Admin) [2020] 1 WLR 1073 at §30 (Gross LJ and William Davis J: “Where a local authority acts beyond its powers, it will be acting ultra vires”); R (O’Brien) v Independent Adjudicator [2019] EWHC 2884 (Admin) [2020] 1 WLR 1393 (no power to refer charge to the police); Minister of Energy and Energy Affairs v Maharaj [2020] UKPC 13 at §47 (Minister did not have “power” to suspend licences, so decision “was ultra vires and unlawful”); R (Muir) v Wandsworth LBC [2018] EWCA Civ 1035 [2018] PTSR 2121 at §24 (decision to grant a lease did not fall within the power); R (Harvey) v Ledbury Town Council [2018] EWHC 1151 (Admin) [2018] ACD 71 at §103 (no power), §117 (absence of power meaning action ultra vires); R (Secretary of State for Transport) v HM Senior Coroner for Norfolk [2016] EWHC 2279 (Admin) [2016] ACD 118 (coroner had no power to order disclosure); R (Grant) v Kingston Crown Court [2015] EWHC 767 (Admin) [2015] 2 Cr App R (S) 11 (Crown Court judge having no power to order that foreign travel order recommence from date of dismissal of appeal); R (Lewisham LBC) v Secretary of State for Health [2013] EWCA Civ 1409 [2014] 1 WLR 514 at §22 (power did not extend to neighbouring trust); R (B) v Westminster Magistrates’ Court [2014] UKSC 59 [2015] AC 1195 at §34 (extradition court having no power to use close material procedure); R (Chief Constable of West Yorkshire) v Independent Police Complaints Commission [2014] EWCA Civ 1367 [2015] PTSR 72 at §§51, 53 (inspectors’ report “exceeded their powers” in making certain findings). 46.1.6 Improper purpose/impermissible purpose as ultra vires. R (Merida Oil Traders Ltd) v Central Criminal Court [2017] EWHC 747 (Admin) [2017] 1 WLR 3680 at §53 (Gross LJ and Leggatt J: “making an order for the production of material which is sought for the purpose of seizing it as cash … is outside the scope of [the statutory power]. It follows that there was no power to make production orders in this case”); R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 at §23 (Lord Neuberger: “Subordinate legislation will be held by a court to be invalid if it … is made for a purpose which is ultra vires, that is, outside the scope of the statutory power pursuant to which it was purportedly made”). 46.1.7 Acting incompatibly with rights created by statute. R (Al-Enein) v SSHD [2019] EWCA Civ 2024 [2020] 1 WLR 1349 at §28 (Singh LJ: “subsidiary legislation will be ultra vires if it seeks to cut down or negate rights which have been created by primary legislation. The same would also apply to a government policy. … This is simply an example of the fundamental principle that the executive cannot act in a way which is inconsistent with the will of Parliament”); R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 (whether regulations inconsistent with rights reflected in subsequent Act), 293E (Waite LJ: “Subsidiary legislation must not only be within the vires of the enabling statute but must also be drawn as not to conflict with statutory rights already enacted by other primary legislation”); {P9} (the HRA); {P59} (HRA violation). 46.1.8 Violation of common law rights/fundamentals as ultra vires: the principle of legality. {P35} (principle of legality). 46.1.9 Using statutory powers to act incompatibly with a different statute. Apple Fields Ltd v New Zealand Apple & Pear Marketing Board [1991] 1 AC 344 (levy imposed under fruit marketing statute a breach of the competition guarantee in commerce legislation); {46.1.7} (acting incompatibly with rights created by statute). 46.1.10 Breach of/failure to discharge duty as unlawfulness/ultra vires. {48.1.13} 612

P46 Ultra vires

46.1.11 Procedural ultra vires. {61.4} 46.1.12 Uncertainty as ultra vires/invalidity. R (Brook) v Preston Crown Court [2018] EWHC 2024 (Admin [2018] ACD 95 at §§38-44 (Leggatt LJ: search warrant, and search, unlawful for lack of certainty); R (Gurung) v SSHD [2013] EWCA Civ 8 [2013] 1 WLR 2546 at §20 (asking whether the policy is “so ambiguous in its scope as to be misleading as to what would be a sufficient reason to substantiate a discretionary claim to settlement”); R (Van der Pijl) v Kingston Crown Court [2012] EWHC 3745 (Admin) [2013] 1 WLR 2706 at §§52, 66 (warrant too vague to meet statutory requirement to identify articles or persons sought); McEldowney v Forde [1971] AC 632, 643F (asking whether regulation “too vague and so arbitrary” to be “a legitimate and valid exercise of the Minister’s power [conferred] on him by statute”); Broads Authority v Fry [2015] EWHC 4139 (Admin) [2017] PTSR 1 at §38 (Beatson LJ: “At common law a person who submits that secondary legislation such as the bylaws in this case is invalid because of uncertainty has to show that the provision is so uncertain as to have either no ascertainable meaning or is so unclear in its effect as to be incapable of application in any case”), applying Percy v Hall [1997] QB 924, 941c (Simon Brown LJ); R (L) v SSHD [2003] EWCA Civ 25 [2003] 1 WLR 1230 at §17 (“legal certainty is an aspect of the rule of law”); R v Director General of Telecommunications, ex p British Telecommunications Plc 20 December 1996 unreported (although licence condition involving some uncertainty, not so unclear as to be void); R v Bristol City Council, ex p Anderson (2000) 79 P & CR 358, 360 (planning condition only void for uncertainty if words can be given no sensible meaning); {55.1.6} (judicial review for uncertainty: common law standards of certainty); {1.2.15} (rule of law and certainty/transparency); {57.3.7} (unreasonableness: uncertainty). 46.1.13 Delay as ultra vires/breach of statutory duty.112 R (AM) v Newham LBC [2020] EWHC 327 (Admin) [2020] PTSR 1077 at §§62, 92 (failure to provide suitable accommodation constituting a breach of statutory duty); R (EG) v Parole Board [2020] EWHC 1457 (Admin) at §142 (delay breaching HRA:ECHR Art 5(4)); R v Chief Constable of Northumbria Police, ex p Charlton The Times 6 May 1994 (having certified the claimant as permanently disabled, no power to delay his retirement); R v Secretary of State for Social Security, ex p Sutherland [1997] COD 222 (no power to amend regulation so as to withhold benefit pending appeal in related case); R (Rycroft) v Royal Pharmaceutical Society of Great Britain [2010] EWHC 2832 (Admin) at §38 (implied obligation to make a referral within a reasonable time); Lafarge Redland Aggregates Ltd v Scottish Ministers [2000] 4 PLR 151 (serious delay in determining planning matter constituting a breach of statutory duty); Manning v Sharma [2009] UKPC 37 (judicial review for breach of statutory duty to publish information as soon as practicable); R v Gloucestershire County Council, ex p P [1994] ELR 334, 337F (whether delay constituted a breach of statutory duty and/or was unreasonable); R (R) v Children and Family Court Advisory and Support Service [2011] EWHC 1774 (Admin) [2012] 1 WLR 811 at §92 (“not possible to spell out” of the statutory duties “any particular timescale”: upheld by the CA [2012] EWCA Civ 853 [2013] 1 WLR 163 at §77); {59.5.13} (HRA:ECHR Article 6: delay/hearing within a reasonable time). 46.1.14 Facilitated-crime as ultra vires. R (Smeaton) v Secretary of State for Health [2002] EWHC 886 (Admin) [2002] 2 FLR 146 at §67 (order would be ultra vires if purporting to permit a criminal offence, because “Parliament is assumed not to have intended that statutory powers should be used to facilitate the commission of criminal offences”). 46.1.15 Incompatibility with higher legal authority: whether decision incompatible with statute. R (Jones) v Metropolitan Police Commissioner [2019] EWHC 2957 (Admin) [2020] 1 WLR 519 at §72 (no power under the Act); R (Jimenez) v First-tier Tribunal [2019] EWCA

112The

equivalent paragraph in a previous edition was relied on in R (JJ Management LLP) v HMRC [2019] EWHC 2006 (Admin) [2020] QB 619 at §77 (Nugee J).

613

GROUNDS FOR JUDICIAL REVIEW

Civ 51 [2019] 1 WLR 2956 (whether Revenue’s extra-territorial tax information notice within the statutory powers); R (Sambotin) v Brent LBC [2018] EWCA Civ 1826 [2019] PTSR 371 (statute not allowing final homelessness decision to be withdrawn); R (Rehman) v Wakefield City Council [2019] EWCA Civ 2166 [2020] PTSR 765 (decision approving taxi licence fee extending beyond the scope of the power); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 §17 (late authorisation of segregation unlawful); R (Corporation of London) v Secretary of State for Environment, Food and Rural Affairs [2006] UKHL 30 [2006] 1 WLR 1721 (whether consent beyond scope of statutory power). 46.1.16 Incompatibility with higher legal authority: whether decision incompatible with rule. R (Coleman) v Governor of Wayland Prison [2009] EWHC 1005 (Admin) (Governor having no power under Prison Rules to destroy confiscated mobile phone); R (Police Federation of England & Wales) v SSHD [2009] EWHC 488 (Admin) (Secretary of State having no power under Police Pensions Regulations to delay implementation of new actuarial tables prepared by Government Actuary); R (D) v SSHD [2006] EWHC 980 (Admin) (breach of Detention Centre Rules in failing to conduct medical examination within 24 hours); R v Oxford Regional Mental Health Review Tribunal, ex p SSHD [1988] AC 120 (discharge breaching MHRT rules); R v Immigration Appeal Tribunal, ex p Singh (Bakhtaur) [1986] 1 WLR 910 (misinterpretation of immigration rules as to relevant circumstances); R v Board of Visitors of Dartmoor Prison, ex p Smith [1987] QB 106 (decision incompatible with Prison Rules). 46.1.17 Incompatibility with higher legal authority: whether rule/policy incompatible with statute. {34.3.5} (judicial review of delegated legislation/devolved legislation); R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058 at §153 (pilot scheme in breach of Data Protection Act); R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §46 (regulations “invalid” if not “authorised by statute”); R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 (proposed regulations ultra vires the enabling Act) at §23 (Lord Neuberger: “Subordinate legislation will be held by a court to be invalid if it has an effect, or is made for a purpose, which is ultra vires, that is, outside the scope of the statutory power pursuant to which it was purportedly made”); R (Al-Enein) v SSHD [2019] EWCA Civ 2024 [2020] 1 WLR 1349 at §28 (whether policy ultra vires as incompatible with requirements of or rights conferred by statute); R (VIP Communications Ltd) v SSHD [2019] EWHC 994 (Admin) [2019] ACD 69 (whether Direction ultra vires the statutory power); R (A) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696 [2019] 1 WLR 2979 (whether Directions ultra vires the enabling Act); R (Medical Justice) v SSHD [2017] EWHC 2461 (Admin) [2017] 4 WLR 198 (guidance unlawful because inconsistent with regulations); R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68 [2014] AC 453 at §§47-48 (important that Regulations comply with the requirements expressed in the statute); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 (Orders ultra vires the enabling Act); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 349B-C (delegated legislation “must … be within the mandate given by Parliament”); R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, 292D (asking whether the Regulations “contravene the express or implied requirements of a statute”). 46.1.18 Incompatibility with higher legal authority: whether statute incompatible with EU law. {12.1.1} 46.1.19 Incompatibility with higher legal authority: whether rule/decision incompatible with EU law. R (Clientearth) v Secretary of State for Environment, Food and Rural Affairs (No 3) [2018] EWHC 315 (Admin) [2018] Env LR 525 (air quality plan non-compliant with EU Directive); R (Stody Estate Ltd) v Secretary of State for Environment, Food and Rural Affairs [2018] EWHC 378 (Admin) (decision to impose penalty incompatible with EU Regulation); R (AIRE Centre) v SSHD [2018] EWCA Civ 2837 [2019] 1 WLR 3002 (whether police questioning practice compatible with EU law); R (AC) v DPP [2018] EWCA Civ 2092 [2019] 1 WLR 917 (non-review of non-prosecution decision compatible with EU Directive); R (Gaskin) v Richmond upon Thames LBC [2018] EWHC 1996 (Admin) [2019] 614

P46 Ultra vires

PTSR 567 at §116(3) (decision incompatible with EU Directive); R (Cielecki) v SSHD [2017] EWHC 3298 (Admin) [2018] 4 WLR 9 (guidance incompatible with EU law); R (Risk Management Partners Ltd) v Brent LBC [2011] UKSC 7 [2011] 2 AC 34 (whether insurance contract award compatible with Public Contracts Directive); R (Morge) v Hampshire County Council [2011] UKSC 2 [2011] 1 WLR 268 (compatibility of planning permission with the EU Habitats Directive); R v Chief Constable of Sussex, ex p International Traders’ Ferry Ltd [1999] 2 AC 418 (restricted policing not incompatible with export rights under EU Treaty Art 29); Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (planning decision incompatible with EU environmental assessment requirements).

46.2 Interpretation to allow validity: reading down/in. Deciding whether one measure is compatible with a prior (superior) measure involves interpreting both. The Court may strive to uphold as valid the inferior measure by interpreting it in a particular way, to secure compatibility with the superior measure properly interpreted. This is an approach linked to the principle of ‘substantial severability’. Courts will also strive to interpret an impugned measure, or an empowering measure (under the principle of legality), so as to secure compatibility with common law fundamental rights and principles. 46.2.1 Construction to allow validity/compatibility. EE Ltd v Ofcom [2017] EWCA 1873 [2018] 1 WLR 1868 at §49 (Patten LJ: “delegated legislation should, if possible, be interpreted in a way that avoids a conclusion that it is ultra vires the parent statute”); DPP v Hutchinson [1990] 2 AC 783, 818H (Lord Lowry: “when construing legislation the validity of which is under challenge, the first duty of the court, in obedience to the principle that a law should, whenever possible, be interpreted ut res magis valeat quam pereat, is to see whether the impugned provision can reasonably bear a construction which renders it valid”); McEldowney v Forde [1971] AC 632 (majority in HL identifying a narrow meaning and so a valid measure; minority identifying a wide meaning and therefore an invalid measure), 657G (Lord Pearson: “it should if possible be so construed as to have sufficient certainty to be valid – ut res magis valeat quam pereat”); R (Girling) v Parole Board [2006] EWCA Civ 1779 [2007] QB 783 (Secretary of State’s directions characterised as merely suggestions so as not to compromise independence of parole board); cf Roodal v The State [2003] UKPC 78 [2005] 1 AC 328 at §26 (“the first stage is to determine whether [the statute] … can be modified … by reading down, reading in, or severance, so as to render the words of the statute in conformity with the Constitution”). 46.2.2 Adjusted meaning to avoid invalidity: constitutional fundamentals and the principle of legality. R v SSHD, ex p Simms [2000] 2 AC 115, 130C-G (although prison standing orders unambiguously allowing restriction of freedom of expression, on which basis would be ultra vires as inconsistent with fundamental rights, construed narrowly in accordance with the principle of legality); R v SSHD, ex p Anderson [1984] QB 778, 790H-791A (since Prison Rules clashing with basic constitutional right, they “must either be interpreted accordingly … or … regarded as ultra vires”); Raymond v Honey [1983] 1 AC 1, 13B (interpretation of rules narrow, so that the rules were valid, but the decision made under the rules was ultra vires); {P7} (constitutional fundamentals); R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787 at §87 (narrow interpretation, to ensure respect for constitutional principles). 46.2.3 Construction to allow ECHR-compatibility (HRA s.3): reading down/reading in. {9.3} (HRA s.3: compatible interpretation); Hand v George [2017] EWHC 533 (Ch) [2017] Ch 449 at §100 (Rose J, discussing “the court’s powers to read down legislation pursuant to section 3(1) of the HRA”), §109 (statute “read down”); R v A (No 2) [2001] UKHL 25 [2002] 1 AC 45 at §25 (referring to the argument that the statute be “read down … in accordance with section 3 of the Human Rights Act 1998 [to] be given effect in a way that was compatible with [the ECHR]”), §44 (“The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions”); R v Lambert [2001] UKHL 37 [2002] 2 AC 545 at §81 (may be necessary under s.3 to “read down” or “read in”); Sheldrake v DPP [2004] UKHL 43 [2005] 1 AC 264 (s.3 reading down of legal reverse burden as evidential only); Bellinger v Bellinger [2003] UKHL 21 [2003] 2 AC 467 at §78 615

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(Lord Hobhouse); Rushbridger v HM Attorney-General [2003] UKHL 38 [2004] 1 AC 357 at §40 (Lord Scott: “the section would now be ‘read down’ as required by section 3 of the HRA”). 46.2.4 Preserving a valid measure: substantial severability and other techniques. {43.1} (severability); {43.1.8} (partial validity: other judicial techniques); R v Institute of Chartered Accountants of England and Wales, ex p Taher Nawaz [1997] PNLR 433 (Sedley J) at 444B (Sedley J, describing substantial severability of bylaw as “reading down”: “the excessive power of delegation ostensibly conferred on committees bye-law 49(b) is to be read down so as to conform with the objects and powers set out in the Charter”) (upheld by CA at 25 April 1997 unreported). 46.2.5 Construction to allow validity: EU law. R (Hafeez) v SSHD [2020] EWHC 437 (Admin) [2020] 1 WLR 1877 at §132 (Foster J: “It is well-established that national rules will be disapplied where incompatible with rights arising under EU law”), §133 (regulations “capable of being read down” here); Fleming v HMRC [2008] UKHL 2 [2008] 1 WLR 195 at §25 (“Disapplication is called for only if there is an inconsistency between national law and EU law. In an attempt to avoid an inconsistency the national court will, if at all possible, interpret the national legislation so as to make it conform to the superior order of EU law”), referring to Pickstone v Freemans Plc [1989] AC 66 and Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546; {8.1.4} (EU law principle of ‘conforming interpretation’: Marleasing).

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P47 Jurisdictional error. A public authority must not misappreciate its functional limits. 47.1 Jurisdictional error

47.1 Jurisdictional error. The concepts of ‘jurisdiction’ and ‘jurisdictional error’ are part of public law’s heritage but, with their reputation for technicality and elusiveness, have waning current utility. The basic idea is that a question (whether of fact or law) about where lie the limits of a public authority’s authority (‘jurisdiction’) is authoritatively delineated by the Court, as a ‘hard-edged’ question. ‘Jurisdictional error’ can therefore be closely linked with ultra vires (acting without power). It was also deployed to connote a ‘public law error’ whose consequence vitiates public authority action as a ‘nullity’, which could in turn support the disapplication of a statutory ouster. That is what happened in Anisminic, a case which (as later understood) took the law from: (i) only a jurisdictional error (or an error of law on the face of the record) is correctable; through (ii) all errors of law are jurisdictional and so correctable; to (iii) all errors of law are correctable. There may now always be other better tools than ‘jurisdiction’ and ‘jurisdictional error’. 47.1.1 Jurisdiction: imprecision and technicality. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §84 (discussing the artificiality of ‘jurisdictional error’ in the context of ‘nullity’ and ouster); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §40 (Lady Hale, explaining that “jurisdiction” has “many meanings ranging from the very wide to the very narrow”, and that its invocation would mean “a return to some of the technicalities of the past”), §110 (Lord Dyson: “It is difficult to see any principled basis for holding that only jurisdictional errors of law by the UT should be judicially reviewable”), §111 (“The distinction between jurisdictional error and other error is artificial and technical”); In re McC (A Minor) [1985] AC 528, 536B-C (Lord Bridge: “few [words] … have been used with so many different shades of meaning in different contexts or have so freely acquired new meanings with the development of the law as the word jurisdiction”); R v Manchester City Magistrates’ Court, ex p Davies [1989] QB 631, 648D-E (“a notoriously difficult word to construe”); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 207A and 208E (Lord Wilberforce, favouring “non technical terms, avoiding for the moment such words as ‘jurisdiction’, ‘error’ and ‘nullity’ which create many problems”, including “strained distinctions”); R v Bedwellty Justices, ex p Williams [1997] AC 225, 232E (“a term used in a number of different senses, and possibly its popularity and convenience are partly due to its very ambiguity”); Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1220, 1233C-D (querying “what if anything remains” of “the distinction between the assumption of a jurisdiction which does not exist and an error in the exercise of a jurisdiction which does exist”); cf Fun World Co Ltd v Municipal Council of Quatre Bornes [2009] UKPC 8 at §24 (jurisdiction used in two senses: “practice” and “power”). 47.1.2 Precedent fact. {49.1} 47.1.3 Jurisdictional error: narrow meaning. R (Strickson) v Preston County Court [2007] EWCA Civ 1132 at §26 (Laws LJ, describing the “narrower pre-Anisminic sense of jurisdiction” as referring to the decision-maker’s “right to embark upon the question in hand at all: what might be called the condition precedent for its having any jurisdiction in the matter”), §32 (“where the court embarks upon an enquiry which it lacks all power to deal with, or fails altogether to enquire or adjudicate upon a matter which it was its unequivocal duty to address”); Chen v Government of Romania [2007] EWHC 520 (Admin) [2008] 1 All ER 851 at §§62-63 (acting beyond the question which had been remitted); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171B-C (referring to “the narrow and original sense of the tribunal being entitled to enter on the inquiry in question”);

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R v Hull University Visitor, ex p Page [1993] AC 682, 704F (referring to a decision “within” or “outside” the Visitor’s jurisdiction “in the narrow sense”); In re McC (A Minor) [1985] AC 528 (magistrates’ statutory liability in damages restricted to jurisdictional error in narrow sense), 546G-H (Lord Bridge); Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1220, 1233C (no judicial review for “a mistake within their jurisdiction”); cf Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43 [2006] 1 AC 221 (error of law by arbitrator not “an excess of power” triggering statutory entitlement to have award quashed by court). 47.1.4 Jurisdictional error: judicial review of decision refusing permission to appeal. {32.3.20} 47.1.5 Court deciding ‘existence’ and ‘extent’ of power: whether limits exceeded. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §35 (Lady Hale and Lord Reed: “In the case of prerogative powers, it is necessary to distinguish between two different issues. The first is whether a prerogative power exists, and if it does exist, its extent. The second is whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis. The first of these issues undoubtedly lies within the jurisdiction of the courts and is justiciable. … The second of these issues, on the other hand, may raise questions of justiciability. The question then is not whether the power exists, or whether a purported exercise of the power was beyond its legal limits, but whether its exercise within its legal limits is challengeable in the courts on the basis of one or more of the recognised grounds of judicial review”), §36 (“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”), §52 (“the courts can rule on the extent of prerogative powers”); {34.4.8} (reviewability of prerogative power: existence/limits of power); R v Jones [2006] UKHL 16 [2007] 1 AC 136 at §66 (Lord Hoffmann, discussing judicial review and the decision to go to war: “It is of course open to the court to say that the act in question falls wholly outside the ambit of the discretionary power”). 47.1.6 Jurisdictional error: public authority cannot decide its own limits. R v Shoreditch Assessment Committee, ex p Morgan [1910] 2 KB 859, 880 (Farwell LJ: “No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction: such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which it has and ought to exercise”), cited in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 197E, 209A. 47.1.7 Jurisdictional error: public authority must correctly identify its boundaries. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 174B-D (Lord Reid: “It cannot be for the commission to determine the limits of its powers. Of course if one party submits to a tribunal that its powers are wider than in fact they are, then the tribunal must deal with that submission. But if they reach a wrong conclusion as to the width of their powers, the court must be able to correct that – not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal”); R v Fulham, Hammersmith & Kensington Rent Tribunal, ex p Zerek [1951] 2 KB 1, 10; R v Croydon & South West London Rent Tribunal, ex p Ryzewska [1977] QB 876, 879F-G, 881B-C; R v Kensington & Chelsea (Royal) London Borough Rent Officer, ex p Noel [1978] QB 1, 6C-D, 9A-B; R v City of Liverpool Justices, ex p Knibb and Others [1991] COD 53; R (Mazarona Properties Ltd) v Financial Ombudsman Service [2017] EWHC 1135 (Admin) [2017] ACD 94 (ombudsman legally correct in characterising claim as falling outside her remit).

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47.1.8 Jurisdiction and two-tiered review. {14.1.9} (the critical balance: two-tiered review); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 210D-E (recognising the need to “distinguish between doing something which is not in the tribunal’s area and doing something wrong within that area – a crucial distinction which the court has to make”); R v Governor of Brixton Prison, ex p Schtraks [1964] AC 556, 585-586; Holgate-Mohammed v Duke [1984] AC 437; White & Collins v Minister of Health [1939] 2 KB 838. 47.1.9 Ultra vires: acting without power. {46.1.5} 47.1.10 Jurisdiction: acting without power/wrongly exercising power. R (Bahbahani) v Ealing Magistrates’Court [2019] EWHC 1385 (Admin) [2020] QB 478 at §73 (impersonation of criminal defendant at ‘mode of trial’ stage meaning magistrates “had no jurisdiction to embark upon a summary trial”); Stenhouse v Legal Ombudsman [2016] EWHC 612 (Admin) [2016] 2 Costs LR 281 at §69 (ombudsman having no jurisdiction to make findings beyond the scope of the complaints made); R (Bunce) v Pensions Appeal Tribunal [2009] EWCA Civ 451 at §34 (on an appeal as to assessment of disablement, Tribunal going “beyond the jurisdiction granted” by the statute, by considering cause of disablement), §53 (“It thus exceeded the limited jurisdiction it had”); R (Srinivasans Solicitors) v Croydon County Court [2011] EWHC 3615 (Admin) (county court order quashed on judicial review for lack of jurisdiction); R (Britannic Asset Management Ltd) v Pensions Ombudsman [2002] EWCA Civ 1405 [2002] 4 All ER 860 (Pensions Ombudsman wrong to treat claimant as administrators of pensions scheme and so to hear a complaint against them); R v Secretary of State for Health, ex p Barratt [1994] COD 406 (erroneous decision that jurisdiction to entertain appeal by father purporting to act on behalf of non-consenting daughter who had reached 18); R v Broadcasting Complaints Commission, ex p British Broadcasting Corporation (1994) 6 Admin LR 714, 724C (erroneous conclusion that jurisdiction to entertain researcher’s complaint). 47.1.11 Jurisdiction: wrongly declining to recognise a power. R (Banghard) v Bedford Borough Council [2017] EWHC 2391 (Admin) [2018] PTSR 1050 (local authority wrongly declining to determine planning application); R (Parish) v Pensions Ombudsman [2009] EWHC 969 (Admin) (Ombudsman erroneously asserting that prevented from investigating complaint); R (B) v Norfolk Youth Court [2013] EWHC 1459 (Admin) [2013] ACD 109 (youth court wrongly declining jurisdiction); R (Gashi) v Chief Immigration Adjudicator The Times 12 November 2001 (erroneous refusal to entertain a review of a special adjudicator’s asylum decision, following provision of a non-competent interpreter); R v Dorking Justices, ex p Harrington [1984] AC 743, 753B-754A (“the duty of adjudging was declined”; “they were declining to adjudicate upon a matter upon which it was their duty to adjudicate and thus was a nullity”); In re Wilson [1985] AC 750 (refusing to hear application for variation); R v Comptroller-General of Patents Designs & Trade Marks, ex p Gist-Brocades [1986] 1 WLR 51 (refusing to entertain prospective application); {24.4.10} (mandatory order: defendant wrongly declining jurisdiction). 47.1.12 Jurisdiction: conditions precedent to existence of power. Chesterfield Poultry Ltd v Sheffield Magistrates’ Court [2019] EWHC 2953 (Admin) [2020] 1 WLR 499 at §1 (issue “whether criminal proceedings … were commenced out of time so that the [magistrates’] court has no jurisdiction”); R (Rahmdezfouli) v Wood Green Crown Court [2013] EWHC 2998 (Admin) [2014] 1 WLR 1793 (magistrates’ failure to follow the statutory procedure meaning they acted without jurisdiction); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 195B-C (“Lack of jurisdiction may arise [from] … an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry”); R v Manchester Stipendiary Magistrate, ex p Hill [1983] 1 AC 328, 344C and 345E (“the laying of an information … is the foundation of the magistrates’ court’s jurisdiction to try an information summarily”; described as a “condition precedent”); In re McC (A Minor) [1985] AC 528, 546D-E and 552D (“statutory condition precedent”); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 80G-81A (“a condition precedent to jurisdiction was omitted”); R v Manchester City Magistrates’ Court, ex p Davies [1989] QB 631 (means inquiry a condition precedent to committal of ratepayer to prison); 619

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R v Southampton Crown Court, ex p Roddie [1991] 1 WLR 303 (whether prosecution had acted with “all due expedition” a condition precedent to be answered objectively). 47.1.13 Jurisdiction: lacking the requisite status/authority. Kanda v Government of Malaya [1962] AC 322 (Commissioner lacking requisite status); R v Central Criminal Court, ex p Francis & Francis [1989] AC 346, 368D-F and 382B (recorder lacking status to make order); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 170B-C (describing the situation where statute “provides that a certain order may be made by a person who holds a specified qualification or appointment”); R (Queen Mary University of London) v Higher Education Funding Council for England [2008] EWHC 1472 (Admin) at §39 (decision taken by person not authorised to do so). 47.1.14 Jurisdiction: consequence of improper delegation. R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §90 (decision unlawful because power unlawfully delegated); Vine v National Dock Labour Board [1957] AC 488, 510 (“action taken by a delegated authority when there was no power to delegate [goes] to the root of the jurisdiction”); Barnard v National Dock Labour Board [1953] 2 QB 18, 38 (“The local board had no jurisdiction to delegate; the port manager had no jurisdiction to adjudicate; each purported so to do”). 47.1.15 Jurisdiction: public authority becoming functus officio. R (Sambotin) v Brent LBC [2018] EWCA Civ 1826 [2019] PTSR 371 at §3 (Jackson LJ: “Once a public authority exercising a statutory power has decided how the power is to be exercised, it will lack further authority and be functus officio. Any later attempt to remake the decision will be outside the authority’s powers (ultra vires) … [except] where there has been fraud … or fundamental mistake of fact”); R (TN (Vietnam)) v First-tier Tribunal (Immigration and Asylum Chamber) [2018] EWHC 3546 (Admin) [2019] 1 WLR 2675 at §52 (proceedings “finally disposed of ” meaning no power to reopen decision on grounds of unfairness, under the then applicable rules); R (Commissioner of Police of the Metropolis) v Independent Police Complaints Commission [2015] EWCA Civ 1248 [2016] PTSR 891 at §42 (“functus officio” meaning “a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it”); R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 WLR 621, 629F (Parliamentary Ombudsman “clearly correct” that, having reported to the MP in question, “he was functus officio and unable to reopen the investigation without a further referral”); R v Dorset Police Authority, ex p Vaughan [1995] COD 153 (no power to reconsider decision which Regulations stated was “final”); R v Parole Board, ex p Robinson 29 July 1999 unreported (Discretionary Lifer Panel functus having decided to direct release of prisoner); Aparau v Iceland Frozen Foods Plc [2000] 1 All ER 228, 235j-236a (industrial tribunal, like any other, exhausted its jurisdiction having delivered a final dispositive decision, subject only to the limited power of review under the statutory framework). 47.1.16 Jurisdictional error: wide sense. In re McC (A Minor) [1985] AC 528, 542F-G (referring to Anisminic and “the extended concept of acting without jurisdiction or in excess of jurisdiction which that landmark decision … introduced”); R v Governor of Pentonville Prison, ex p Sotiriadis [1975] AC 1, 30D-F (“in extradition cases, the courts have assimilated such an error of law to acting in excess of jurisdiction”). 47.1.17 Nullity. {P44} 47.1.18 Ouster. {P28} (ouster); {28.1.17} (statutory ousters never applied to a ‘nullity’). 47.1.19 Jurisdictional error: avoiding the limitations on Crown Court reviewability. {32.2.6} (response to the limitations of Crown Court reviewability: nullity/jurisdictional error). 47.1.20 Absence of evidence as ‘jurisdictional error’. R v Governor of Brixton Prison, ex p Armah [1968] AC 192, 237G-238A (concept of jurisdiction capable of extending 620

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“to include inquiry as to whether there was any evidence to warrant a decision. This may have involved giving a somewhat extended or liberal interpretation to the concept of jurisdiction”). 47.1.21 Disregarding a relevancy as ‘jurisdictional error’. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 198F-G (“an inferior tribunal which properly embarks on an inquiry may go outside its jurisdiction if, in the course of that inquiry, it rejects a consideration which it was told to have in mind”); {P56} (relevancy/irrelevancy). 47.1.22 Procedural unfairness as ‘jurisdictional error’. Attorney-General v Ryan [1980] AC 718, 730E (Lord Diplock: “It has long been settled law that a decision affecting the legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision-making authority”); {44.2.4} (nullity and procedural unfairness); R v Diggines, ex p Rahmani [1985] QB 1109 (CA) (decision made contrary to rules of natural justice outside tribunal’s jurisdiction); In re McC (A Minor) [1985] AC 528, 546H-547B (magistrates “would, of course, be acting ‘without jurisdiction or in excess of jurisdiction’ … if, in the course of hearing a case within their jurisdiction they were guilty of some gross and obvious irregularity of procedure”); cf Ridge v Baldwin [1964] AC 40, 136 (distinguishing between “a want of jurisdiction as opposed to a failure to follow a procedural requirement”). 47.1.23 Error of law. {48.1} (error of law/misdirection in law/illegality); {16.3} (error of law as hard-edged review). 47.1.24 Error of law: pre-Anisminic. R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 KB 338, 346 (Denning LJ: “the Court of King’s Bench can intervene to prevent a statutory tribunal from exceeding the jurisdiction which Parliament has conferred on it; but it is quite another thing to say that the King’s Bench can intervene when a tribunal makes a mistake of law. A tribunal may often decide a point of law wrongly whilst keeping well within its jurisdiction”); R v Governor of Brixton Prison, ex p Armah [1968] AC 192, 234 (“If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction”); {48.2.2} (error of law ‘on the face of the record’: the pre-Anisminic concept); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 199D-E (discussing “the difficult question of how far, if at all, the court could take cognisance of an error that was not manifest on the record. That problem did not arise in cases of excess or lack of jurisdiction since there the court for obvious reasons did not confine itself to the record. It looked into all relevant circumstances to see whether jurisdiction did or did not exist”). 47.1.25 Error of law: Anisminic. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 174A-D (Lord Reid: “the commission made an inquiry which the Order did not empower them to make, and they based their decision on a matter which they had no right to take into account. If one uses the word ‘jurisdiction’ in its wider sense, they went beyond their jurisdiction in considering this matter. … It cannot be for the commission to determine the limits of its powers”; “if they reach a wrong conclusion as to the width of their powers, the court must be able to correct that – not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal”); {44.2.3} (nullity and error of law). 47.1.26 Error of law: Anisminic explained. R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §18 (Lady Hale: “In holding that [the statutory provision] was not effective to oust the jurisdiction of the High Court to set aside a decision which was a nullity, the House of Lords [in Anisminic] effectively removed the distinction between error of law and excess of jurisdiction”); O’Reilly v Mackman [1983] 2 AC 237, 283E-F (Lord Diplock: “the full consequences of the Anisminic case, in introducing the concept that if a statutory decision-making authority asks itself the wrong question it acts without jurisdiction, have 621

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been virtually to abolish the distinction between errors within jurisdiction that rendered voidable a decision that remained valid until quashed, and errors that went to jurisdiction and rendered a decision void ab initio provided that its validity was challenged timeously in the High Court by an appropriate procedure”); In re A Company [1981] AC 374, 382G-H (Lord Diplock, describing Anisminic as “a legal landmark; it has made possible the rapid development in England of a rational and comprehensive system of administrative law on the foundation of the concept of ultra vires”), 383C (“The breakthrough made by Anisminic … was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished”); {P48} (error of law).

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P48 Error of law. A public authority must not make a material error of law. 48.1 Error of law/misdirection in law/illegality 48.2 Error of law: restricted categories?

48.1 Error of law/misdirection in law/illegality. The supervisory jurisdiction of the judicial review Court extends to correcting material errors of law and material misdirections in law. These are aspects of a broader concept of ‘legality’, which embraces ultra vires and breach of a duty. Questions of ‘law’ (and legality) are unlike questions of ‘judgment’, ‘appreciation’, ‘discretion’ and ‘policy’, since those questions are primarily for the public body to evaluate for itself, with a built-in latitude, so that review is ‘soft’. Questions of ‘law’ are frequently ‘substantive’, affecting the public authority’s impugned ‘substantive’ act rather than affecting the decision-making procedure. Questions of ‘law’ are subject to hard-edged redetermination afresh by the reviewing Court, applying an objective correctness standard. This reflects the Court’s responsibility as well as its expertise. It promotes the law and the rule of law. One important issue is whether a question is properly to be characterised as a question of ‘law’, which is itself a hard-edged question decided objectively by the reviewing Court. 48.1.1 Judicial review for error of law/misdirection in law. R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 [2014] AC 610 (judicial review granted because Registrar General applying a erroneous interpretation of the statute); R (Mansfield District Council) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 1794 (Admin) [2019] PTSR 540 at §43 (“error of law”); R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7 [2015] AC 1547 at §1 (issue being whether defendant authority was “wrong in law”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410F (Lord Diplock: “the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable”); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309, 350D (“an administrative or executive authority entrusted with the exercise of a discretion must direct itself properly in law”). 48.1.2 Judicial review for ‘unlawfulness’. {45.1} (the conventional threefold division). 48.1.3 Judicial review for error of law promotes the law of the land. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §139 (Lord Carnwath, describing “the need to ensure that the law applied by [a] specialist tribunal is not developed in isolation (‘a local law’), but conforms to the general law of the land”; in the context of a “legal issue … of general public importance [with] possible implications for legal rights and remedies going beyond the scope of the [tribunal]’s remit”: “Consistent application of the rule of law requires such an issue to be susceptible in appropriate cases to review by the ordinary courts”). 48.1.4 Questions of law as hard-edged questions. {16.3} (error of law as hard-edged review). 48.1.5 The fact/law distinction. {13.2.3} 48.1.6 Interpretation as a question of law/hard-edged question. {16.4} (interpretation as hard-edged review). 48.1.7 Fact/law: a flexible policy-informed approach. R (Jones) v First-tier Tribunal [2013] UKSC 19 [2013] 2 AC 48 at §16 (Lord Hope: “A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first

GROUNDS FOR JUDICIAL REVIEW

tier and that of the Upper Tribunal can be used to best effect”), §§43-46 (Lord Carnwath, discussing the distinction between “law” and “fact” in the context of tribunal appeals, to enable the UT “to interpret points of law flexibly to include other points of principle or even factual judgment of general relevance to the specialised area in question”); Hutton v Criminal Injuries Compensation Authority [2016] EWCA Civ 1305 [2017] ACD 20 at §57(iii) (Gross LJ: “When determining whether a question was one of ‘fact’ or ‘law’, this Court should have regard to context … (‘pragmatism’, ‘expediency’ or ‘policy’, per Jones), so as to ensure both that decisions of tribunals of fact are given proper weight and to provide scope for specialist appellate tribunals to shape the development of law and practice in their field”); Cozens v Brutus [1973] AC 854, 861 (“The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law”); Moyna v Secretary of State for Work and Pensions [2003] UKHL 44 [2003] 1 WLR 1929 at §24 (Lord Hoffmann, explaining Cozens v Brutus: “The meaning of an English word is not a question of law because it does not in itself have any legal significance. It is the meaning to be ascribed to the intention of the notional legislator in using that word which is a statement of law. It is because of the nature of language that, in trying to ascertain the legislator’s meaning, it is seldom helpful to make additions or substitutions in the actual language he has used”), §25 (“the question of whether the facts as found or admitted fall one side or the other of some conceptual line drawn by the law is a question of fact”), §27 (“it may be said that there are two kinds of questions of fact: there are questions of fact; and there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment”; “the degree to which an appellate court will be willing to substitute its own judgment … will vary with the nature of the question”); R (Cherwell District Council) v First Secretary of State [2004] EWCA Civ 1420 [2005] 1 WLR 1128 at §57 (applying Moyna); Pabari v Secretary of State for Work and Pensions [2004] EWCA Civ 1480 [2005] 1 All ER 287 at §32 (applying Moyna); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309, 341A-C (“the meaning to be attributed to enacted words is a question of law”). 48.1.8 HRA-breach as error of law. R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §112 (Lord Phillips MR: “[C]ourts 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 [ECHR]”). 48.1.9 Misdirection/error of law: illustrations. R (GS) v HM Senior Coroner for Wiltshire & Swindon [2020] EWHC 2007 (Admin) at §84 (material errors of law by coroner in deciding scope of inquest); Hampshire County Council v Secretary of State for Environment, Food and Rural Affairs [2020] EWHC 959 (Admin) [2020] 2 P & CR 16 at §138 (error of law in approach to “curtilage”); R (British Pregnancy Advisory Service) v Secretary of State for Health and Social Care [2020] EWCA Civ 355 [2020] 1 WLR 3240 (whether error of law in circular letter to clinicians); Arowojolu v General Medical Council [2019] EWHC 3155 (Admin) at §71 (whether legal advice received by tribunal erroneous), §91 (“the Tribunal was materially misdirected”); R (Haworth) v HMRC [2019] EWCA Civ 747 [2019] 1 WLR 4708 at §44 (judicial review granted for misdirection in law); R (Wells) v Parole Board [2019] EWHC 2710 (Admin) [2019] ACD 146 at §24 (“the Panel misdirected itself in law as to the hurdle which they considered the claimant had to overcome”); R (Giordano Ltd) v Camden LBC [2019] EWCA Civ 1544 [2020] PTSR 490 at §40 (“the council’s decision … under regulation 40(7)(ii) was based on a misunderstanding of that provision, and cannot stand”); SP (Albania) v SSHD [2019] EWCA Civ 951 [2019] Imm AR 1288 at §18 (misdirection as to meaning of “trafficked” under Council of Europe Convention); R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin) [2019] ACD 148 at §55 (error of law by Crown Court in finding reasonable grounds for production order); UBB Waste Essex Ltd v Essex County Council [2019] EWHC 1924 (Admin) (judicial review of certificate of lawfulness for proposed use, granted on grounds that the authority misinterpreted the terms of the relevant planning permission); R (Chidlow) v HM Senior Coroner for Blackpool and Fylde [2019] EWHC 581 (Admin) at §65 (coroner “erred in law” in not leaving a possible verdict to the jury); 624

P48 Error of law

R (Chief Constable of Avon and Somerset) v Police Medical Appeal Board [2019] EWHC 557 (Admin) at §24 (misdirection as to the correct legal approach); R (Berkshire Assets (West London) Ltd) v Hounslow LBC [2018] EWHC 2896 (Admin) (misdirection in interpreting directions); DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301 at §70 (judicial review succeeding because “the police laboured under a misapprehension as to the extent of their powers”); R (Network Rail Infrastructure Ltd) v Secretary of State for Environment, Food and Rural Affairs [2018] EWCA Civ 2069 [2019] PTSR 292 (judicial review for inspector’s misinterpretation of planning condition); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §50 (no failure by the Secretary of State to apply the correct standard of proof in relation to UN designation); {39.2.2} (duty to understand the nature/limits of the power); {48.1.16} (materiality: need for material error of law/material misdirection); {6.2.8} (duty to understand/misdirection as to policy guidance); {65.1.12} (error/misdirection by consultee); {42.1.5} (expert tribunals/decision-makers/courts: caution before finding misdirection). 48.1.10 Error of law/unlawfulness: error of approach/failure to apply the required approach. R (Elgizouli) v SSHD [2020] UKSC 10 [2020] 2 WLR 857 at §219 (Data Protection Act 2018 s.73 requiring “specific consideration by the relevant controller of the statutory tests, including the strict test of necessity. The clear purpose of the provisions is to set out a structured framework for decision-making, with appropriate documentation”), §225 (“the Act requires a specific assessment … and … this did not take place”), §6 (Act “required a conscious, contemporaneous consideration of whether the criteria for … processing were met”); R (Debono) v Parole Board [2020] EWHC 655 (Admin) [2020] 4 WLR 60 at §§35-36 (failure to conduct the balancing exercise required by applicable directions); R (Chief Executive of the Independent Police Complaints Commission) v Independent Police Complaints Commission [2016] EWHC 2993 (Admin) [2017] ACD 7 (application of the wrong test). 48.1.11 Error of law/unlawfulness in policy guidance. R (W) v SSHD [2020] EWHC 1299 (Admin) at §58 (Bean LJ and Chamberlain J: “the court can and should intervene where guidance is misleading as to the law”), §73 (“In its current form the … regime is apt to mislead caseworkers in [a] critical respect”); R (MM (Lebanon)) v SSHD [2017] UKSC 10 [2017] 1 WLR 771 at §92 (Home Office guidance “defective” as to effect of child’s best interests duty); R (Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin) [2016] PTSR 405 at §81 (“false and misleading statement of law”), §8 (Warby J: “(1) If a government department, in a field of administration in which it exercises responsibility, promulgates in a public document, albeit non-statutory in form, advice which is erroneous in law, then the court, in proceedings in appropriate form commenced by an applicant or plaintiff who possesses the necessary locus standi has jurisdiction to correct the error of law by an appropriate declaration. (2) It is well established that a policy which, if followed, would lead to unlawful acts or decisions, or which permits or encourages such acts, will itself be unlawful. (3) A policy, or guidance, may encourage unlawful acts by dint of being ‘not clear and unambiguous’ and silent as to important circumstances, or ‘materially unclear or misleading’”), citing R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin) [2015] 1 WLR 4497 at §§114-119. 48.1.12 Unlawfulness: application of an undisclosed policy. R (Lupepe) v SSHD [2017] EWHC 2690 (Admin) [2017] ACD 138 at §64 (Lewis J: “material parts of the policy guidance applied by the defendant’s official in reviewing the curfew imposed in the claimant’s case were not published. … At least those parts of the instructions containing the policy guidance dealing with the criteria for the application, and duration, of curfews should, as a matter of public law, have been published. Further, in my judgment, the application of an unpublished policy setting out criteria relevant to the exercise of executive power in the claimant’s case rendered the decision unlawful”); R (McMorn) v Natural England [2015] EWHC 3297 (Admin) [2016] PTSR 750 at §159 (“unlawful” to reach a decision “on the basis of [an] undisclosed policy”). 48.1.13 Breach of/failure to discharge duty as unlawfulness/ultra vires. R (CP) v North East Lincolnshire Council [2019] EWCA Civ 1614 [2020] PTSR 664 at §75 625

GROUNDS FOR JUDICIAL REVIEW

(breach of Care Act duty), §82 (Haddon-Cave LJ: “A breach of statutory duty … is, by definition, unlawful conduct”); R (SH) v Waltham Forest LBC [2019] EWHC 2618 (Admin) [2019] ACD 145 at §28 (unlawful failure to secure suitable accommodation, in breach of statutory duty); R (T) v Secretary of State for Justice [2013] EWHC 1119 (Admin) [2013] ACD 88 at §47 (arrangements for detention of young person breaching statutory duty to protect from association with adult detainees); R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, 292D (asking whether the Regulations “contravene the express or implied requirements of a statute”). 48.1.14 Unlawful use of prerogative powers. {6.1.7} (prerogative powers); R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 (legally impermissible to use prerogative powers to notify withdrawal from EU, the effect of the European Communities Act 1972 being to require the authority of primary legislation); {60.1.3} (judicial review of prerogative power based on effect on constitutional principle/ value); {50.4.8} (no-fettering principle inapplicable to prerogative powers). 48.1.15 Breach of common law/contract as legal error. R (K) v SSHD [2018] EWHC 2951 (Admin) [2019] 4 WLR 92 at §22 (judicial review granted for unlawful purported unilateral variation of contract to fund Salvation Army support to human trafficking victims, “taken on a false basis”; “In public law terms the decision can be characterised as … being outside the tightly confined variation power within the contract”); R (Ingenious Media Holdings plc) v HMRC [2016] UKSC 54 [2016] 1 WLR 4164 (judicial review granted for breach of common law duty of confidentiality, not authorised by the statute). 48.1.16 Materiality: need for material error of law/material misdirection.113 {4.1} (highly likely: not substantially different (HL:NSD)); Rhuppiah v SSHD [2018] UKSC 58 [2018] 1 WLR 5536 at §58 (“material” error of law where correct interpretation “might properly have led” to different outcome); Dennis Hutchings [2019] UKSC 26 at §44 (Lord Kerr: any misinterpretation of the statute not vitiating the decision; here, decision-maker was “bound to have made the same decision”); R (Britwell Parish Council) v Slough Borough Council [2019] EWHC 988 (Admin) [2019] ACD 70 at §48 (“decision … materially influenced by … legal error”); Sadovska v SSHD [2017] UKSC 54 [2017] 1 WLR 2926 (immigration appeal for error of law) at §§31, 33 (“impossible for this court to conclude that, had the matter been approached in the right way, the decision … would inevitably have been the same”); Singh v SSHD [2017] EWCA Civ 362 [2017] 1 WLR 4340 at §35 (“The mere presence within [a] decision of an immaterial error of law does not make the decision itself one which is … unlawful”); R (Roche Registration Ltd) v Secretary of State for Health [2015] EWCA Civ 1311 [2016] 4 WLR 46 at §§82-85 (statements in a report as to “pure legal points” having “no practical consequences” for the claimant, meaning claimant raising “hypothetical questions of law, which do not require resolution”); R v Hull University Visitor, ex p Page [1993] AC 682, 702C-D (“what must be shown is a relevant error of law, ie., an error in the actual making of the decision which affected the decision itself”), applied in R v Governor of Brixton Prison, ex p Levin [1997] AC 741, 749A; Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 [2012] PTSR 983 at §31 (Lord Reed: “an error by the [defendants] in interpreting their policies would be material only if there was a real possibility that their determination might otherwise have been different”); R (O’Connor) v Avon Coroner [2009] EWHC 854 (Admin) [2011] QB 106 at §13 (“a material misdirection of law”), §14 (where “the error has or may have resulted in the wrong verdict being entered”); R (British Board of Film Classification) v Video Appeals Committee [2008] EWHC 203 (Admin) [2008] 1 WLR 1658 at §27 (court not able to be “confident” that committee had not “allowed itself to be influenced by its erroneous self-directions”); R (Gillan) v Winchester Crown Court [2007] EWHC 380 (Admin) [2007]

113The

equivalent paragraph in a previous edition was relied on in R (Warren) v MHRT [2002] EWHC 811 (Admin) [2002] MHLR 146 at §17 (Jack Beatson QC); R (B) v SSHD [2002] EWHC 854 (Admin) at §23 (Jack Beatson QC); Victoria Pre-Cast [2003] VSC 208 (Supreme Court of Victoria) at §8 (Teague J); Fiji Island TIB [2005] FJHC 175; R (Baird) v Tribunals Service [2010] EWHC 1257 (Admin) at §78 (Cranston J).

626

P48 Error of law

1 WLR 2214 at §31 (error of law but decision correct); Kalra v Secretary of State for the Environment [1996] 1 PLR 37, 45A (whether it can “be safely said that the inspector would inevitably have reached the same decision if she had correctly directed herself in law”). 48.1.17 External misdirection: planning officers’ report ‘significantly misleading the committee’. {65.1.10} (whether planning officers’ report to committee deficient/significantly misleading). 48.1.18 External misdirection: other. {65.1.13}

48.2 Error of law: restricted categories?114 As a result of the landmark Anisminic case (as subsequently understood), judicial review is in principle available to correct a material error of law made by a public authority. Some case law supported the idea of residual categories of case where only the narrower (pre-Anisminic) errors of law would suffice. That would mean preserving the concepts of errors of law going to ‘jurisdiction’ (‘jurisdictional error’ of law) or ‘error of law on the face of the record’. The idea has long been discarded that those ‘courts of law’ which are amenable to judicial review are only reviewable for ‘jurisdictional’ error of law. As for special bodies applying special systems of ‘law’, the restraint which may be appropriate lies in the question of what ‘law’ the judicial review Court supervises. So, if it is the case that a public authority acting in a special context has decided a question of ‘religious law’ or ‘visitorial law’, the Court’s restraint will come from the recognition that this is not the ‘law’ which a judicial review Court supervises on a correctness standard. An error of ‘law’, recognised as relevant ‘law’ by the reviewing Court, in principle falls well within judicial review’s proper remit. 48.2.1 Narrow sense of jurisdictional error. {47.1.3} (jurisdictional error: narrow meaning). 48.2.2 Error of law ‘on the face of the record’: the pre-Anisminic concept. O’Reilly v Mackman [1983] 2 AC 237, 277C and E (Lord Diplock, describing the breakthrough in R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 KB 338: “What was there re-discovered was” judicial review “not only on the ground that it had acted outwith its jurisdiction but also on the ground that it was apparent upon the face of its written determination that it had made a mistake as to the applicable law”); R v Patents Appeal Tribunal, ex p Beecham Group Ltd [1974] AC 646 (error of law on the face of the record by the Patents Appeal Tribunal); R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574 (judicial review for error of law on the face of the record by the Medical Appeal Tribunal, not ousted by statutory ‘finality’ clause); R v Governor of Brixton Prison, ex p Armah [1968] AC 192, 253F-G (power “to correct any error of law provided that it is able to see that the error has occurred”, but “difficult questions may arise as to whether an error appears on the face of the record and as to what are the documents which compose the record”); R v Knightsbridge Crown Court, ex p International Sporting Club (London) Ltd [1982] 1 QB 304 (broad approach to what constituting “the record”, including oral judgment); {33.2.1} (judicial review for error of law on the face of the record (Shaw)). 48.2.3 Anisminic (as understood): all errors of law are correctable. {47.1.24} (error of law pre-Anisminic); {47.1.25} (error of law: Anisminic); {47.1.26} (error of law: Anisminic explained). 48.2.4 Error of law ‘on the face of the record’: rendered obsolete by Anisminic. R v Hull University Visitor, ex p Page [1993] AC 682, 701F-G (“the decision in Anisminic … rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires”); Boddington v British Transport Police [1999] 2 AC 143, 154C (Anisminic described as having “made obsolete the historic distinction

114The

equivalent paragraph in a previous edition was relied on in Re Belfast City Council [2008] NIQB 13 at §23 (Kerr LCJ); Bhatia Best Ltd v Lord Chancellor [2014] EWHC 746 (QB) [2014] 1 WLR 3487 at §54 (Silber J).

627

GROUNDS FOR JUDICIAL REVIEW

between errors of law on the face of the record and other errors of law. It did so by extending the doctrine of ultra vires, so that any misdirection in law would render the relevant decision ultra vires and a nullity”); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §17 (“the remedy of certiorari had long been available to quash the decision of an inferior court or tribunal for error of law on the face of the record”); {47.1.24} (error of law: pre-Anisminic). 48.2.5 Modified review. {P32} 48.2.6 Cardinal principle: Courts secure the scope of judicial review required by the rule of law. {1.3.5} 48.2.7 Anisminic: error of law and ‘courts of law’. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§57, 66, 157-158 (error of law in principle a ground for judicial review applicable to a court of law, but not the High Court); Lee v Ashers Baking Co Ltd [2018] UKSC 49 [2020] AC 413 at §§85-88 (approach in Anisminic to the interpretation of an ouster clause not applicable to a superior court); R v Greater Manchester Coroner, ex p Tal [1985] QB 67, 82G-H (“as a matter of principle, the Anisminic principle applies to inferior courts as well as inferior tribunals”); R v Hull University Visitor, ex p Page [1993] AC 682, 693B-D (Anisminic applying to inferior courts); R v Bedwellty Justices, ex p Williams [1997] AC 225, 233C-D (judicial review of magistrates available for error of law); R (Woolas) v Parliamentary Election Court [2010] EWHC 3169 (Admin) [2012] QB 1 (judicial review of Election Court for error of law); R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 [2013] QB 618 (judicial review granted for error of law) at §30 (extradition judge “a court of law”). 48.2.8 Judicial review of decisions refusing permission to appeal. {32.3.19} (Cart claims: judicial review of UT’s refusal of permission to appeal); {32.3.20} judicial review of other refusals of permission to appeal). 48.2.9 Visitors/religious bodies etc: error of ‘law’ insufficient. {32.1.5} (modified review: Visitors/bodies applying special law); R v Hull University Visitor, ex p Page [1993] AC 682, 704F (Lord Browne-Wilkinson: “judicial review does not lie to impeach the decisions of a visitor taken within his jurisdiction (in the narrow sense) on questions of either fact or law. Judicial review does lie to the visitor in cases where he has acted outside his jurisdiction (in the narrow sense) or abused his powers or acted in breach of the rules of natural justice”); R v Visitors to the Inns of Court, ex p Calder & Persaud [1994] QB 1, 40F (applying the “limited judicial review jurisdiction” in Page); R v Edmundsbury and Ipswich Diocese (Chancellor), ex p White [1948] 1 KB 195, 220-221; R v Chief Rabbi, ex p Wachmann [1992] 1 WLR 1036, 1042H; R v Charity Commissioners for England and Wales, ex p Baldwin (2001) 33 HLR 538 (Charity Commissioners reviewable for error of law only in narrow “jurisdictional” sense, applying Page).

628

P49 Error of fact.115 A public authority must not make an error of precedent fact, an error of objective fact, a material error of verifiable fact, or an unsustainable conclusion of fact. 49.1 Precedent fact 49.2 Objective question of fact 49.3 Material error of fact 49.4 Unsustainable conclusion of fact

49.1 Precedent fact. The Court will intervene to correct an erroneous conclusion on a question of ‘precedent’ (‘antecedent’) fact, having examined any relevant (including fresh) material, and deciding the question for itself. Precedent fact analysis is a species of ‘jurisdictional error’ Its logic is of an objective factual question, where the existence of the fact is needed to ‘trigger’ the public body’s proper function. Absent the fact being established, to the satisfaction of the reviewing Court, the public authority was acting without power (‘jurisdiction’). 49.1.1 Precedent fact: a well-established doctrine. R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 at §29 (Lady Hale, discussing the “ancient and respectable pedigree” of precedent fact); Eshugbayi Eleko v Government of Nigeria [1931] AC 662, 669 (Lord Atkin, describing “three conditions precedent to any authority to make an order”, whose “existence can and must be investigated by the Court whenever the validity of the order or a deportation order founded on it is the subject of contest in judicial proceedings”); Liversidge v Sir John Anderson [1942] AC 206, 273 (Lord Wright, referring to Eleko: “It was a question of the extent of the authority given by the ordinance. That depended on specific facts, capable of proof or disproof in a court of law, and unless these facts existed, there was no room for executive discretion”); {P47} (jurisdictional error); {16.2} (precedent fact/objective fact as hard-edged review); R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748 at §4 (describing “a fact precedent to the exercise of the local authority’s powers under the 1989 Act and on that ground … a question for the courts”). 49.1.2 Dual analysis: objective fact or precedent fact. {49.2.1} (objective question of fact: a species independent of precedent fact). 49.1.3 Precedent fact in action: illustrations. R (Begum) v Entry Clearance Officer [2019] EWHC 2196 (Admin) at §§27(1), 47, 106 (precedent fact challenge succeeding in right-of-abode case); R (Bluefin Insurance Services Ltd) v Financial Ombudsman Service Ltd [2014] EWHC 3413 (Admin) [2015] Bus LR 656 at §72 (eligibility involving questions of precedent fact); R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 at §32 (“child” as a “jurisdictional fact”); R (Harrison) v SSHD [2003] EWCA Civ 432 [2003] INLR 284 at §33 (explaining that, in a case concerning refusal of a passport, “whether a person is a British citizen is a matter of precedent fact”); R v SSHD, ex p Khawaja [1984] AC 74 (“illegal entrant” a precedent fact); R (Lim) v SSHD [2006] EWHC 3004 (Admin) at §22 (whether breach of condition on leave to remain treated as a precedent fact); Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, 112C-114E (detention “pending removal” as jurisdictional question for the Court); London Borough of Islington v Camp (1999) [2004] LGR 58, 67e (whether councillor “disqualified” a precedent fact); R v Commissioners of Customs and Excise, ex p Lunn Poly Ltd [1999] EuLR 653, 661A-662C

115The

equivalent section in a previous edition was relied on in Dott Services Ltd v AG [2016] UGHCCD 130 (High Court of Uganda) (Musota J).

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(“state aid” a precedent fact); R (Britannic Asset Management Ltd) v Pensions Ombudsman [2002] EWHC 441 (Admin) at §10 (“administrators of the pension scheme” characterised as “jurisdictional or precedent fact”) (CA is [2002] EWCA Civ 1405 [2002] 4 All ER 860). 49.1.4 Question not characterised as a precedent fact: illustrations. R (Giri) v SSHD [2015] EWCA Civ 784 [2016] 1 WLR 4418 at §19 (determination of questions of fact in the application of the immigration rules not precedent fact but subject to Wednesbury review); R (MN (Tanzania) v SSHD [2011] EWCA Civ 193 [2011] 1 WLR 3200 (whether a “fresh claim” a question for the Secretary of State subject to unreasonableness review with anxious scrutiny); R (Queen Mary University of London) v Higher Education Funding Council for England [2008] EWHC 1472 (Admin) at §22 (whether breach of grant conditions not a precedent fact); R v Secretary of State for Employment, ex p National Association of Colliery Overmen, Deputies & Shotfirers [1994] COD 218 (seldom that matters of fact will fall within the ‘precedent fact’ category); R v SSHD, ex p Bugdaycay [1987] AC 514, 522G-523B (“refugee” not a precedent fact); Barnard v Gorman [1941] AC 378 (“offender” not a precedent fact); R (Jones) v Mansfield District Council [2003] EWCA Civ 1408 [2004] Env LR 391 at §17 (“likely significant effects on the environment” not a precedent fact). 49.1.5 Precedent fact part of jurisdictional error. {47.1} (jurisdictional error). 49.1.6 Precedent fact: hard-edged question. {16.2} (precedent fact/objective fact as hard-edged review). 49.1.7 Precedent fact: fresh evidence. {17.2.12} (fresh evidence and precedent fact/ objective fact).

49.2 Objective question of fact. In certain contexts, judicial review is available because the defendant public authority has reached a decision which is wrong as to an objective question of fact, which question is properly one for the reviewing Court to decide for itself, on the evidence before the Court. This situation can arise independently of the doctrine of ‘precedent fact, thus liberating the law from a ‘jurisdictional error’ approach. It is sufficient that the enabling Act is interpreted as involving an objective question correctable by the Courts. A similar situation is where the HRA – as a controlling statute – requires a ‘merits review’ including in relation to questions of fact. 49.2.1 Objective question of fact: a species independent of precedent fact. R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 (“child” as an objective question of fact) at §14 (describing the argument that the statutory scheme was referring to an “objective fact”), §27 (a question as to which: “There is a right or a wrong answer”), §28 (statute distinguishing between objective question and questions of judgment for the local authority), §29 (“I reach those conclusions on the wording of the 1989 Act and without recourse to the additional argument … that ‘child’ is a question of jurisdictional or precedent fact”), §50 (Lord Hope, agreeing), §51 (“a question of fact which must ultimately be decided by the court”), §53 (“an objective fact. The scheme of the Act shows that it was not Parliament’s intention to leave this matter to the judgment of the local authority”), applied in R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748 at §4 (“the question whether a person is or is not a child, which depends entirely on the objective fact of the person’s age, is subject to the ultimate determination of the courts. … If such a decision remains in dispute after its initial determination by the local authority, it is for the court to decide by judicial review”, making clear that this was distinct from the alternative precedent fact analysis: “It is a fact precedent to the exercise of the local authority’s powers under the 1989 Act and on that ground also is a question for the courts”); R (Bluefin Insurance Services Ltd) v Financial Ombudsman Service Ltd [2014] EWHC 3413 (Admin) [2015] Bus LR 656 at §43 (Wilkie J, explaining that A (Croydon) had addressed the “obligation of the court to make its own decision on an issue independent of whether or not it was a matter of ‘precedent fact’”)§ 45 (precedent fact and objective question of fact put forward as alternative analyses), §§72-74 (accepting both alternative analyses); {P49.1} (precedent fact); {P47} (jurisdictional error). 630

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49.2.2 ‘Child’/‘unaccompanied child’ as objective question of fact. {49.2.1} (objective question of fact: a species independent of precedent fact); R (AA (Sudan)) v SSHD [2017] EWCA Civ 138 [2017] 1 WLR 2894 (on the proper interpretation of the statute, “unaccompanied child” an objective question for the Court), §36 (“a matter of objective fact”), §37 (based on “what Parliament intended”). 49.2.3 British citizenship raising an objective question of fact. R (Harrison) v SSHD [2003] EWCA Civ 432 [2003] INLR 284 at §31 (on the proper interpretation of the statutory scheme, if claimant can “establish the facts as he alleges them to be, he would have a legal right to be a British citizen”), §34 (“If … there is a dispute as to whether a person has the legal right under the [statute] to the status of a British citizen … the court will itself resolve any issues of fact as well as any issues of law”), §33 (explaining that, in a case concerning refusal of a passport, “whether a person is a British citizen is a matter of precedent fact”); R (Othman) v SSHD [2019] EWHC 340 (Admin) at §22 (“the court … considers for itself whether the Claimant has established the claimed identity”); R (Ali) v SSHD [2020] EWHC 390 (Admin) at §8 (“it is for the court to decide for itself whether the claimant is a British citizen”); R (Nmai) v SSHD [2020] EWHC 1139 (Admin) at §9. 49.2.4 Objective question of fact, correctable by the judicial review court. R (Coventry Gliding Club Ltd) v Harborough District Council [2019] EWHC 3059 (Admin) at §11 (whether discharge of statutory requirement of notice placed near land “a question of objective fact to be determined by the court”); R (Bluefin Insurance Services Ltd) v Financial Ombudsman Service Ltd [2014] EWHC 3413 (Admin) [2015] Bus LR 656 at §§73-74 (even if not a precedent fact, whether an eligible complainant involving an objective question of fact for the court to decide “right or wrong”); R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748 at §4 (an “objective fact … subject to the ultimate determination of the courts”); R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 at §51 (“a question of fact which must ultimately be decided by the court”); R (Clear Channel UK Ltd) v Hammersmith & Fulham LBC [2009] EWCA Civ 2142 (whether deemed consent for advertisement) at §7 (proceeding on the basis “that it was for the judge to decide as a matter of fact whether there had been a material alteration”); R v Secretary of State for the Environment Transport and the Regions, ex p Alliance Against the Birmingham Northern Relief Road [1999] Env LR 447, 466-467 (“information relating to the environment”, and commercial confidentiality as objective questions of fact for the Court); cf R v Director General of Telecommunications, ex p Cellcom Ltd [1999] ECC 314 at §24 (whether a demand “reasonable” under the statutory phrase “such telecommunication services as satisfy all reasonable demands for them” an objective question for the Court). 49.2.5 HRA requiring merits review (objective factual review): Article 6. {59.5.9} (Article 6: judicial review/appeal (‘full jurisdiction’) suffices). 49.2.6 HRA requiring merits review (objective factual review): other. {15.4.5} (‘full merits review’ under the HRA); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §54 (Lord Mance: “the remedy of judicial review is in appropriate cases apt to cover issues of fact as well as law”).

49.3 Material error of fact.116 Gone are the days when judicial review for ‘error of fact’ (beyond ‘precedent fact’) was a forbidden territory. The Courts can grant judicial review for material error of fact. Leading articulations of principle have been ‘misunderstanding of an established and material fact’ and ‘material mistake of fact leading to unfairness’.

116The

equivalent paragraph in a previous edition was relied on in E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 at §51 (Carnwath LJ); R (S) v SSHD [2007] EWHC 426 (Admin) at §11 (Sullivan J); Re Akorita LRX/16/2008 (Lands Tribunal, 12 February 2009) (HHJ Huskinson).

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There is a continued, cautious dynamism and simplification in the development of principle in this area. 49.3.1 Judicial review for material error of fact: recent illustrations. R (Michael) v Governor of HMP Whitemoor [2020] EWCA Civ 29 [2020] 1 WLR 2524 at §48 (“This is an example of a decision which proceeded upon a straightforward and undisputed misunderstanding of a central material fact”), §50 (“The undoubted error of fact was material”); Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 1461 (Admin) at §147 (“there was a material error of fact”); R (British Gas Trading Ltd) v Gas and Markets Authority [2019] EWHC 3048 (Admin) at §§87-88 (error of fact from mistaken factual assumption); R (Horeau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) [2019] 1 WLR 4105 (DC) at §§216, 227 (no “material error of fact”) (upheld in CA: [2020] EWCA Civ 1010 at §§85, 165-183); R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 at §57 (reasons flawed because they “contained errors of fact”, as well as regard to irrelevancies and disregard of irrelevancies); F v M [2017] EWHC 949 (Fam) [2018] Fam 1 at §47 (Hayden J: “a misdirection in fact … may form the basis of judicial review”). 49.3.2 ‘Misunderstanding/ignorance of an established and relevant fact’: Lord Bingham. Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430 at §7 (Lord Bingham, describing judicial review as available where “the decision-maker is shown to have misunderstood or been ignorant of an established and relevant fact”), cited in James v Hertsmere Borough Council [2020] EWCA Civ 489 at §20 (Peter Jackson J) and Adesotu v Lewisham LBC [2019] EWCA Civ 1405 [2019] 1 WLR 5637 at §15 (Bean LJ), and in Bubb v Wandsworth LBC [2011] EWCA Civ 1285 [2012] PTSR 1011 at §21 (Lord Neuberger MR); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1031-1032 (referring to “misunderstanding or ignorance of an established and relevant fact”); R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 344G-345C (approving the principle “misunderstanding or ignorance of an established and relevant fact” and also “taking into account of a mistaken fact”); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §53 (“the court had jurisdiction to quash for a misunderstanding or ignorance of an established and relevant fact”), §§61-62 and §169 (review for error of fact); R (Bavi) v Snaresbrook Crown Court [2013] EWHC 4015 (Admin) [2014] ACD 52 at §§13(1), 18 (forfeiture order quashed because “made in ignorance of established and relevant fact, namely the claimant’s medical condition, giving rise to an error of law”); R (Green) v Financial Ombudsman Service Ltd [2003] EWHC 338 (Admin) at §60 (asking whether decision-maker shown to have misunderstood or been ignorant of an established and relevant fact). 49.3.3 ‘Material mistake of fact, leading to unfairness’: the E criteria. E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 (Lord Phillips MR, Mantell and Carnwath LJJ, in a case about appeal for “error of law”) at §42 (appeal for “error of law” treated as identical to grounds for judicial review), §66 (as to “a mistake of fact giving rise to unfairness … the ordinary requirements … are … [f]irst, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning”); R (Daly) v Commissioner of Police of the Metropolis [2018] EWHC 438 (Admin) [2018] 1 WLR 2221 at §31 (Sir Brian Leveson P, describing the E criteria as the principle of “material mistake of fact leading to unfairness”); R (DPP) v Sunderland Magistrates’ Court [2018] EWHC 229 (Admin) [2018] 1 WLR 2195 at §11 (Sweeney J: “in administrative law, mistake of fact resulting in unfairness can be a ground for judicial review if five conditions are met, namely that: (1) All the participants had a shared interest in co-operating to achieve the correct result. (2) There was a mistake as to an existing fact. … (3) The fact or evidence has been ‘established’ – in the sense that it is uncontentious 632

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and objectively verifiable. (4) The person relying on the mistake, and/or his advisers, was not responsible for the mistake. (5) The mistake played a material (not necessarily decisive) part in the court’s reasoning”), §110 (“material mistake of fact resulting in unfairness”); R (Ground Rents (Regisport) Ltd) v Upper Tribunal [2013] EWHC 2638 (Admin) [2014] ACD 38 at §26 (Leggatt J, holding that E criteria satisfied where UT refused permission to appeal making an incorrect factual assumption); R (H) v Parole Board [2011] EWHC 2081 (Admin) at §§49-52 (Parole Board’s refusal to transfer to open conditions vitiated by errors of fact meeting the E conditions); R (Connolly) v Secretary of State for Communities and Local Government [2009] EWCA Civ 1059 [2010] 2 P & CR 1 at §37 (decision vitiated by “unfairness arising out of a mistake of fact”, for which the claimant was “not responsible” and which “played a material part in the inspector’s reasoning”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010 at §165 (summarising the E criteria). 49.3.4 Modified review: material error of fact not applicable. R (Daly) v Commissioner of Police of the Metropolis [2018] EWHC 438 (Admin) [2018] 1 WLR 2221 at §28 (court “not … prepared to extend mistake of facts into decision making in relation to search warrants. To do so would be to remove search warrants of their potency because whenever the execution of the warrant does not reveal evidence which justifies the reasonable grounds, it will be contended that the mistake of fact effectively removes the protection of police officers acting pursuant to the warrant”), §31 (“while material mistake of fact leading to unfairness can be available as a ground of judicial review in some circumstances, whether it is in fact available will depend upon the nature of the case before the court”); {P32} (modified review). 49.3.5 Judicial review for ‘material error of fact’: other cases. R (Brook) v Preston Crown Court [2018] EWHC 2024 (Admin [2018] ACD 95 at §61 (Leggatt LJ: search warrant unlawful because “issued on the basis of a plainly material error of fact”); R (Watt) v Hackney LBC [2016] EWHC 1978 (Admin) [2016] ACD 115 (E criteria met); R (M) v Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 [2017] 4 WLR 30 at §63 (Arden LJ: “this misstatement of the evidence discloses error in public law”), §68 (“misstatements of material evidence”); R (Manydown Ltd) v Basingstoke & Deane Borough Council [2012] EWHC 977 (Admin) at §95 (Lindblom J: “An authority’s decision would be unlawful if based on a material mistake of fact”), §152 (error of fact here); R (March) v Secretary of State for Health [2010] EWHC 765 (Admin) (2010) 116 BMLR 57 at §20(iii) (Holman J: “A public law decision may be quashed in the published reasons or reasoning of the government reveal a material error of fact in their reasoning process. But the claimant must demonstrate that (i) there is an error of fact; and (ii) it was material and that a different decision might have been made but for the error”), §53 (judicial review granted because decision infected by material error of fact); R (Lunt) v Liverpool City Council [2009] EWHC 2356 (Admin) [2010] RTR 38 at §43 (decision quashed because decision “based on the fundamental misunderstanding of the true factual position”); R (Jenkinson) v Nursing & Midwifery Council [2009] EWHC 1111 (Admin) at §29 (“decision premised on error of fact”); R (MH) v Bedfordshire County Council [2007] EWHC 2435 (Admin) [2008] ELR 191 at §51 (decision vitiated by error of material fact); R (Ali) v SSHD [2007] EWHC 1983 (Admin) at §24 (“decision maker reached a decision on a material misunderstanding of the true facts”), §26 (“failure to have regard to the proper factual situation”); R (Omar) v Chief Constable of Bedfordshire Constabulary [2002] EWHC 3060 (Admin) at §40 (“the decision was taken on an incorrect basis of fact, on the material then available to the police. That kind of error permits this court to intervene”); R (Meredith) v Merthyr Tydfil County Borough Council [2002] EWHC 634 (Admin) at §31 (describing as “now a recognised head of judicial review in English law that a decision could be invalidated if the decision maker acted upon an incorrect basis of fact”), §32 (“the head of review is now sufficiently well established for me to rely upon it”); R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510 [2002] QB 1129 at §64 (“material error of fact”); R v Parliamentary Commissioner for Administration, ex p Balchin [1998] 1 PLR 1, 15B-C (Sedley J, describing error of fact as “reviewable if crucial to the decision”); R v North Somerset District Council, ex p Cadbury Garden Centre Ltd The Times 22 November 2000 (planning decision treated as flawed because made on a factually unsound basis); R v Chief Registrar of Friendly Societies, ex p New Cross Building Society [1984] QB 227, 273E-F 633

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(Slade LJ: “If the society were in a position to prove by compelling evidence that a particular finding of crucial fact by the chief registrar was clearly wrong, this might give the court power to intervene”); R v Hertfordshire County Council, ex p Cheung The Times 4 April 1986 (see transcript) (Sir John Donaldson MR, suggesting the court could quash a recommendation if “reached by the application of a policy which was flawed by an error of fact”). 49.3.6 Whether the fact is ‘established’/‘objectively verifiable’. R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §116 (Sir Brian Leveson P, Jay and Garnham JJ, describing error of fact as a “rare sub-category of judicial review [which] applies only to situations where the relevant fact is or has been established”); Johnson v Royal Borough of Windsor and Maidenhead [2019] EWHC 160 (Admin) at §79 (“the doctrine of mistake of fact requires that the ‘mistaken’ fact be ‘established’ in the sense of being uncontentious and objectively verifiable”); R (Ikram) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1869 (Admin) at §92 (error not “established”); Rainbow Insurance Co Ltd v Financial Services Commission [2015] UKPC 15 at §39 (“the facts are not uncontentious or established by verifiable objective information”); R (Institute for Chartered Accountants in England and Wales) v Lord Chancellor [2019] EWHC 461 (Admin) at §79 (“matters of opinion and evaluation rather than of objectively verifiable fact”); XX (Ethiopia) v SSHD [2012] EWCA Civ 742 [2013] QB 656 at §58 (no “mistake as to existing” or “established” fact); Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin) at §117. 49.3.7 Whether the error of fact was ‘material’. R (Wilson) v Prime Minister [2019] EWCA Civ 304 [2019] 1 WLR 4174 at §48 (no evidential basis for concluding that error material); R (Mitchell) v SSHD [2008] EWHC 1370 (Admin) at §16 (error of fact but not decisive); E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 at §63 (treating as a necessary ingredient that: “The mistaken impression played a material part in the reasoning”); Simplex v Secretary of State for the Environment (1988) [2017] PTSR 1041, 1060B (whether factual error “a significant factor in the decision-making process”); R v Independent Television Commission, ex p Virgin Television Limited [1996] EMLR 318 (“if [the] decision was truly based on erroneous fact, then the decision itself was flawed. But, as Lord Templeman made clear in TSW, mistakes of fact may be made provided that the mistakes are not grave enough to undermine the basis of a multi-faceted decision”). 49.3.8 Vitiating errors relating to fact: other cases. R (Lazarov) v Bulgaria [2018] EWHC 3050 (Admin) at §4 (Holman J, identifying “so many errors of fact that [the] decision cannot be said to be a decision based upon the facts of this case at all”), §9 (“the reasons simply cannot be considered as addressing the true and actual facts of this case at all”); R (Delaney) v Parole Board [2019] EWHC 779 (Admin) at §§12-13 (failure to make findings of fact); R (A) v Independent Appeal Panel for Sutton LBC [2009] EWHC 1223 (Admin) [2009] ELR 321 at §§70, 74 (error of law in panel’s failure to make a finding of fact on a relevant issue); R v Immigration Officer, ex p Quaquah [2000] INLR 196, 205F (“The Secretary of State misdirected himself on the facts”); Simplex GE (Holdings) v Secretary of State for the Environment (1988) [2017] PTSR 1041 at 1060 (where factual mistake in reaching planning decision, decision ultra vires unless error insignificant or insubstantial or court satisfied that same decision would have been reached on other valid reasons given); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1047F-G (Lord Wilberforce, referring to judicial review where the Minister acted “upon an incorrect basis of fact”); {51.2.4} (decision-maker failed to grapple with the material/issues); R (Sambotin) v Brent LBC [2018] EWCA Civ 1826 [2019] PTSR 371 at §3 (“fundamental mistake of fact” permitting a final decision to be retaken, referring to Porteous [2004] EWCA Civ 244); R v Newham LBC, ex p Begum (1996) 28 HLR 646, 656 (although error of fact not “a sufficient basis for quashing the decision. … Nevertheless the decision cried out for review when the error, on so important a matter, was drawn to the council’s attention by the [claimant]’s solicitors. … A failure to reconsider the decision in those circumstances would in my judgment have been unlawful”); R v Inner London North Coroner, ex p Touche [2001] EWCA Civ 383 [2001] QB 1206 at §36 (although decision was originally correct, coroner should have changed his mind on information subsequently brought to his attention). 634

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49.3.9 Unjustified departure from another body’s findings. {55.3.4}-{55.3.14} (unjustified departure from another body’s position). 49.3.10 Error of fact and fresh evidence. {17.2.13} 49.3.11 Judicial review for error of fact: the traditional restraint.117 {13.2} (restraint and factual appreciation); R v London Residuary Body, ex p Inner London Education Authority (1987) [1998] JR 238, 240 (“a mistake as to fact can vitiate a decision as where the fact is a condition precedent to an exercise of jurisdiction, or where the fact is the only evidential basis for a decision or where the fact was as to a matter which expressly or impliedly had to be taken into account. Outside those categories we do not accept that a decision can be flawed in this court, which is not an appellate tribunal, upon the ground of mistake of fact”); R v Secretary of State for Education, ex p S [1995] ELR 71, 82E, 83B (despite a “gross factual error”, decision nevertheless upheld as “reached within the proper exercise of the Minister’s discretion”); South Glamorgan County Council v L and M [1996] ELR 400, 411F-412H (error of fact not a ground for judicial review; applying ILEA); Wandsworth LBC v A [2000] 1 WLR 1246, 1255H-1256B (“there is still no general right to challenge the decision of a public body on an issue of fact alone”); Adan v Newham LBC [2001] EWCA Civ 1916 [2002] 1 WLR 2120 at §41 (Brooke LJ: “a court of supervisory jurisdiction does not, without more, have the power to substitute its own view of the primary facts for the view reasonably adopted by the body to whom the fact-finding power has been entrusted”); {17.3} (judicial review and factual disputes); {13.2.3} (the fact/law distinction); {48.1.7} (fact/law: a flexible policy-informed approach). 49.3.12 Misapprehension of fact as relevancy/irrelevancy. Cheshire County Council v Secretary of State for the Environment [1995] Env LR 316, 330-332 (“if there was an error in the factual background of which the Secretary of State should have been aware, then his decision would have failed to take into account the correct factual background [and would be liable to be quashed]”); R v Housing Benefit Review Board of the London Borough of Sutton, ex p Keegan (1995) 27 HLR 92, 100 (conclusion “was arrived at in the teeth of the evidence and was accordingly Wednesbury unreasonable. … If I am wrong in this regard, I should make it plain that I am satisfied that a consideration of the findings of fact and the Board’s reasons for their decision indicate a failure to take properly into account the effect of [the claimant’s statement]”); R v Secretary of State for Education, ex p E [1996] ELR 312, 324B-C (assumptions about claimant and her family’s religious observance, and nature of the Jewish faith, “were wrong assumptions upon which the [defendant] acted and as such her decision is flawed in law”, “the decision was taken by taking into account matters which should not have been taken into account and, as such, the decision … is irrational”); South Glamorgan County Council v L and M [1996] ELR 400, 411F-412H (not enough that factual mistake in relation to a matter which body was entitled to take into account).

49.4 Unsustainable conclusion of fact. Before the emergence of ‘material error of fact’ there were well-established conventional bases for a judicial review Court to intervene in cases of unsustainable conclusions of fact, characterised as errors of law or unreasonableness. These conventional principles remain available, if needed. 49.4.1 Unsustainable conclusion of fact as error of law.118 Edwards v Bairstow [1956] AC 14, 36 (Lord Radcliffe: “it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances … the court must intervene. It has no option but to

117The

equivalent paragraph in a previous edition was relied on in Wandsworth LBC v A [2000] 1 WLR 1246 at 1256D (Buxton LJ). 118The equivalent paragraph from a previous edition was relied on in R (KW) v Avon and Wiltshire MHP NHS Trust [2003] EWHC 919 (Admin) [2003] MHLR 315 at §23 (Silber J); Watson’s Application (Dollingstown FC) [2011] NIQB 66 at §28 (Coghlin LJ).

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assume that there has been some misconception of the law and that this has been responsible for the determination. So … there has been error in point of law”); Hemns v Wheeler [1948] 2 KB 61, 66 (“it is always a question of law … whether there was evidence to support … findings of fact and whether the inferences … drawn are possible inferences from the facts as found”); Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430 at §99 (Lord Millett: “A decision may be quashed if it is based on a finding of fact or inference from the facts which is perverse or irrational; or there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors. It is not necessary to identify a specific error of law; if the decision cannot be supported the court will infer that the decision-making authority misunderstood or overlooked relevant evidence or misdirected itself in law”); Stefan v General Medical Council (No 2) [2002] UKPC 10 at §6 (appeal on “a question of law”, where: “it is within the appellate jurisdiction of the Board to consider whether there is any or sufficient evidence to support a material finding. A clearly erroneous finding may disclose an error of law warranting interference. And a material misunderstanding of the evidence may amount to an error of law”); R v Medicines Control Agency, ex p Pharma Nord Ltd (1998) 10 Admin LR 646, 659C (questions of fact become questions of law “where the application of the statutory language to the facts as a matter of law requires only one answer”, so that “only one conclusion is possible on the facts”); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §61 (Lord Nolan, referring to Edwards v Bairstow); South Glamorgan County Council v L and M [1996] ELR 400 (warning against artificial attempts to extend jurisdiction to correct errors of law by contending that factual errors so flawed as to amount to error of law). 49.4.2 Unsustainable conclusion of fact as unreasonableness. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410G-411A (no need for “ingenious” Edwards v Bairstow solution of inferred mistake of law: “‘Irrationality’ by now can stand upon its own feet”); R v Housing Benefit Review Board of the London Borough of Sutton, ex p Keegan (1995) 27 HLR 92, 100 (conclusion “was arrived at in the teeth of the evidence and was accordingly Wednesbury unreasonable”); R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 at §73 (SSHD’s conclusion was unreasonable); R v Monopolies & Mergers Commission, ex p South Yorkshire Transport Ltd [1993] 1 WLR 23, 32H-33A (whether “the decision is so aberrant that it cannot be classed as rational”); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 862F; R v North West Suffolk (Mildenhall) Magistrates Court, ex p Forest Heath District Council [1998] Env LR 9, 18 (“It is obviously perverse and an error of law to make a finding of fact for which there is no evidential foundation”); cf R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin) (statutory appeal) at §§38, 42 (“fundamental errors of approach” in making findings of fact), §39 (key authorities on judicial determination of facts). 49.4.3 Decision unsupported by evidence. R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2019] UKSC 58 [2020] 2 WLR 1 at §32 (Lord Carnwath and Lord Sales: “An assessment made without any supporting evidence cannot stand”, applying Edwards v Bairstow [1956] AC 14 at 29); R (Mackay) v Parole Board [2019] EWHC 1178 (Admin) at §§39, 51 (decision “taken on facts unsupported by evidence”); R (JA) v London Borough of Bexley [2019] EWHC 130 (Admin) at §47 (decision “not properly based upon any of the evidence upon which the Defendant relied”); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at §3 (claimant seeking judicial review on grounds of “inconsistency with the evidence”); R (Treohan) v Inner London Crown Court [2018] EWHC 1137 (Admin) [2019] 1 Cr App R 8 at §9 (refusal of bail quashed, on grounds of “absence of any material to support the assertion that she might interfere with a witness”); 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 (legislative provision introduced by delegated legislation was unjustified by the evidence); Grafton Group (UK) Plc v Secretary of State for Transport [2016] EWCA Civ 561 [2017] 1 WLR 373 at §30 (although “matters of planning judgment” are for the planning decision-maker, “this does not absolve the decision-maker of the need to act on evidence. … There must be evidence to provide the factual materials upon which the planning decision-maker will form his conclusions”); 636

P49 Error of fact

Nzolameso v Westminster City Council [2015] UKSC 22 [2015] PTSR 549 at §31 (“The authority must … have a proper evidential basis for their decision”), §36 (accepted as one of the “applicable principles”); R (MD (Gambia)) v SSHD [2011] EWCA Civ 121 at §25 (Elias LJ: “The central issue … is whether the objective evidence is capable of sustaining the Secretary of State’s decision, or whether the decision … was a conclusion which no Secretary of State on the evidence could properly reach”); R (Laws) v Police Medical Appeal Board [2010] EWCA Civ 1099 [2011] ICR 242 at §20 (whether “no legally sufficient evidence to justify the conclusion”); Office of Fair Trading v IBA Health Ltd [2004] EWCA Civ 142 [2004] 4 All ER 1103 at §93 (“whether there was adequate material to support [the defendant’s] conclusion”); Reid v Secretary of State for Scotland [1999] 2 AC 512, 541G-G (whether decision “erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it”), 542C (whether “there was truly no evidence to support the conclusion which was reached”); R (Beresford) v Sunderland City Council [2003] UKHL 60 [2004] 1 AC 889 (council erring in law in reaching conclusion unsupported by evidence), §8 (“there was nothing in the material before the council to support [its] conclusion”), §51 (“not … a correct evidentiary conclusion”), §60 (facts not such as “justifies” inference drawn), §83 (no “evidence … justifying the conclusion”); Din (Taj) v Wandsworth LBC [1983] 1 AC 657, 664H (judicial review “for error in law including … absence of any material on which the decision could reasonably be reached”); Mahon v Air New Zealand Ltd [1984] AC 808, 820G-H (decision-maker “must base his decision upon evidence that has some probative value”); Attorney-General v Ryan [1980] AC 718, 732G (Minister needing to be “satisfied upon evidential material of probative value”), 733A (referring to findings of fact “base[d] upon proper evidential material”); R v Hillingdon LBC, ex p Islam (Tafazzul) [1983] 1 AC 688, 708D-G (conclusion “not supported by the facts”), 717G (“no evidence to support the panel’s decision”). 49.4.4 Stanley Burnton J’s primary and secondary facts. R (Higham) v University of Plymouth [2005] EWHC 1492 (Admin) [2005] ELR 547 at §32 (Stanley Burnton J, discussing findings of fact: “Such a finding, like all findings of fact, are susceptible of judicial review. In the case of a finding of primary fact, the test is whether there was evidence on the basis of which the decision maker could reasonably have made the finding. In the case of a finding of a secondary fact, the test is whether the primary facts found justified the secondary finding. The more serious the secondary fact, the more cogent must be the primary facts that lead to the secondary finding”). 49.4.5 Whether sufficiency of evidence. Kenyon v Secretary of State for Housing Communities and Local Government [2020] EWCA Civ 302 at §58 (“There was a sufficient evidential basis for the conclusion”); R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin) at §90 (“a screening authority must have sufficient evidence of the potential adverse environmental impacts and the availability and effectiveness of the proposed remedial measures, to make an informed judgment that the development would not be likely to have significant effects on the environment”); R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWCA Civ 1562 [2019] 4 WLR 151 at §70 (“whether the Secretary of State could rationally rely on the information available to him in reaching a decision”; “There was relevant evidence and informed scientific opinion”); R (Roxlena Ltd) v Cumbria County Council [2019] EWCA Civ 1639 at §73 (sufficient evidence justifying making of bridleway order, because “relevant material could properly be taken as amounting to a reasonable allegation”); Reid v Secretary of State for Scotland [1999] 2 AC 512, 541H-542A (“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”); Stefan v General Medical Council (No 2) [2002] UKPC 10 at §6 (appeal on “a question of law” includes “whether there is any or sufficient evidence to support a material finding”); R (Laws) v Police Medical Appeal Board [2010] EWCA Civ 1099 [2011] ICR 242 at §20 (whether “no legally sufficient evidence to justify the conclusion”). 49.4.6 Judicial review for lack of evidence: further examples. Summers v Richmond upon Thames LBC [2018] EWHC 782 (Admin) [2018] 1 WLR 4729 at §§63-64 (additional 637

GROUNDS FOR JUDICIAL REVIEW

requirements of public spaces protection order “objectionable” because “there was no evidence that could reasonably have justified” them, and “no evidence to suggest that [there] was a problem requiring” this”); R (Al-Zayyat) v General Medical Council [2010] EWHC 3213 (Admin) at §34 (“no sufficient evidential basis” for conclusion that claimant having capacity to proceed with disciplinary hearing); R (Daniel Thwaites Plc) v Wirral Borough Magistrates Court [2008] EWHC 838 (Admin) [2009] 1 All ER 238 at §63 (conclusion “without proper evidence”); R (Martin) v Harrow Crown Court [2007] EWHC 3193 (Admin) (“no evidence on which the court could properly [so] conclude”); R (Kenny) v Leeds Magistrates’ Court [2003] EWHC 2963 (Admin) [2004] 1 All ER 1333 at §56 (absence of necessary “evidential basis”); R (Price) v Carmarthenshire County Council [2003] EWHC 42 (Admin) at §23 (conclusion reached “without there being a proper evidential basis for doing so”); R v Mildenhall Magistrates’ Court, ex p Forest Heath District Council The Times 16 May 1997 (absence of evidential foundation constituting an error of law); R v Governor of Pentonville Prison, ex p Sotiriadis [1975] AC 1, 30E-F (“no evidence before the magistrate”); Secretary of State for Social Security v Tait [1995] COD 440 (absence of any reliable evidence treated as a matter of law); R v SSHD, ex p Abdi [1996] 1 WLR 298, 315E-F (statement as to knowledge and experience “is at least some evidence in support of the Secretary of State’s certificate”); R v Croydon LBC, ex p Graham (1994) 26 HLR 286, 291 (council’s conclusion “was not justified by the facts on which the council appear to have relied”); R v Governor of Belmarsh Prison, ex p Francis [1995] 1 WLR 1121, 1126F-G (“evidence upon which a reasonable magistrate properly directing himself in law could commit”); R v Camden LBC, ex p Cran (1996) 94 LGR 8, 38 (whether the decision was “on the basis of data which was manifestly grossly insufficient”); R v SSHD, ex p Zakrocki (1998) 1 CCLR 374 (no evidential basis for assertion); R v Hampshire County Council, ex p H [1999] 2 FLR 359, 366B (insufficient material upon which to base decision); R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin) [2004] 4 PLR 95 at §32 (“no possible basis on which the committee could reasonably have concluded” that the statutory test was met); Re T (Judicial Review: Local Authority Decisions Concerning Child in Need) [2003] EWHC 2515 (Admin) [2004] 1 FLR 601 at §135 (Wall J: “the decision … was made on inadequate information”); R v Bedwellty Justices, ex p Williams [1997] AC 225, 237C-E (judicial review available where “committal based solely on inadmissible evidence” or “based solely on evidence not reasonably capable of supporting it”).

638

P50 Abdication/fetter.119 A public authority must not surrender its function, as by: (a) acting under dictation; (b) improperly delegating its powers; or (c) operating an inflexible policy. 50.1 Basic duty not to abdicate/fetter 50.2 Acting under dictation 50.3 Improper delegation 50.4 Fetter by inflexible policy

50.1 Basic duty not to abdicate/fetter.120 A public authority’s statutory functions, powers and duties are inalienable. It must ‘own’ them, and its actions. Public authorities are not entitled to surrender or ignore their powers and duties, or ‘fetter’ their discretion. 50.1.1 Inalienability. {P40} 50.1.2 Not entitled to abdicate/surrender power. Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §68 (Lord Reed, describing “the rule of domestic administrative law that a statutory power of decision-making must be exercised by the person on whom the power has been conferred”), §72 (decision was “not taken in the exercise of their own independent judgment”); R (DS) v SSHD [2019] EWHC 3046 (Admin) [2020] Imm AR 409 §§70, 72 (unlawful delegation and abdication of reconsideration function); R (S) v SSHD [2007] EWCA Civ 546 at §50 (Carnwath LJ: “A public authority may not adopt a policy which precludes it from considering individual cases on their merits, nor may it allow its treatment of applications to be dictated by agreement with another government body”); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 (no surrender of judgment by DSFO); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 551D-E (Secretary of State “cannot lawfully surrender or release the [statutory] power contained … so as to purport to exclude its future exercise either by himself or by his successors”). 50.1.3 Delay as abdication of function. R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513 (unlawful decision not to bring statute into force); Engineers & Managers Association v Advisory Conciliation & Arbitration Service [1980] 1 WLR 302 (indefinite delay as abdication of power); R (S) v SSHD [2007] EWCA Civ 546 at §50 (unlawful “to defer a whole class of applications without good reasons”); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] STC 1500 (unlawful to defer statutory duty to repay VAT); {53.1.13} (delay as frustrating the legislative purpose). 50.1.4 Not entitled to ignore a duty. {P39} (discretion/duty); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] STC 1500 (not entitled to defer payment where statutory duty to make it and no room for a general power to delay/defer); R v Secretary of State for the Environment Transport and the Regions, ex p Watson 21 July 1998 unreported (Minister not entitled, on grounds of inconvenience, to dispense with a statutory requirement and process applications in the face of a statutory prohibition). 50.1.5 Duty not to allow policy guidance to bind. R v Police Complaints Board, ex p Madden [1983] 1 WLR 447 (fetter by erroneously treating policy guidance as binding); 119The

equivalent section in a previous edition was relied on in R (Ali) v MCO [2012] EWHC 1943 (Admin) at §36 (Beatson J). 120The equivalent paragraph in a previous edition was relied on in Hon Shawn K Richards v Constituency Boundaries Commission (Eastern Caribbean Supreme Court, 29 October 2009) at §356 (Thomas J); HKSAR v Lew Mon Hung [2018] HKCA 116 at §151(2) (Hon Poon JA).

GROUNDS FOR JUDICIAL REVIEW

R (S) v London Borough of Brent [2002] EWCA Civ 693 [2002] ELR 556 at §15 (appeal panel must not neglect Secretary of State’s guidance, but must not treat it as “something to be strictly adhered to”); {50.4} (fetter by inflexible policy). 50.1.6 Policy guidance: whether consistent with statutory duty/scheme. R (Milner) v South Central Strategic Health Authority [2011] EWHC 218 (Admin) at §45 (“a public body must have regard to relevant published government policy insofar as it is not inconsistent with statute or regulations”), §57 (here, statutory scheme “not consistent with, and leaves no room for, application of the alleged government policy”); Laker Airways Ltd v Department of Trade [1977] QB 643 (guidance ultra vires as cutting across the statute and requiring CAA to revoke licence). 50.1.7 Basic duty not to ‘fetter’ the discretion. R v SSHD, ex p Venables [1998] AC 407, 496G-497C (Lord Browne-Wilkinson: “the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. … By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise”); {50.4} (fetter by inflexible policy); R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697 at §§78-79 (Lord Sumption, describing “the rule against the fettering of discretions” as a “rule of long standing”, citing R v Port of London Authority, ex p Kynoch Ltd [2919] 1 KB 176, 184 and British Oxygen Co Ltd v Board of Trade [1971] AC 610, 625); R (Kilby) v Basildon District Council [2007] EWCA Civ 479 [2007] HLR 586 (fettering of discretion by secure tenancy term).

50.2 Acting under dictation.121 A public authority must not surrender its independent judgment to a third party. Nor must one public authority bring about the surrender of another public authority’s independent judgment. 50.2.1 Abdication: the ‘puppet’. R (DS) v SSHD [2019] EWHC 3046 (Admin) [2020] Imm AR 409 §72 (unlawful abdication by policy of reconsidering only if certain body interceding); Lavender (H) & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231 (unlawful fetter for Minister of Housing to make the views of the Minister of Agriculture the sole material consideration); Commissioner of Police v Benjamin [2014] UKPC 8 (police acted lawfully in prosecuting notwithstanding direction not to prosecute, which DPP had no power to issue); R v Chief Constable Thames Valley Police, ex p Police Complaints Authority [1996] COD 324 (unlawful fetter for PCA to treat decision of DPP as in effect binding); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 538C (discretion “must be exercised by him” and “not at the dictation of another Minister or body”); R v Police Complaints Board, ex p Madden [1983] 1 WLR 447 (fetter by erroneously treating policy guidance as binding); R v Teignmouth District Council, ex p Teignmouth Quay Co Ltd [1995] 2 PLR 1, 8C-D (council must not abdicate function of deciding whether breach of planning control to third parties); R v Parole Board, ex p Watson [1996] 1 WLR 906, 916F (Parole Board having to make up its own mind, not simply review Secretary of State’s reasons for revocation of parole); R v Birmingham City Justice, ex p Chris Foreign Foods (Wholesalers) Ltd [1970] 1 WLR 1428 (magistrate’s conduct in retiring “to take advice” from two officials calling into question whether decision taken was really his); R v Tandridge District Council, ex p Al Fayed [1999] 1 PLR 104, 110D-F (right to give great weight to advice of expert bodies on technical matters; no abdication providing that not treating decision as conclusively determined by those bodies) (CA is at [2000] 1 PLR 58); R v SSHD, ex p Dinc [1999] INLR 256, 262C-E (SSHD required to make up own mind as to deportation, in light of a recommendation by the Crown Court); R (Barry) v Liverpool City Council [2001]

121The

equivalent paragraph in a previous edition was relied on in R (Corner House) v Director of the Serious Fraud Office [2008] EWHC 714 (Admin) at §68 (Moses LJ); In re McDonagh [2019] NIQB 5 at §§15, 25 (Deeny LJ).

640

P50 Abdication/fetter

EWCA Civ 384 [2001] LGR 361 at §§26 and 41 (although licensing authority treating police clearance as a requirement, decision not unlawfully delegated to police). 50.2.2 Abdication: ‘rubber-stamping’. R (L) v SSHD [2003] EWCA Civ 25 [2003] 1 WLR 1230 at §67 (SSHD would be acting unlawfully were he to “rubber stamp” Czech asylum applications as clearly unfounded, there being a duty to consider on an individual basis whether the claim is bound to fail); R v South Somerset District Council, ex p DJB (Group) Ltd (1989) 1 Admin LR 11 (no “mindless rubber stamping” here of committee’s decision); R v Metropolitan Borough of Sefton, ex p Healiss (1995) 27 HLR 34 (duty to consider whether claimant homeless; not simply to rely on earlier refusal of housing transfer application); R v SSHD, ex p Oladehinde [1991] 1 AC 254, 301F-G (rejecting submission “that the decision to deport was taken by the immigration officers concerned and not by the inspectors”); R v Special Adjudicator, ex p Paulino [1996] Imm AR 122 (adjudicator needing to make up own mind as to whether agreeing with Secretary of State’s certification); R v SSHD, ex p Abdi [1996] 1 WLR 298, 304H, 314C (adjudicator’s position where Secretary of State satisfied that safe third country); Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] 1 PLR 85, 96E (extent to which Secretary of State entitled to leave pollution control matters to Pollution Inspectorate). 50.2.3 Dictation/procured-abdication: the ‘puppeteer’. R (Bridgerow Ltd) v Cheshire West and Chester Borough Council [2014] EWHC 1187 (Admin) [2015] PTSR 91 at §36 (where decision lawfully delegated to a panel of three, full licensing committee not entitled to “arrogate the delegated power to itself”); Commissioner of Police v Benjamin [2014] UKPC 8 at §§1, 9 (DPP having no power to direct police not to prosecute); R (Girling) v Parole Board [2006] EWCA Civ 1779 [2007] QB 783 (Secretary of State’s directions characterised as merely suggestions so as not to compromise independence of parole board); Laker Airways Ltd v Department of Trade [1977] QB 643 (guidance ultra vires as cutting across the statute and requiring CAA to revoke licence); R v Police Complaints Board, ex p Madden [1983] 1 WLR 447 (received guidance could not lawfully bind); R v Worthing Borough Council, ex p Burch (1985) 50 P & CR 53 (circular unlawful as having practical effect of constraining local authority); R v Port Talbot Borough Council, ex p Jones [1988] 2 All ER 207 (borough housing officer unlawfully “dominated” by tenancy committee chairman); R v Secretary of State for the Environment, ex p Lancashire County Council [1994] 4 All ER 165 (Ministerial policy fettering the Local Government Commission); R v City of Sunderland, ex p Baumber [1996] COD 211 (educational psychologists’ discretion to consult under regulations improperly fettered by instructions issued to them by employer authority); R (United Kingdom Renderers Association Ltd) v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 749 [2003] Env LR 178 (Secretary of State’s guidance recommending that local authorities impose a general licence condition not unlawful).

50.3 Improper delegation. There are sound practical reasons for a degree of shared or transferred responsibility, for example between a Minister and departmental officials. However, a public authority may not ‘give away’ its functions to another body by impermissibly delegating its function, including to its own officials or committees. What is permissible depends on analysing the function and context, any statutory scheme, and the arrangements made. 50.3.1 Officials act for Ministers: the Carltona principle. R (TM (Kenya)) v SSHD [2019] EWCA Civ 784 [2019] 4 WLR 109 at §22 (Holroyde LJ, describing the Carltona principle “that functions given to government ministers can be exercised on their behalf by responsible officials of the government department concerned”); R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §49 (Lord Reed: “the [Carltona] principle is that a decision made on behalf of a minister by one of his officials is constitutionally the decision of the minister himself”), §50 (principle inapplicable to the holder or a statutory office); R v SSHD, ex p Oladehinde [1991] 1 AC 254, 300A-B; R (National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154 at §24. 641

GROUNDS FOR JUDICIAL REVIEW

50.3.2 Whether Carltona principle displaced/inapplicable. R v Adams [2020] UKSC 19 [2020] 1 WLR 2077 (power to make interim custody order not capable of being exercised for the Minister by an official under the Carltona principle); R (Forsey) v Northern Derbyshire Magistrates’ Court [2017] EWHC 1152 (QB) [2017] ICR 1161 (departmental official acted lawfully in commencing criminal proceedings for the Secretary of State, the Carltona principle not having been excluded by the statute). 50.3.3 Delegability: local government arrangements. R v Birmingham City Council, ex p O [1983] 1 AC 578, 586E-F (Lord Brightman: “It is an inevitable feature of local government today that there must be delegation of the multifarious functions of a local authority among numerous committees, sub-committees and individual officers. No local authority could function efficiently otherwise”); R (Brommell) v Reading Borough Council [2018] EWHC 3529 (Admin) at §70 (lawful arrangements formally delegating specified functions to Head of Planning, the practice being for individual officers to decide minor matters); R v Southwark LBC, ex p Bannerman (1990) 2 Admin LR 381 (commonplace in both central and local government for decision to be taken in name of person who is not in meaningful sense the decision-maker). 50.3.4 Contracting-out of functions. James v Hertsmere Borough Council [2020] EWCA Civ 489 at §§5-6 (local authority having contracted out homelessness review function to a private-sector property management company, pursuant to the Deregulation and Contracting Out Act 1994), §36 (decision within scope of contracted-out authority); De-Winter Heald v Brent LBC [2009] EWCA Civ 930 [2010] 1 WLR 990 (lawful local authority contracting out of homelessness review function to external independent reviewer). 50.3.5 Delegation: permissible steps (illustrations). R (Williams) v Caerphilly County Borough Council [2020] EWCA Civ 296 [2020] PTSR 1130 at §50 (decision was responsibility of the executive and not the full council); R (TM (Kenya)) v SSHD [2019] EWCA Civ 784 [2019] 4 WLR 109 at §74 (lawful for Secretary of State to appoint contract monitor at contracted-out immigration removal centre, to make removal-from-association decisions); R (New London College Ltd) v SSHD [2013] UKSC 51 [2013] 1 WLR 2358 at §19 (no unlawful delegation of immigration powers to sponsoring institutions, because “leave to enter or remain continues to be the responsibility of immigration officers and the Secretary of State”); R (Raphael) v Highbury Corner Magistrates Court [2011] EWCA Civ 462 [2012] PTSR 427 at §52 (although original act of delegation preceded the relevant powers being in force, sufficient subsequent steps taken to delegate functions to subcommittees); R (Brynmawr Foundation School Governors) v Welsh Ministers [2011] EWHC 519 (Admin) (Welsh ministers entitled to delegate powers to consult about sixth-form education to local authority); DPP v Haw [2007] EWHC 1931 (Admin) [2008] 1 WLR 379 at §33 (implied power to delegate where responsibilities of statutory office mean delegation inevitable); R (Ealing LBC) v Audit Commission for England and Wales [2005] EWCA Civ 556 (2005) 8 CCLR 317 at §27 (Audit Commission entitled to adopt weighting scores by commission for social care inspection); R v SSHD, ex p Oladehinde [1991] 1 AC 254, 295G (permissible deployment of immigration inspectors); R v SSHD, ex p Doody [1994] 1 AC 531, 566F-567B (permissible tariff-delegation to junior minister); R v SSHD, ex p Harshad Jashbhai Patel (1995) 7 Admin LR 56, 62G-64G (statutory power to delegate); R v Managers of South Western Hospital, ex p M [1993] QB 683, 699C-G (consultation via the medium of an “agent” or “delegate”); R (Reckless) v Kent Police Authority [2010] EWCA Civ 1277 (permissible for decision-making body to rely on smaller group as selection panel, to gather information conduct interviews and make a recommendation). 50.3.6 Delegation: impermissible steps (illustrations). R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074 at §59 (on the objective interpretation of the scheme of delegation, criteria could not lawfully be determined by director of registration); R (DS) v SSHD [2019] EWHC 3046 (Admin) [2020] Imm AR 409 §§70, 72 (unlawful delegation and abdication of reconsideration function); R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §90 (segregation decision unlawfully delegated to prison governor or officer); R (Austin) v Chief Constable of Surrey [2010] EWHC 266 642

P50 Abdication/fetter

(Admin) (Chief Constable having no power to delegate decision to remove probationary constable); Vine v National Dock Labour Board [1957] AC 488, 506 (invalid delegation of employment termination); R v Tower Hamlets LBC, ex p Khalique (1994) 26 HLR 517, 525 (unlawful policy-making by unaccountable group of councillors and officers); R (Tamil Information Centre) v SSHD The Times 30 October 2002 (Authorisation an “impermissible delegation” of judgment statutorily required of Minister personally); R v Secretary of State for the Environment, ex p Hillingdon LBC [1986] 1 WLR 807 (invalid standing order delegating to committee chairman rather than committee); R v DPP, ex p Association of First Division Civil Servants (1988) 138 NLJ 158 (unlawful to delegate statutory screening of summary offences to non-qualified lawyers); R v Secretary of State for Education, ex p Prior [1994] ELR 231 (governors wrongly delegated disciplinary function to staff committee); R v Servite Houses and Wandsworth LBC, ex p Goldsmith (2000) 3 CCLR 325, 339H (non-delegability meaning housing association not the council’s agent in residential home arrangement, housing association not the council’s agent); R (Selter Associates Ltd) v Leicestershire County Council [2005] EWHC 2615 (Admin) (order not lawfully made under delegated powers because precondition not met); R (Friends of Hethel Ltd) v South Norfolk District Council [2010] EWCA Civ 894 [2011] 1 WLR 1216 (council’s constitution ultra vires insofar as requiring more than simple majority for a decision departing from planning officer’s advice). 50.3.7 Delegability: striking a balance. R (Ealing LBC) v Audit Commission for England and Wales [2005] EWCA Civ 556 (2005) 8 CCLR 317 at §27 (entitled to adopt, as its own, weighting scores of social care inspection body); R (Varma) v Duke of Kent [2004] EWHC 1705 (Admin) [2004] ELR 616 (University Visitor entitled to appoint a commissary to hold appeal hearing and give advice, provided that ultimate decision taken by Visitor); R v North Thames Regional Health Authority and Chelsea & Westminster NHS Trust, ex p L [1996] Med LR 385 (NHS Trust able “to make arrangements for elements or stages of the disciplinary process to be conducted by persons not holding office in the Trust; but it is the Trust alone as a public body and employer which has the power and duty to evaluate the findings of the inquiry and to decide what disciplinary step if any to take”); R v Hertsmere Borough Council, ex p Woolgar (1995) 27 HLR 703 (although impermissible to delegate decision-making duties, council entitled to delegate powers of investigation); R v Solihull Metropolitan Borough Council Housing Benefits Review Board, ex p Simpson (1994) 92 LGR 719, 727 (Regulations imposing a ‘personal obligation’ on Chairman to bring into existence his record of the decision, but not requiring him physically to make the written record); R v Chorley Borough Council, ex p Bound (1996) 28 HLR 791 (sufficient that letter containing reasons verbally approved); R v University of Cambridge, ex p Evans [1998] ELR 515, 518C-520G (asking whether the control preserved was close enough for the decision to be identifiable as that of the delegating authority); R v St Edmundsbury Council, ex p Walton (1999) 11 Admin LR 648 (not entitled to entrust important function to officer unless by formal delegation); R v Institute of Chartered Accountants of England and Wales, ex p Taher Nawaz 25 April 1997 unreported (insofar as bylaw containing excessive delegation of power, use of substantial severability and implied duty to act rationally to limit its effect). 50.3.8 Improper delegation and lack of prejudice. R v West Dorset District Council, ex p Gerrard (1995) 27 HLR 150, 161, 165 (sufficient that decision might be different if addressed by the council itself, rather than the housing association to whom it had unlawfully delegated its function); R v Oxfordshire County Council, ex p P [1996] ELR 153, 159E-H; {4.2} (materiality/lack of prejudice at common law). 50.3.9 Unreasonable delegation. R v Institute of Chartered Accountants of England and Wales, ex p Taher Nawaz 25 April 1997 unreported (power to delegate should be construed as constrained by a duty not to exercise it in an irrational manner); R v SSHD, ex p Doody [1994] 1 AC 531, 566F-G (leaving open whether “there is another constraint as regards the degree of delegation, in the shape of a possible exposure to attack on the ground of irrationality”). 50.3.10 Lack of delegation as ultra vires. R (S & B) v Independent Appeal Panel of Birmingham City Council [2006] EWHC 2369 (Admin) [2007] ELR 57 (decision ultra vires because made by department to whom power had not been delegated). 643

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50.3.11 Judicial review of choice of delegate. R (TM (Kenya)) v SSHD [2019] EWCA Civ 784 [2019] 4 WLR 109 at §§50, 67 (accepting that SSHD’s “selection of an official to act on his behalf … is, in principle, amenable to judicial review on the grounds” of “inconsistency with the language and intention of the relevant legislation, unfair process, irrationality or some other public law error”).

50.4 Fetter by inflexible policy.122 A public authority vested with discretionary powers must not operate a policy whose nature or application is over-rigid, so as automatically to determine the outcome, thus constituting a closed mind in relation to the approach to the power. 50.4.1 No-fettering principle in a nutshell. R (MAS Group Holdings Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2019] EWHC 158 (Admin) at §56 (Morris J: “A person upon whom a discretionary power has been conferred: (1) must exercise it on each occasion in the light of the circumstances at the time; (2) cannot fetter its exercise in the future by committing himself now as to the way it will be exercised in the future, nor by ruling out of consideration factors which may then be relevant; (3) may nevertheless develop and apply a policy as to the approach which he will adopt in the generality of cases, as long as it does not preclude departure from the policy or taking into account circumstances which are relevant to the particular case; if such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful”); R (AB) v SSHD [2018] EWCA Civ 383 [2018] Imm AR 1015 at §48 (Leggatt LJ: “The principle against fettering discretion requires a decision-maker to be willing to listen to and consider arguments for not acting in accordance with a rule or other established policy”); {50.1} (basic duty not to abdicate/fetter). 50.4.2 No-fettering: right to individualised examination under a lawful, current policy. R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §35 (Lord Dyson: “The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute”), applying In re Findlay [1985] AC 318, 338E-F; MO (Nigeria) v SSHD [2009] UKHL 25 [2009] 1 WLR 1230 (entitlement to be dealt with under the current immigration rules); {61.1.16} (procedural legitimate expectation: the right to have the case considered under current policy criteria). 50.4.3 No-fettering: policy can be expressed in unqualified terms. R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 [2016] 1 WLR 3923 at §16 (Laws and Treacy LJJ: “The exercise of public discretionary power requires the decision-maker to bring his mind to bear on every case; he cannot blindly follow a pre-existing policy without considering anything said to persuade him that the case in hand is an exception”), §17 (“But … a policy-maker (notably central government) is entitled to express his policy in unqualified terms. He is not required to spell out the legal fact that the application of the policy must allow for the possibility of exceptions”). 50.4.4 The legitimacy of adopting a proper policy. {6.2.2} (policy guidance promotes transparency/fairness/predictability); {57.4.8} (unreasonable policy). 50.4.5 Systemic challenge to policy/arrangement. {32.5} (systemic challenges). 50.4.6 Duty not to adopt an over-rigid policy. R (DJ) v Welsh Ministers [2019] EWCA Civ 1349 [2020] PTSR 466 at §68 (Simler LJ: “In general … a policy should not be framed in absolute terms that have the effect of debarring from consideration a person who falls outside the terms of the policy rule but within the statute itself”); R (Dickinson) v HMRC [2018] EWCA Civ 2798 [2019] 4 WLR 22 at §56 (the “policy must not preclude a proper

122The

equivalent paragraph in a previous edition was relied on in Linky Chance Ltd v Commissioner for Television and Entertainment Licensing [2006] HKCFI 248 at §40; In re HW [2016] NIQB 18 at §34 (Colton J).

644

P50 Abdication/fetter

exercise of the statutory discretion in each case”); R (Humber Landlords Association) v Hull City Council [2019] EWHC 332 (Admin) at §43 (whether “on the proper interpretation of a policy, the decision-maker has fettered itself”); R (MK) v SSHD [2017] EWHC 1365 (Admin) [2017] Imm AR 1425 at §41 (unlawful “inflexible procedural requirement”); R (Hardy) v Sandwell Metropolitan Borough Council [2015] EWHC 890 (Admin) [2015] PTSR 1292 at §43 (policy an unlawful fetter); R (Gurja) v CPS [2012] UKSC 52 [2013] 1 AC 484 at §37; R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §21 (“a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers”); R v SSHD, ex p Venables [1998] AC 407, 496G-497C (Lord Browne-Wilkinson: “When Parliament confers a discretionary power … the person on whom the power is conferred [is not precluded] from developing and applying a policy as to the approach which he will adopt in the generality of cases. … But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful”). 50.4.7 Rigid policy incompatible with statute. R (HA) v Ealing LBC [2015] EWHC 2375 (Admin) [2016] PTSR 16 at §23 (policy having rigidity incompatible with the Act). 50.4.8 No-fettering principle inapplicable to prerogative powers. R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697 at §62 (no-fettering principle not applicable to prerogative power, applying R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 [2006] 1 WLR 3213 at §191), discussed in R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §79 (fettering principle “usually applies where the source of a discretionary power is legislation”), §§79-83. 50.4.9 No-fettering principle applicable to common law powers. R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §79 (fettering principle “usually applies where the source of a discretionary power is legislation”), §§79-83 (position different if source of power is Royal Prerogative, discussing Sandiford [2014] 1 WLR 2697 and Elias [2006] 1 WLR 3213), §83 (principle applicable to common law powers: “[Where it] is the common law itself which is the source of the power … therefore the common law … sets out the limits of that power and the principles which govern its exercise … those principles include the principle against fettering of discretion”), §85 (in any event, principle applicable to residual common law power overlaid by statutory functions). 50.4.10 No-fettering: policy not automatically determining outcome. R v Hampshire County Council, ex p W [1994] ELR 460, 476B (Sedley J: “What is required by the law is that, without falling into arbitrariness decision-makers must remember that a policy is a means of securing a consistent approach to individual cases, each of which is likely to differ from others. Each case must be considered therefore in the light of the policy, but not so that the policy automatically determines the outcome”); R v Windsor Licensing Justices, ex p Hodes [1983] 1 WLR 685, 693E (“licensing justices must exercise their discretion in each case that comes before them and cannot properly determine an application simply by reference to a pre-ordained policy relating to applications of a particular class, without reference to the particular facts of the application before them”); R v Secretary of State for Education and Employment, ex p P [2000] ELR 300, 305A (“the Secretary of State applied his policy without considering whether the individual circumstances … justified a departure from it”); R (DJ) v Welsh Ministers [2019] EWCA Civ 1349 [2020] PTSR 466 at §87 (decision involved no fetter). 50.4.11 No-fettering: allowing the chance to persuade. Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §15 (Lord Reed: “decision-makers should not shut their ears to claims falling outside the policies they have adopted”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 415F-G (Lord Roskill, describing the 645

GROUNDS FOR JUDICIAL REVIEW

“legitimate expectation … of being allowed time to make representations especially where the aggrieved party is seeking to persuade an authority to depart from a lawfully established policy adopted in connection with the exercise of a particular power because of some suggested exceptional reasons justifying such a departure”); R v Secretary of State for the Environment, ex p Brent LBC [1982] QB 593, 643G-H (“[The Minister is] entitled to have well in his mind his policy. To this extent the reference to keeping an open mind does not mean an empty mind. His mind must be kept ‘ajar’”); R v Secretary of State for the Environment, ex p Oxford City Council 28 February 1998 unreported (entitled to decide that if any change to be made must be by way of change to the general policy rather than individual exception from it, provided that mind ‘ajar’ and willing to listen to representations in support of request for an exception); R (H) v Ashworth Hospital Authority [2001] EWHC Admin 872 [2002] 1 FCR 206 at §136 (no fetter because of willingness to listen to arguments “urging a change of policy”); {61.5} (basic right to be heard). 50.4.12 Consistency and non-rigidity: Sedley J’s conflicting imperatives. 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 public law: the first is that while a policy may be adopted for the exercise of a discretion, it must not be applied with a rigidity which excludes consideration of possible departure in individual cases …; the second is that a discretionary public law power must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it. … The line between individual consideration and inconsistency, slender enough in theory, can be imperceptible in practice”), 722j (policy formulated together with exceptions “a legitimate method of resolving the potential conflict between the two principles”), revisited in R v Lambeth LBC, ex p Njomo (1996) 28 HLR 737; 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”); R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2002] EWCA Civ 20 [2003] 1 FCR 266 at §54 (“It is one thing for a decision-maker to decide in advance that no applications of a particular kind are going to succeed. It is another to reach a reasoned decision which no doubt would – and arguably should – be reached again [on] similar facts. To call the latter a fettering of discretion is to damn the [defendant] if it attempts to achieve consistency from case to case and to damn it if it does not”). 50.4.13 No-fettering: lawful rigidity/inflexibility but lawful.123 R (Hayes) v CPS [2018] EWHC 327 (Admin) [2018] 1 WLR 4106 at §47 (CPS Victims’ Right to Review Guidance an “inflexible policy”), §49 (but not unlawful), §§52-53 (restriction necessary, proportionate and justified by reference to operational effectiveness); R (DJ) v Welsh Ministers [2019] EWCA Civ 1349 [2020] PTSR 466 at §68 (explaining that “[i]n general”, a policy must not be framed in absolute terms debarring some cases from consideration); R (ZS) v SSHD [2019] EWHC 75 (Admin) at §120 (not accepting the argument, in the present case, that “not always an unlawful fetter on a discretion to mean that circumstances will not be considered”); R (AB) v SSHD [2018] EWCA Civ 383 [2018] Imm AR 1015 at §45 (immigration rules rigid and not subject to the ‘non-fettering’ principle, but SSHD retains a residual discretion outside the rules); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §15 (“some policies may constitute more or less flexible guidance, but others may be formal and prescriptive”); R (Khajuria) v SSHD [2019] EWHC 1226 (Admin) at §§25, 28 (rigid immigration rule lawful); R (Patel) v General Medical Council [2013] EWCA Civ 327 [2013] 1 WLR 327 at §§32-33 (defendant entitled to set mandatory minimum criteria); R (Nicholds) v Security Industry Authority [2006] EWHC 1792 (Admin) [2007] 1 WLR 2067 at §§60-61 (fetter principle inapplicable where exercising a rule-making power or where allowing exceptions would conflict with legislative aim); R v SSHD, ex p Hepworth [1998] COD 146 (fixed criteria permissible for

123The

equivalent paragraph in a previous edition was relied on in Ealing LBC v Audit Commission [2005] EWHC 195 (Admin) at §36 (Walker J).

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P50 Abdication/fetter

“a clear system for incentives within the prison”); R (Ealing LBC) v Audit Commission for England and Wales [2005] EWCA Civ 556 (2005) 8 CCLR 317 at §17 (entitled to have absolute or binding rules); cf R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §315 (Lord Phillips, dissenting: “In a case such as this … a minister has to lay down a firm policy in order to ensure consistency of decision-making”), §21 (Lord Dyson, for the majority: policy over-rigid and unlawful). 50.4.14 Whether over-rigid policy: further illustrations. R (DS) v SSHD [2019] EWHC 3046 (Admin) [2020] Imm AR 409 §84 (policy rigid “on its face”); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §87 (“policy … an unlawful fetter” because “the policy as formulated imposes a blanket rule that, in taking … decisions, the coroner will not take into account the circumstances of any individual family where they have a religious basis”); R (Shutt) v Secretary of State for Justice [2012] EWHC 851 (Admin) at §25 (policy unlawful in excluding any element of discretion in deciding enhanced status to sex offenders assessed as unready for training programmes); R (Singh) v Cardiff City Council [2012] EWHC 1852 (Admin) at §77 (over-rigid policy leading “to the wrong question being asked”), §80 (and “can lead to the risk of arbitrary and unequal treatment”); R (British Beer and Pub Association) v Canterbury City Council [2005] EWHC 1318 (Admin) [2006] LGR 596 (overprescriptive liquor licensing policy); R (Stephenson) v Stockton-on-Tees Borough Council [2005] EWCA Civ 960 [2006] LGR 135 at §21 (applying family member rule without considering whether to exercise discretion to make an exception); Lindsay v Commissioners of Customs and Excise [2002] EWCA Civ 267 [2002] 1 WLR 1766 (blanket policy not permitting consideration of proportionality of penalty); R v Army Board of the Defence Council, ex p Anderson [1992] QB 169, 188E (“inflexible policy not to hold oral hearings”); R v Warwickshire County Council, ex p Collymore [1995] ELR 217 (on facts, operation of policy shown to be inflexible); R v Nottingham City Council, ex p Howitt [1999] COD 530 (inflexibility not shown on the facts); R v North Yorkshire County Council, ex p Hargreaves (No 2) (1998) 1 CCLR 331 (policy to pay only additional holiday costs an impermissible fetter); R v Westminster City Council, ex p Hussain (1999) 31 HLR 645 (policy that persons in claimant’s position suspended for two years from receiving further housing offer an unreasonable fetter). 50.4.15 No-fettering: policy application rigid in practice. R (MP) v Secretary of State for Justice [2012] EWHC 214 (Admin) at §186 (Lang J, explaining that, on the evidence, “an inflexible policy … was routinely applied, which did not involve consideration of the merits of individual cases and did not permit of any exceptions”); R v Warwickshire County Council, ex p Collymore [1995] ELR 217, 223D-E (looking at statistics so as to conclude that policy in fact implemented inflexibly), 227B-H; R (Pate) v SSHD [2002] EWHC 1018 (Admin) at §34 (Turner J, distinguishing “between the existence of a lawful policy and the question whether such policy has been lawfully implemented”), §21; R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977, 993H (“the stance of the Authority, coupled with the near uniformity of its reasons for rejecting each of the [claimants’] requests for funding was not a genuine application of a policy subject to individually determined exceptions”); R v Lambeth LBC, ex p Njomo (1996) 28 HLR 737 (policy rigidly applied in the present case, because stated exceptions treated as exhaustive); R v Southwark LBC, ex p Melak (1997) 29 HLR 223 (policy lawful but too rigidly applied); R v North Derbyshire Health Authority, ex p Fisher (1998) 10 Admin LR 27, 47A-D (rejecting defendant authority’s unsubstantiated assertion that it operated special cases criteria); R v London Borough of Bexley, ex p Jones [1995] ELR 42, 55 (defendants “effectually disabled themselves from considering individual cases”; “there has been no convincing evidence that at any material time they had an exceptions procedure worth the name. There is no indication that there was a genuine willingness to consider individual cases”); R (Foley) v SSHD [2019] EWHC 488 (Admin) at §29 (fact that no positive decisions within a particular period does not mean blanket policy). 50.4.16 No-fettering: policy apparently rigid but flexibility in practice? R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §§46-48 (in addressing lawfulness of policy, focus on rigidity as stated on face of 647

GROUNDS FOR JUDICIAL REVIEW

policy); R (Adelana) v Governor of Downview Prison [2008] EWHC 2612 (Admin) §§47, 61 (prisoner release policy over-rigid but decision lawful because of consideration as a matter of discretion outside the policy); R v SSHD, ex p Hindley [2001] 1 AC 410, 417D-E (accepting assurances that Home Secretary prepared to reconsider life tariffs even absent the “exceptional progress” threshold referred to in the stated policy). 50.4.17 No-fettering: policy impermissible despite (room for) exceptions. R v SSHD, ex p Simms [2000] 2 AC 115 (‘blanket’ policy held to be unlawful notwithstanding some room for exceptions in “wholly exceptional circumstances”), 124G; R (Sacupima) v Newham LBC [2001] 1 WLR 563 (housing policy providing for exceptions which were insufficiently flexible to permit all relevant matters to be addressed); R v Immigration Officer, ex p Quaquah [2000] INLR 196, 205C (SSHD not entitled to operate “presumption” against the grant of exceptional leave to remain, but obliged to consider each case on its intrinsic merits); R v Lambeth LBC, ex p Njomo (1996) 28 HLR 737, 744-745 (although policy with built-in exceptions not unlawful, applied too rigidly because exceptions treated as exhaustive); R v SSHD, ex p Hindley [2001] 1 AC 410, 417A-E (not sufficient that policy allowed reconsideration where “exceptional progress”; Court requiring assurances that Home Secretary prepared to reconsider generally); R (P and Q) v SSHD [2001] EWCA Civ 1151 [2001] 1 WLR 2002 at §§100-101 (policy of separating incarcerated mothers from their children after 18 months needing “greater flexibility” than limited exceptions of “a few weeks”).

648

P51 Insufficient inquiry. A public authority must sufficiently acquaint itself with relevant information, which must be fairly presented and properly addressed. 51.1 Duty of sufficient inquiry 51.2 Whether material fairly presented/properly addressed

51.1 Duty of sufficient inquiry.124 A public authority has a basic duty to take reasonable steps to acquaint itself with relevant material. What steps are ‘reasonable’ allows latitude for appreciation and judgment. 51.1.1 The Tameside duty of sufficient inquiry. R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §58 (describing “the duty … which falls upon a decision-maker to ‘take reasonable steps to acquaint himself with the relevant information, in order to enable him to answer the question which he has to answer”), §145 (duty breached here); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B (Lord Diplock: “the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”); R (Pharmaceutical Services Negotiating Committee) v Secretary of State for Health [2018] EWCA Civ 1925 [2019] PTSR 885 at §55 (the “duty of sufficient inquiry”); R (Law Society) v Legal Services Commission [2010] EWHC 2550 (Admin) at §109 (defendant “under a duty to inform itself of the information relevant to the decision”); R (RP) v Brent LBC [2011] EWHC 3251 (Admin) at §239 (Stadlen J, describing the Tameside duty as “a requirement of general application to all relevant decision makers and a necessary condition for a decision to be characterised as lawful”); R (DF) v Chief Constable of Norfolk Police [2002] EWHC 1738 (Admin) at §45 (“a decision-maker has an obligation to equip himself with the information necessary to take an informed decision”); R v Lincolnshire County Council and Wealden District Council, ex p Atkinson, Wales and Stratford (1996) 8 Admin LR 529, 543C (referring to the Tameside duty as an “elementary duty”); R v Camden LBC, ex p H [1996] ELR 360 (duty to make sufficient inquiries; specifically, having decided to resolve certain factual issues, duty to carry out investigations in that regard in a thorough and balanced way); R v Wolverhampton Municipal Borough Council, ex p Dunne (1997) 29 HLR 745 (duty to have regard to certain relevant considerations giving rise to further duty to conduct appropriate inquiries); R v SSHD, ex p Iyadurai [1998] Imm AR 470, 475 (Lord Woolf MR, asking: “whether the Secretary of State has (i) taken adequate steps to inform himself of the position … (ii) properly considered the information which is available to him and (iii) come to an opinion which is consistent with that information, recognising that it is his responsibility to evaluate the material which is available to him”); {49.4.5} (whether sufficiency of evidence). 51.1.2 Duty of sufficient inquiry: an aspect of procedural fairness. R (ASK) v SSHD [2019] EWCA Civ 1239 at §§63-64 (Hickinbottom LJ, discussing: “The Common Law Duty of Fairness”), §63 (“where a power is delegated to a public body, there is a presumption that Parliament intended it to be exercised fairly. The scope of that duty is context specific. In these appeals, two strands are particularly relevant”), §64 (“ First, a public body has a common law duty to take reasonable steps to acquaint itself with material relevant to any decision it makes – and then properly to consider that information, with the other relevant information available to it – to enable it to make a properly informed decision. The sufficiency of the

124The

equivalent paragraph in a previous edition was relied on in Kanssen v SSEFRA [2005] EWHC 1024 (Admin) at §35 (Owen J); In re CPNI [2011] NIQB 132 at §42 (Treacy J); R (Pharmaceutical Services NC) v SSH [2017] EWHC 1147 (Admin) [2017] PTSR 1451 at §42 (Collins J).

GROUNDS FOR JUDICIAL REVIEW

inquiry is essentially a matter for the decision-maker; but the context may require particular steps to be taken”). 51.1.3 Duty of sufficient inquiry: an aspect of reasonableness. R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §58 (Sir Terence Etherton MR, Irwin and Singh LJJ, describing the Tameside duty as “a specific application of the doctrine of irrationality”); R (Hayes) v Wychavon District Council [2014] EWHC 1987 (Admin) [2019] PTSR 1163 at §31 (“the question to be asked is whether the inquiry made by the planning authority was so inadequate that no reasonable planning authority could suppose that it had sufficient material available upon which to make its decision”); {13.1} (‘soft’ review: reasonableness standard). 51.1.4 Sufficiency of inquiry and decision-maker’s judgment: the Plantagenet principles. R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §70 (Underhill, Hickinbottom and Singh LJJ, describing the “relevant principles” as follows: “First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken. … Thirdly, the court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should only intervene if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further enquiries if no reasonable authority possessed of that material could suppose that the enquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies …, [springs] from the … duty to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion …, the more important it must be that he has all the relevant material to enable him to properly exercise it”, citing Plantagenet [2014] EWHC 1662 (QB) per Hallett LJ, Ouseley and HaddonCave LJJ at §§99-100), applied in R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §59, and in R (Somerset County Council) v Secretary of State for Education [2020] EWHC 1675 (Admin) at §119. 51.1.5 Sufficiency of inquiry and decision-maker’s judgment: other cases. R (Pharmaceutical Services Negotiating Committee) v Secretary of State for Health [2018] EWCA Civ 1925 [2019] PTSR 885 at §55 (Irwin, Hickinbottom and Beatson LJJ: “The duty of sufficient inquiry is subject to a Wednesbury challenge only … ‘it is for the decisionmaker and not the court to conclude what is relevant’ and ‘to decide upon the manner and intensity of the inquiry to be undertaken’”); R (Terra Services Ltd) v National Crime Agency [2020] EWHC 1640 (Admin) at §67 (Tameside duty “arising as an adjunct of the Wednesbury principle”); R (Jayes) v Flintshire County Council [2018] EWCA Civ 1089 [2018] ELR 416, cited in R (Stephenson) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 519 (Admin) [2019] PTSR 2209 at §34; R (Hackney LBC) v Secretary of State for Housing and Local Government [2019] EWHC 1438 (Admin) at §66; R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871 at §83; {55.1.3} (duty of sufficient inquiry: an aspect of reasonableness). 51.1.6 Statutory duty of inquiry/impact assessment. R (Hillingdon LBC) v Secretary of State for Transport [2020] EWCA Civ 1005 at §10 (on the correct interpretation of the legislation, Secretary of State wrong to overturn local authority’s decision that impact assessment needed to be performed by it and could not be conducted by the developer); R (Roxlena Ltd) v Cumbria County Council [2019] EWCA Civ 1639 at §53 (statutory duty of investigation in the context of footpath order); R (RSPB) v Natural England [2019] EWHC 585 (Admin) at §45 (Habitats Directive impact assessment duty); R (Squire) v Shropshire Council [2019] EWCA Civ 888 [2020] 1 CMLR 2 at §69 (legally inadequate statutorily required environmental impact assessment); R (AD) v Hackney LBC [2019] EWHC 943 (Admin) [2019] PTSR 1947 at §§80-84 (discussing Tameside duty of sufficient inquiry in the context of public sector equality duty); {55.2.6} (public sector equality duty). 650

P51 Insufficient inquiry

51.1.7 Situations where no duty of independent inquiry. 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”); R (Anglian Water Services Ltd) v Environment Agency [2003] EWHC 1506 (Admin) [2004] Env LR 287 at §36 (Environment Agency’s “role under the statutory scheme was to resolve the dispute that had arisen. … It was fully entitled to consider the material submitted on both sides … and to arrive at the decision”); R v Criminal Injuries Compensation Board, ex p Milton [1996] COD 264 (CICB under no duty to make inquiries or seek evidence of its own initiative); R v Sedgemoor District Council, ex p McCarthy (1996) 28 HLR 607 (no duty to inquire into matter where no reasonable grounds for believing it to be a live issue); {61.7.9} (rights to proactivity/assistance by the decision-maker). 51.1.8 Duty of sufficient inquiry: consistency and past decisions. R (Irving) v Mid Sussex District Council [2019] EWHC 3406 (Admin) at §75 (Lang J: “a local planning authority ought to have regard to its previous similar decisions as material considerations, in the interests of consistency. … A local planning authority should take reasonable steps to acquaint itself with its previous similar decisions, even if they are not brought to its attention by applicants or objectors”); {55.1.18} (consistency as an administrative law principle). 51.1.9 Duty of sufficient inquiry: eliciting views. R (M) v Hammersmith Magistrates’ Court [2017] EWHC 1359 (Admin) [2017] ACD 86 at §§14, 18 (where magistrates at committal for sentence had insufficient evidence regarding the claimant’s age, they should have adjourned for arrangements for an age assessment to be made); R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §27 (Laws LJ: “the decision-maker’s duty to have regard to relevant considerations may require him to take into account the affected person’s views about the subject-matter”); R v Secretary of State for Education, ex p London Borough of Southwark [1995] ELR 308, 323C (Laws J: “the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies”); R v Camden LBC, ex p Adair (1997) 29 HLR 236 (duty to make inquiries of another appropriate department); R (Hillingdon LBC) v Secretary of State for Transport [2020] EWCA Civ 1005 at §§10, 70 (incumbent on developer to provide the relevant information, and local authority having no duty to process request for consent until necessary information provided); cf R (Anglian Water Services Ltd) v Environment Agency [2003] EWHC 1506 (Admin) [2004] Env LR 287 at §36 (Environment Agency “were not under any obligation to seek independent advice”); {65.1.12} (error/misdirection by consultee); {62.3.6} (legally adequate consultation: sufficient explanation/notification); {62.2.7} (consultation trigger: duty of sufficient inquiry). 51.1.10 Breach of duty of sufficient inquiry: illustrations. R (Somerset County Council) v Secretary of State for Education [2020] EWHC 1675 (Admin) at §§80, 123 (Fraser J, identifying an “insufficiency of inquiry into … impact”); R (Day) v Shropshire Council [2019] EWHC 3539 (Admin) at §54 (“the planning officer failed to take reasonable steps to ascertain the extent of the recreation ground”); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §159 (judicial review granted because “the Parole Board ought to have carried out, or have instigated the carrying out of, further inquiry”), §162 (whether or not “obviously material”, “this evidence should have been obtained”); Jamaicans for Justice v Police Service Commission [2019] UKPC 12 at §28 (“the proper discharge of the statutory functions” required the PSC to ensure an independent investigation into alleged involvement in unlawful killings by police officer, before accepting a recommendation for promotion, and “irrational” not to do so); R (Law Centres Federation Ltd) v Lord Chancellor [2018] EWHC 1588 (Admin) at §§80, 93 (“this decision was one that no reasonable decision-maker could reach on the state of the evidence that the LAA had gathered and in the absence of further inquiry”); R (CP (Vietnam) v SSHD [2018] EWHC 2122 (Admin [2018] ACD 114 at §67 (competent authority could not “rationally have concluded that they had sufficient information to come to a (negative) conclusive grounds decision”); R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin) [2015] PTSR 1045 at §61 (magistrates making costs order “erred in law by failing to make further inquiries”); R (B) v Worcestershire County Council [2009] EWHC 2915 (Admin) (2010) 13 CCLR 13 at §95 (“reasonable steps were not taken 651

GROUNDS FOR JUDICIAL REVIEW

to provide the decision maker with the relevant information to enable the decision maker to make a rational decision”), §97; R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §90 (unfairness because questions asked not enabling the interviewer “to have a sufficiently full picture for a fair decision to be made”); R v SSHD, ex p Venables [1998] AC 407 (CA), 453F (“essential” to be “fully informed of all the material facts and circumstances”), 455G (“did not adequately inform himself of the full facts and circumstances of the case”), 456E-F (“not clear … that he took any steps to inform himself of the relevant facts”), 466G (“The wider the discretion conferred on the Secretary of State the more important it must be that he has all relevant material to enable him properly to exercise it”); Naraynsingh v Commissioner of Police [2004] UKPC 20 at §21 (“substantially more in the way of investigation was required than was undertaken here”), §23 (“a fair procedure demanded that further inquiries be made”). 51.1.11 No breach of duty of sufficient inquiry: illustrations. R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §72 (no obligation to make enquiries of HMRC); Makhlouf v SSHD [2016] UKSC 59 [2017] 3 All ER 1 at §41 (“sufficient material on which to make a proper judgment” as to Art 8 rights of deportee and children); R (National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154 at §62 (Minister knew “enough to enable him to make an informed judgment”); R v Solihull Borough Council, ex p W [1997] ELR 489, 499A-C (authorities’ decisions to exclude pupil not flawed for failure to take reasonable steps to acquaint themselves with relevant information); R v SSHD, ex p Elshani [1999] INLR 265, 273C-E (ongoing appraisal did not mean failure of sufficient inquiry); R (Hossack) v Kettering Borough Council [2003] EWHC 1929 (Admin) at §47 (“the extent of the investigation carried out … was … sufficient to enable the council reasonably to proceed to a decision”).

51.2 Whether material fairly presented/properly addressed.125 Public authority decision-makers, and those officers and staff who assist them, need to ensure that relevant material (a) is fairly and adequately presented to the decision-maker and (b) is properly considered and addressed by the decision-maker. 51.2.1 Material presented to decision-maker was unfair/misleading. R (Liverpool Open and Green Spaces Community Interest Co) v Liverpool City Council [2020] EWCA Civ 861 at §74-77 (report failed to tell committee of conservation team’s strong conservation objections); R (JP) v NHS Croydon Clinical Commissioning Group [2020] EWHC 1470 (Admin) at §§15, 22, 25-26 (judicial review granted because assessor presented information to panel which did not “fairly or accurately reflect” the opinion which had been given by a paediatric nurse specialist, which was thus “completely misrepresented, and the decision … taken on a wholly false basis”, so that “the panel made its decision by failing to take into account accurate and relevant information that was available”); R (Caetano) v Metropolitan Police Commissioner [2013] EWHC 375 (Admin) [2013] ACD 60 at §41 (caution based on consideration of the public interest “on a flawed understanding of the position”), §12 (summary of interview “was neither complete nor accurate”); R (Hindawi) v Secretary of State for Justice [2011] EWHC 830 (QB) at §73 (Thomas LJ: “in the circumstances of this case, fairness required that [the Secretary of State’s] officials put the issues to him in a balanced way so he could arrive at a decision that had a rational basis”), §80 (“when the Secretary of State came to make [the] decision …, the materials had to be presented to him fairly”), §111 (here, an “unfair process that did not put the Secretary of State in a position to make a rational decision”); R (Horeau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) [2019] 1 WLR 4105 (DC) at §282 (position not “unfairly or inaccurately presented to ministers”) (CA is [2020] EWCA Civ 1010); R v Camden LBC, ex p Cran (1996) 94 LGR 8, 73 (“affected citizens and representative organisations are entitled to expect objectivity in those whose duty it is to convey to decision makers what they have suggested”); James D’Avila v Tom Sawyer 22 March 1996 unreported (exaggerated and misleading report 125The

equivalent paragraph in a previous edition was relied on in R (M) v Nottinghamshire Healthcare NHS Trust [2002] EWHC 1400 (Admin) [2003] MHLR 88 at §49 (Burton J); Re Duggan [2012] NIQB 78 at §42 (Treacy J).

652

P51 Insufficient inquiry

preventing decision-maker from being able to give the matter fair and proper consideration); R v Advertising Standards Authority Ltd, ex p the Insurance Service Plc (1990) 2 Admin LR 77, 92B-93A (facts not accurately placed before decision-making committee by secretariat which had investigated complaint); R v Bacon’s City Technology College, ex p W [1998] ELR 488, 498G (“the summary report put before the governors was one-sided”); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 (material on which licence refusal direction made not giving an accurate and fair picture of the claimant’s compliance record). 51.2.2 Material put before the decision-maker was inadequate. R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §159 (judicial review granted because parole board should have “carried out, or have instigated the carrying out of, further inquiry”), §93 (there being an “absence of information which the Secretary of State’s representatives could have put before the Board”); R (Kohler) v Mayor’s Office for Policing and Crime [2018] EWHC 1881 (Admin) [2018] ACD 102 at §68 (summary of consultation responses failed to refer to a proposal which had been put forward); R (Chief Executive of the Independent Police Complaints Commission) v Independent Police Complaints Commission [2016] EWHC 2993 (Admin) [2017] ACD 7 at §37 (“the report did not adequately set out the material evidence”); R (JM) v Isle of Wight Council [2011] EWHC 2911 (Admin) (2012) 15 CCLR 167 at §138 (“the reports to Cabinet and Council did not provide Members with sufficient information to discharge their duty”); cf R v Independent Television Commission, ex p TSW Broadcasting Ltd [1994] 2 LRC 414 (HL expressing caution as to impugning a decision by reference to criticising staff report). 51.2.3 Whether planning officers’ report to committee deficient/significantly misleading. {65.1.10} 51.2.4 Decision-maker failed to grapple with the material/issues. R (L) v Director of Public Prosecutions [2020] EWHC 1815 (Admin) at §36 (Hickinbottom LJ: “there is … no evidence that the decision maker grappled with the assessment of the sufficiency of the available evidence against the elements of the offence”); R (Somerset County Council) v Secretary of State for Education [2020] EWHC 1675 (Admin) at §109 (judicial review granted where “wholesale failure to grapple with [an] issue”); R (PL) v Parole Board [2019] EWHC 3306 (Admin) at §25 (“the Board erred in law in failing to grapple with the relevant evidence”); Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin) at §89 (decision flawed if decision-maker “failed to grapple” with relevant issue, referring to Gladman [2017] JPL 402 at §35); R (Kelly) v Financial Ombudsman Service [2017] EWHC 3581 [2018] CTLC 107 at §37 (Philip Mott QC: “it is impossible to say that this decision engages with the complaint as it really was”); R (A) v Enfield LBC [2016] EWHC 567 (Admin) [2016] HLR 33 at §35 (Hayden J: “clear that the defendants did not truly analyse C’s case at all within the framework of [the statutory] provisions”); {64.3.14} (duty to grapple: adequate reasons requiring a systematic/logical analysis); R (Naidu) v SSHD [2016] EWCA Civ 156 [2016] 1 WLR 3775 (unreasonable to repeat the previous refusal of a visa application without recognising that different evidence was now relied on). 51.2.5 Decision-maker failed to give conscientious consideration. R (Ikram) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1869 (Admin) at §75 (decision made “without adequately assessing or determining the contentious planning issues”); R (WEN) v SSHD [2019] EWHC 2104 (Admin) at §47(iii) (in a trafficking context, “if an adverse decision is based on an assessment of credibility the Competent Authority must demonstrate that a careful and conscientious analysis of the relevant factors has been undertaken”); R (Mackenzie) v Secretary of State for Justice [2009] EWCA Civ 669 at §34 (judicial review granted because decision-maker “failed to engage with the case being put forward … in a significant respect”); R v SSHD, ex p Iyadurai [1998] Imm AR 470, 475 (Lord Woolf MR, asking whether SSHD had “properly considered the information which is available to him and … come to an opinion which is consistent with that information, recognising that it is his responsibility to evaluate the material which is available to him”); 653

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R v Doncaster Metropolitan Borough Council, ex p Nortrop (1996) 28 HLR 862, 874 (referring to the “duty to explore all the material evidence before it”); O’Reilly v Coventry Coroner [1996] COD 268 (unresolved documentary inconsistencies); R v Birmingham City Council, ex p Killigrew (2000) 3 CCLR 109, 117G-118F (“no proper analysis”, “no proper consideration”); R v Ealing LBC, ex p C (2000) 3 CCLR 122, 130G (“no analysis” of relevant problems); R v Lambeth LBC, ex p K (2000) 3 CCLR 141, 149H (“failure by the council to go through the logical and required process” required), 150D (insufficient “clarity of approach”); {62.3.7} (legally adequate consultation: conscientious consideration). 51.2.6 Decision-maker failed to give anxious scrutiny/rigorous scrutiny. {32.4.7} (public authority’s reviewable duty to apply anxious scrutiny). 51.2.7 Material considered by departmental official. {50.3.1} (officials act for Ministers: the Carltona principle); R (National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154 (Carltona not meaning information known to officials imputed to Minister, in a case where decision taken by Minister personally); R (Seabrook Warehousing Ltd) v HMRC [2010] EWCA Civ 140 [2010] STC 996 at §43 (sufficient if “Departmental staff carried out an evaluation, analysis and precis of the available material and drew to the attention of the Minister and the Commissioners ‘the salient facts which [gave] shape to the matter’”); {51.2.1} (material presented to decision-maker was unfair/misleading). 51.2.8 Adequacy of reasons. {64.3}

654

P52 Bad faith/improper motive.126 A public authority must act in good faith and without improper motive or purpose. 52.1 Bad faith 52.2 Improper motive

52.1 Bad faith.127 Good faith is an essential prerequisite of the proper and lawful discharge of functions by a public authority. Judicial review is available if the public authority has acted in bad faith. Bad faith is a strong accusation not lightly to be made, is difficult to prove, and is rarely encountered. There are always readily available alternative characterisations, such as: actual and apparent bias, improper motive, failing to promote the legislative purpose. 52.1.1 Good faith as a basic duty. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §123 (treating “good faith” as one of “the essential requirements laid down by the rule of law for [a statutory decision-making] process to be effective”); R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 [2016] 1 WLR 3923 at §22 (referring to “the basic tests of reason and good faith”); Board of Education v Rice [1911] AC 179, 182 (“they must act in good faith … for that is a duty lying upon everyone who decides anything”); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 563H (“good faith … is an indispensable element of the lawful exercise of … any … statutory discretion”); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229 (Lord Greene MR: “Bad faith, dishonesty – those of course, stand by themselves”); Smith v East Elloe Rural District Council [1956] AC 736, 762 (“bad faith stands in a class by itself”); Holgate-Mohammed v Duke [1984] AC 437, 443D (“The first of the Wednesbury principles is that the discretion must be exercised in good faith”); British Oxygen Co Ltd v Board of Trade [1971] AC 610, 624F-G (describing as the first of “two general grounds on which the exercise of an unqualified discretion can be attacked”: “It must not be exercised in bad faith”); Nakkuda Ali v Jayaratne [1951] AC 66, 77 (Lord Radcliffe: “he must not exercise the power in bad faith”). 52.1.2 Good faith applying to making delegated legislation/rules. McEldowney v Forde [1971] AC 632, 649E-F (describing the discretion to make “regulations for the preservation of peace and the maintenance of order”, as capable of interference “if the Minister is shown to have gone outside the four corners of the Act or has acted in bad faith”); Kruse v Johnson [1898] 2 QB 91, 99 {13.5.14}; Bugg v DPP [1993] QB 473, 500G (considering bad faith on part of maker of bylaws). 52.1.3 Good faith as part of ‘natural justice’. Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762, 784 (Harman J: “What then are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. I do not myself think that there really is anything more”), cited in Ceylon University v Fernando [1960] 1 WLR 223, 232. 52.1.4 Bad faith in action: illustrations. R v Derbyshire County Council, ex p Times Supplements Ltd (1991) 3 Admin LR 241, 253A (Watkins LJ: “[this] decision-making … can only in the circumstances have been activated in my view by bad faith or, in a word, vindictiveness. It was thus an abuse of power contrary to the public good”); Watkins v SSHD 126The

equivalent section in a previous edition was relied on in AG v Ririnui [2015] NZCA 160 at §78 (Harrison J). equivalent paragraph in a previous edition was relied on in Golden Arrow Bus Services (Pty) Ltd v City of Cape Town [2013] ZAWCHC 60 (South Africa Western Cape High Court) at §39 (Griesel J). 127The

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[2006] UKHL 17 [2006] 2 AC 395 (misfeasance claim failing, but context involving prison officers opening legally privileged correspondence in bad faith); Cannock Chase District Council v Kelly [1978] 1 WLR 1 (defendant to possession proceedings failing to particularise and prove that notice to quit served in bad faith); R (Birmingham and Solihull Taxi Association) v Birmingham International Airport [2009] EWHC 1913 (Admin) at §36 (no sound evidential base upon which finding of bad faith could be made). 52.1.5 Bad faith and resolving disputed facts. {17.3.18} 52.1.6 Related principles. {63.2} (actual bias); {52.2} (improper motive); {53.1.2} (duty to promote and not frustrate the legislative purpose: the Padfield principle).

52.2 Improper motive.128 The judicial review Court can intervene where the public authority’s action was motivated by some aim or purpose regarded by the law as illegitimate. This negative obligation (not to have an improper purpose) fits alongside the Padfield positive obligation (to promote the legislative purpose). 52.2.1 Improper/ulterior motive as a public law error. Elsick Development Co Ltd v Aberdeen City and Shire Strategic Development Planning Authority [2017] UKSC 66 [2017] PTSR 1413 at §44 (planning authorities cannot use planning obligations for an “ulterior purpose”); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2018] UKSC 3 [2018] 1 WLR 973 at §4 (judicial review claim that the impugned decision “had an improper ulterior motive”); R (NPower Direct Ltd) v Gas and Electricity Markets Authority [2018] EWHC 3576 (Admin) [2019] ACD 35 at §120 (no “disguised purpose” here); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 250B (Lord Scarman, describing Wheeler v Leicester City Council [1985] AC 1054 as “a striking illustration on its facts of circumstances in which the courts may intervene on the ground of abuse of power arising from an improper motive in its exercise”); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 864H-865B (Lord Templeman, referring to the following three cases as improper motive cases: Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997 (the fear of a “politically embarrassing” situation); Congreve v Home Office [1976] QB 629 (disapproval of lawful conduct); Laker Airways Ltd v Department of Trade [1977] QB 643 (“the ulterior motive of making it impossible … to pursue a course of which the Minister disapproved”)). 52.2.2 Improper motive: punishing one who has done no wrong. Wheeler v Leicester City Council [1985] AC 1054, 1081C (“this use by the council of its statutory powers was a misuse of power. The council could not properly seek to use its statutory powers of management or any other statutory powers for the purposes of punishing the club when the club had done no wrong”); Congreve v Home Office [1976] QB 629, 651A-C (“when the licensee has done nothing wrong at all, I do not think the Minister can lawfully revoke the licence, at any rate, not without offering him his money back, and not even then except for good cause”); R v Secretary of State for Trade, ex p Perestrello [1981] QB 19, 35F-G (use of power, “not for the purposes for which the power was given, but, for example, to punish someone”); R v Lewisham Borough Council, ex p Shell [1988] 1 All ER 938, 952d-e (pressure on Shell to withdraw from South Africa, when Shell not “acting in any way unlawfully”); R v Greenwich LBC, ex p Lovelace [1991] 1 WLR 506 (no evidence that councillors removed from committee as punishment for opposition); R v Secretary of State for the Environment, ex p Haringey LBC (1994) 92 LGR 538 (Secretary of State entitled to make direction barring council from collecting refuse because it had distorted competition between tenderers; intention to “make an example” of the council not an improper motive). 52.2.3 Whether ‘political’ motives improper. Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 (misuse of power to designate council houses for sale to pursue electoral advantage), at 128The equivalent paragraph in a previous edition was relied on in Chief Executive of the Hong Kong Special Administrative

Region v President of the Legislative Council [2017] HKCFI 1234 at §237 (Hon Au J).

656

P52 Bad faith/improper motive

§19(5) (Lord Bingham, discussing the principle that “powers conferred on a local authority may not lawfully be exercised to promote the electoral advantage of a political party”); Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997, 1058F-G (the “reasons for refusing an investigation … must not be based on political considerations which as Farwell LJ said in R v Board of Education [1910] 2 KB 165, 181 are pre-eminently extraneous”), 1061F (“This fear of parliamentary trouble … if an inquiry were ordered and its possible results is alone sufficient to vitiate the Minister’s decision which … can never validly turn on purely political considerations”), 1032E (“to refuse to refer a complaint because, if he did so, he might later find himself in an embarrassing situation, … would plainly be a bad reason”); R v London Borough of Ealing, ex p Times Newspapers Ltd [1987] IRLR 129 (local authorities’ decision to ban Murdoch newspapers from public libraries ultra vires and an abuse of power, being inspired by political views); R v SSHD, ex p Launder [1997] 1 WLR 839, 868B-D (suggesting decision would have been open to challenge if “based wholly on political policy considerations”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 398C-D (“a political purpose can taint a decision with impropriety”); R v Southwark LBC, ex p Udu (1996) 8 Admin LR 25 (council a political body, entitled to reach a political decision not to give grants to students at private institutions); R v Leeds City Council, ex p Cobleigh [1997] COD 69 (political considerations do not necessarily flaw a local authority’s decisions); R v Local Commissioner for Administration in North and North East England, ex p Liverpool City Council [2001] 1 All ER 462 at §36 (party political influence decisive in consideration of planning application, meaning that immaterial consideration taken into account). 52.2.4 Improper motive/purpose: further illustrations. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §181 (reasons not shown to be a sham); R (Metro Construction Ltd) v Barnet LBC [2009] EWHC 2956 (Admin) at §39 (designation of conservation area unlawful, as emails showed decision was driven solely by protection of building not suitability of site for designation, so that “the purpose of the designation was improper”); R v Walsall Justices, ex p W [1990] 1 QB 253, 260E-H (improper to adjourn case because of imminent change in the law which magistrates regarding as more just); R v Hendon Justices, ex p DPP [1994] QB 167, 174E-F (improper to dismiss information because of irritation at CPS inefficiency); Board of Education v Rice [1911] AC 179, 186 (Earl of Halsbury: “hostility to the Church schools”); Municipal Council of Sydney v Campbell [1925] AC 339 (land acquisition for resale at a profit an improper use of statutory power to acquire land for improving the city); R v Hillingdon LBC, ex p Royco Homes Ltd [1974] QB 720 (ulterior object for planning condition requiring properties to be let to persons on the council’s waiting list); R v Wellingborough Magistrates Court, ex p Francois [1994] COD 462 (impropriety where prosecutor in a hurry to finish the case); In re Arrows Ltd (No 4) [1995] 2 AC 75, 107E (“it was an improper exercise of … discretion … to seek to prevent the use by the Serious Fraud Office of those transcripts in the criminal proceedings”); R v Maidstone Crown Court, ex p Hollstein [1995] 3 All ER 503 and R v Maidstone Crown Court, ex p Clark [1995] 1 WLR 831, 836E (impermissible to use arraignment to foil right to bail); R v National Rivers Authority, ex p Haughey (1996) 8 Admin LR 567 (NRA not entitled to use its licensing powers to enforce its side of an argument); R v SSHD, ex p Adams [1995] All ER (EC) 177 (where SSHD entitled to withhold reasons need exceptional case to intervene on improper motive grounds); R v Inner London Crown Court, ex p B [1996] COD 17 (sentencing judge’s decision to lift restriction on naming of a young offender: general deterrence a permissible objective); St George’s Healthcare NHS Trust v S [1999] Fam 26 (improper to use Mental Health Act to protect the unborn child from mother’s exercise of right to refuse medical intervention); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 870D (“would have been inspired by an improper motive and would have constituted an abuse of power” to have “deliberately waited from 1979 until 1982 in order that the claims of the appellant might be time barred”). 52.2.5 ‘Improper purpose’ and the Padfield principle. {53.1.2} (duty to promote and not frustrate the legislative purpose: the Padfield principle); R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16 657

GROUNDS FOR JUDICIAL REVIEW

[2020] 1 WLR 1774 at §46 (Lady Arden and Lord Sales, dissenting, describing Padfield as a case of “exercise of a power … for improper purposes”); School Facility Management Ltd v Governing Body of Christ the King College [2020] EWHC 1118 (Comm) at §293 (Padfield as “improper purpose”); R (Merida Oil Traders Ltd) v Central Criminal Court [2017] EWHC 747 (Admin) [2017] 1 WLR 3680 at §66 (power used for a purpose “clearly contrary to the intention and scheme of the legislation”); R (MM) v SSHD [2015] EWHC 3513 (Admin) [2016] 1 WLR 2858 at §§32-34 (beyond the scope and purpose of power, to refuse naturalisation to those meeting eligibility requirements for a “deterrent purpose” directed at others); R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437 [2012] QB 394 at §179 (Arden LJ, referring to the Padfield principle as concerning discretion exercised “for an improper purpose”); R (AA (Nigeria)) v SSHD [2010] EWHC 2265 (Admin) at §40 (use of immigration detention to prevent suicide “however laudable, is an improper purpose”); R (Miranda) v SSHD [2016] EWCA Civ 6 [2016] 1 WLR 1505 at §58 (asking whether “lawful purpose” within true meaning of statute); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 865B (Lord Templeman, describing improper motive cases as cases where “judicial review was granted because the Ministers acted ‘unfairly’ when they abused their powers by exercising or declining to exercise those powers in order to achieve objectives which were not the objectives for which the powers had been conferred”); R v Maidstone Crown Court, ex p Clark [1995] 1 WLR 831 (arraignment to defeat the statutory protections of the right to bail not a proper use of the power), 836D-G; Stewart v Perth and Kinross Council [2004] UKHL 16 at §28 (Lord Hope: “the discretion which is vested in the licensing authority is not unlimited. The authority is not at liberty to use it for an ulterior object, however desirable that object may seem to it to be in the public interest”); R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 [2011] 1 AC 437 at §38 (compulsory purchase powers not exercisable for “any collateral object”, meaning purposes except those for which power conferred); {53.1.3} (Padfield principle as an aspect of illegality/ultra vires). 52.2.6 Mixed purposes/mixed motives: true and dominant purpose.129 R (Miranda) v SSHD [2016] EWCA Civ 6 [2016] 1 WLR 1505 at §30 (court identifies “the true and dominant purpose”); R (Peters) v Haringey LBC [2018] EWHC 192 (Admin) [2018] PTSR 1359 at §136 (“dominant purpose test”); R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin) [2019] ACD 148 at §21 (“dominant purpose” test applicable to test legal legitimacy of police application to Crown Court for a production order); R v Crown Court at Southwark, ex p Bowles [1998] AC 641, 651F-G (statutory purpose for use of power must be true and dominant purpose); R (Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000 [2005] LGR 105 at §44 (traffic control directions unlawful where statutorily-prescribed harbour-management purpose was their “collateral consequence” but not “one of their main purposes”); Porter v Magill (1998) 96 LGR 157 (DC), 167d-f (where several purposes, sufficient that “true and dominant purpose” is lawful, even though incidental unlawful purpose; where two purposes, decision vitiated if ultra vires purpose “a major purpose”), also HL at [2001] UKHL 67 [2002] 2 AC 357 (drawing a distinction between an exercise of power for a legitimate purpose, in the hope of electoral advantage, and action to promote electoral advantage). 52.2.7 Materiality: whether flawed purpose vitiates the decision. R v Inner London Education Authority, ex p Westminster City Council [1986] 1 WLR 28, 49H (sufficient that improper purpose “materially influenced” the relevant decision); R v Broadcasting Complaints Commission, ex p Owen [1985] QB 1153, 1176G-1177C (mixed purposes); R v Lewisham Borough Council, ex p Shell [1988] 1 All ER 938, 952f (impermissible motive “inextricably mixed up with [permissible] … and this extraneous and impermissible purpose has the effect of vitiating the decision as a whole”); {4.2.4} (materiality and mixed reasons/ separable reasons).

129The equivalent paragraph in a previous edition was relied on in R (Staff Side of the Police Negotiating Board) v Secretary

of State for Work and Pensions [2011] EWHC 3175 (Admin) at §135 (Elias LJ).

658

P53 Frustrating the legislative purpose. A public authority must act so as to promote, and not to frustrate, the purposes for which statutory powers have been conferred on it. 53.1 Duty to promote the legislative purpose

53.1 Duty to promote the legislative purpose.130 Statutes are interpreted by reference to their purpose, and statutory powers must be exercised for the purpose for which they were conferred. Under the Padfield principle, public authorities are required to promote, and not to frustrate, the legislative purpose. 53.1.1 Power must be exercised for purposes for which conferred. {39.1.5} (power is held on trust: to be exercised for the purpose for which conferred); {29.2} (legislative purpose and judicial review); {29.1.2} (purposive interpretation). 53.1.2 Duty to promote and not frustrate the legislative purpose: the Padfield principle. R (Britcits) v SSHD [2017] EWCA Civ 368 [2017] 1 WLR 3345 at §63 (Sir Terence Etherton MR: “The [Padfield] principle is that a discretion conferred by statute on a minister must be exercised so as to promote and not to defeat the object of the legislation in question. It is for the Court to interpret the legislation in order to identify the policy and objects of the legislation in question”); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §15 (Lord Reed: “discretionary powers must be exercised in accordance with any policy or guidance indicated by Parliament in the relevant legislation”); R (Institute for Chartered Accountants in England and Wales) v Lord Chancellor [2019] EWHC 461 (Admin) at §66 (“decision-making power must be exercised in a way which will promote the policy and purposes of the Act”); Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997, 1030B-D (Lord Reid: “Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court”; “if the Minister, by reason of his having misconstrued the Act or for some other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then … persons aggrieved [are] entitled to the protection of the court”), 1060G (“the executive … must act lawfully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister”); Patel v SSHD [2013] UKSC 72 [2014] AC 651 at §28 (Lord Carnwath: “Under [the Padfield] principle … discretionary powers conferred by statute must not be used in such a way as ‘to thwart or run counter to the policy and objects of the Act’”); M v Scottish Ministers [2012] UKSC 58 [2012] 1 WLR 3386 at §42 (Lord Reed: “a discretionary power must not be used to frustrate the object of the Act which conferred it”). 53.1.3 The Padfield principle as an aspect of illegality/ultra vires. R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16 [2020] 1 WLR 1774 at §1 (Padfield principle is concerned with “the scope of the power”), §22 (“an inquiry by reference to the principle in the Padfield case is an inquiry into whether the provision is ultra vires”), §68 (Padfield principle “depends upon the proper interpretation of the relevant statutory provision”); R (Britcits) v SSHD [2017] EWCA Civ 368 [2017] 1 WLR 3345 at §63 (addressing Padfield under the heading “ultra vires”); R (Ben Hoare Bell Solicitors) v Lord Chancellor [2015] EWHC 523 (Admin) [2015] 1 WLR 4175 at §17 (“analytically, the Padfield ground is a species of ultra vires”); R v Secretary of State for the Environment, ex p Hammersmith & Fulham LBC [1991] 1 AC 521, 597D-E (Padfield challenge means the impugned “administrative action or inaction is then condemned on the 130The

equivalent paragraph in a previous edition was relied on in R (Rogers) v SSHD [2002] EWHC 2078 (Admin) [2003] ACD 9 at §33 (Jackson J); Gibbs v Bishop of Manchester [2007] EWHC 480 (Admin) at §21 (Munby J); Reuters Homes Ltd [2011] NZHC 583 at §45 (Dobson J).

GROUNDS FOR JUDICIAL REVIEW

ground of illegality”); R (Lisle-Mainwaring) v Kensington and Chelsea Royal LBC [2017] EWHC 904 (Admin) [2017] PTSR 850 at §§102, 106 (unlawful, as falling “outside the intention and spirit” of the planning legislation, to use statutory disrepair-intervention power to address an issue of aesthetics); {52.2.5} (‘improper purpose’ and the Padfield principle). 53.1.4 Padfield principle is distinct from unreasonableness. R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91 [2016] 1 WLR 2543 at §42 (Longmore LJ, explaining that it is important not “to confuse the Wednesbury jurisdiction with the Padfield jurisdiction of the court, when they are separate concepts”), discussed in R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §103. 53.1.5 Padfield principle: applicable to exercise of statutory power. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §105 (Rose LJ, describing the Padfield principle as “more appropriate where a specific exercise of a statutory power such as a rule-making power is challenged because it fails to promote the purpose for which the power was conferred. There is no specific exercise of the regulation-making powers … here. The challenge is to the combined effect of the Regulations as currently enacted and their failure to include an exception”); R (Modaresi) v Secretary of State for Health [2013] UKSC 53 [2013] PTSR 1031 at §14 (Lord Carnwath: “statutory discretions … must be exercised in accordance with the purposes of the statute”); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §199 (Lady Hale, describing “the long-established principle of United Kingdom public law that statutory powers must be used for the purpose for which they were conferred and not for some other purpose”); M v Scottish Ministers [2012] UKSC 58 [2012] 1 WLR 3386 at §47 (Padfield principle applicable to “a failure to exercise the power”). 53.1.6 Padfield principle: applicable to prerogative power. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §51 (“ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its operation”, including in the “exercise [of] prerogative powers”). 53.1.7 Padfield challenge to rule-making. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §105 (Rose LJ, describing the Padfield principle as applicable “where a specific exercise of a statutory power such as a rule-making power is challenged because it fails to promote the purpose for which the power was conferred”); R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91 [2016] 1 WLR 2543 at §47 (requirement in regulations unlawful as frustrating the statutory purpose); R (Ben Hoare Bell Solicitors) v Lord Chancellor [2015] EWHC 523 (Admin) [2015] 1 WLR 4175 (successful Padfield challenge to legal aid regulation); M v Scottish Ministers [2012] UKSC 58 [2012] 1 WLR 3386 at §43 (failure to make regulations unlawful as a breach of the Padfield principle); R (Law Society) v Lord Chancellor [2010] EWHC 1406 (Admin) [2011] 1 WLR 234 at §§47-48 (regulation unlawful because objective not permitted by the legislation conferring the power); R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349 (whether Order ultra vires because made for a purpose different from that for which Parliament intended to confer the power); R v SSHD, ex p National Association of Probation Officers [1996] COD 399; R v London Boroughs Transport Committee, ex p Freight Transport Association Ltd [1991] 1 WLR 828, 836F-H (Padfield treated as available to attack Order and licence condition); R v Secretary of State for the Environment, ex p Brent LBC [1982] QB 593, 636B-D; R v Life Assurance & Unit Trust Regulatory Organisation, ex p Kendall [1994] COD 169 (whether Lautro rule within statutory purposes). 53.1.8 Padfield challenge to making of policy. R (Calor Gas Ltd) v Norfolk County Council [2019] EWHC 308 (Admin) at §§35, 55 (whether local authority’s street works licensing policy consistent with the policy and objects of the statute); R (Gurja) v CPS [2012] UKSC 52 [2013] 1 AC 484 (whether policy of taking over and discontinuing private prosecutions breaching the Padfield principle). 53.1.9 Padfield principle in action: illustrations. R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16 [2020] 660

P53 Frustrating the legislative purpose

1 WLR 1774 (successful judicial review challenge to Secretary of State’s guidance for breach of the Padfield principle); R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 [2020] 1 WLR 3300 at §64 (no breach); R v Docherty [2016] UKSC 62 [2017] 1 WLR 181 at §62 (provision of commencement order not contrary to the statutory purpose); R (Haworth) v Northumbria Police Authority [2012] EWHC 1225 (Admin) at §104 (refusal to consent to police pension reconsideration “not in accordance with statutory purpose”); R (Manydown Ltd) v Basingstoke & Deane Borough Council [2012] EWHC 977 (Admin) at §141 (decision “offended the principle in Padfield”); R (Cala Homes (South) Ltd) v Secretary of State for Communities & Local Government [2010] EWHC 2866 (Admin) [2011] LGR 204 at §52 (breach of Padfield principle in using revocation power to abrogate regional strategies as a planning policy tier); R (Webster) v Swindon Local Safeguarding Children Board [2009] EWHC 2755 at §§34-35 (breach of Padfield duty in failing to conduct a prompt and comprehensive serious case review); R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29 [2005] 1 WLR 1681 at §123 (abuse of power to exercise it “inconsistently with Parliament’s clearly expressed will”); R (W) v Commissioner of Police for the Metropolis [2006] EWCA Civ 458 [2007] QB 399 at §35 (Padfield principle meaning police power not a curfew power, but needing to be exercised to protect from or prevent anti-social behaviour); R v Maidstone Crown Court, ex p Hollstein [1995] 3 All ER 503 (arraignment foiling the plain spirit of the Bail Act); R v London Borough of Lambeth, ex p Ghous [1993] COD 302 (policy thwarting legislative principle of parental choice); R v J [2004] UKHL 42 [2005] 1 AC 562 at §38 (CPS having acted so as to “circumvent the intent of Parliament”). 53.1.10 Express statutory purpose/statutory target. Elsick Development Co Ltd v Aberdeen City and Shire Strategic Development Planning Authority [2017] UKSC 66 [2017] PTSR 1413 at §§28-30 (planning conditions required to be imposed for a planning purpose and must fairly and reasonably relate to the development); McEldowney v Forde [1971] AC 632, 655C (“If regulations purporting to be made under this power could be shown to have been made otherwise than for the specified purposes … they could be held to be ultra vires”); R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386 (exercise of power not falling within express statutory purpose); UK Waste Management Ltd v West Lancashire District Council The Times 5 April 1996 (power to make road order “for the purpose of carrying out an experimental scheme of traffic control” not to be used for sole purpose of banning heavy goods vehicles); R v Secretary of State for Employment, ex p National Association of Colliery Overmen, Deputies & Shotfirers [1994] COD 218 (“designed etc” treated as an express purpose, not an ascertainable result or a condition precedent); R (Friends of the Earth) v Secretary of State for Business Enterprise and Regulatory Reform [2009] EWCA Civ 810 [2010] PTSR 635 (statutory duty to set targets for the implementation of a published strategy for reducing fuel poverty). 53.1.11 Decision frustrating the purpose of secondary legislation/policy. R (Saadat) v Rent Service [2001] EWCA Civ 1559 [2002] HLR 613 (decision offending the purpose of a housing benefit Order) at §15 (decision “contrary to the meaning and purposes of the Order”); 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”); {6.2.12} (significance of the purpose/objective of policy guidance). 53.1.12 Exercising powers in one statute to defeat purpose of another. R (OneSearch Direct Holdings Ltd) v York City Council [2010] EWHC 590 (Admin) [2010] PTSR 1481 at §24 (proceeding on the basis, in principle, that “Parliament could not have intended that a power in one statute be exercise in a way that would utterly defeat the purpose of another statute”). 53.1.13 Delay as frustrating the legislative purpose. R v Tower Hamlets LBC, ex p Khalique (1994) 26 HLR 517, 522 (council entitled to provide temporary accommodation “so long as the entitlement to settled accommodation is not so deferred as to frustrate the purpose of the legislation and the rights which it gives to individuals, nor deferred or withheld for some improper or illicit reason”). 661

GROUNDS FOR JUDICIAL REVIEW

53.1.14 Proper purpose but not permitted mode. R v Secretary of State for Transport, ex p Richmond-upon-Thames LBC [1994] 1 WLR 74, 89D-E (no answer that purpose was proper if the means chosen was not one of “the permitted modes”). 53.1.15 Cutting across the legislative scheme. R v Sefton Metropolitan Borough Council, ex p Help The Aged [1997] 4 All ER 532, 543g-h (means threshold adopted in council’s policy unlawful since conflicting with threshold adopted in regulations); Laker Airways Ltd v Department of Trade [1977] QB 643 (judicial review of statutory “guidance” for cutting across the main purpose of the Act); R v Liverpool City Council, ex p Baby Products Association [2000] LGR 171 (no power to issue press release where would circumvent detailed statutory code as to enforcement action); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 552D (wrong to use prerogative powers “so as to frustrate the will of Parliament expressed in a statute”). 53.1.16 Padfield and other principles. {52.2.5} (‘improper purpose’ and the Padfield principle). 53.1.17 Mixed motives/mixed purposes. {52.2.6} (mixed purposes/mixed motives: true and dominant purpose); {4.2.4} (materiality and mixed reasons/separable reasons).

662

P54 Substantive unfairness. A public authority must not act so substantively unfairly as to abuse its power; nor act in unjustified breach of a substantive legitimate expectation. 54.1 Substantive unfairness 54.2 Unjustified breach of a substantive legitimate expectation (SLE)

54.1 Substantive unfairness. Alongside well-established standards of procedural fairness, the rule of law also requires minimum standards of substantive fairness. One established legal criterion of substantive unfairness is unjustified departure from a substantive legitimate expectation. Beyond that, it can be an abuse of power to act with conspicuous substantive unfairness. It must be remembered that substantive questions of judgment and policy are for the public authority as primary decision-maker, with a built-in latitude. That has been the perceived value in continuing to locate substantive unfairness within broad and flexible ‘reasonableness’ review. What can make it an ‘abuse of power’ is that a public authority has acted ‘substantively unfairly’, whether or not that is to be seen as a nuanced species of ‘unreasonableness’. So, if this is and remains ‘unreasonable because …’ territory, the reason in the end why the Court is intervening in a particular case lies in the ‘because …’: because of the substantive unfairness. 54.1.1 Minimum standards of substantive and procedural fairness: the rule of law. 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”), 591A (“The rule of law in its wider sense has procedural and substantive effect”); Jamaicans for Justice v Police Service Commission [2019] UKPC 12 at §24 (Lady Hale, describing, as “fundamental common law principles governing the exercise of public functions”, the following: “the right to equality before the law, [which] like the right to equal protection of the law, affords every person protection against irrationality, fundamental unfairness or the arbitrary exercise of power”); {P61} (procedural unfairness); {7.7} (basic fairness/natural justice). 54.1.2 Substantive and procedural fairness are distinct doctrines. R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §33 (Lord Carnwath: “Procedural fairness or propriety is of course well established”), §41 (distinguishing “procedural unfairness” and “substantive unfairness”); R (Nesiama) v SSHD [2018] EWCA Civ 1369 [2019] 1 WLR 463 at §48 (Hickinbottom LJ: “within the scope of the public law duty of fairness, there are two separate strains, sometimes referred to as ‘procedural fairness’ and ‘substantive fairness’”); R (Talpada) v SSHD [2018] EWCA Civ 841 at §56 (Singh LJ: “it is important to keep in mind the distinction between (1) procedural fairness and (2) substantive fairness … not least because the doctrinal requirements of each concept are different”); Pathan v SSHD [2018] EWCA Civ 2103 [2018] 4 WLR 161 at §54; cf SSHD v AF (No 3) [2009] UKHL 28 [2010] 2 AC 269 at §60 (Lord Phillips: “I do not believe that it is possible to draw a clear distinction between a fair procedure and a procedure that produces a fair result”), applied in R (L) v West London Mental Health NHS Trust [2014] EWCA Civ 47 [2014] 1 WLR 3103 at §70; {16.5} (procedural fairness as hard-edged review). 54.1.3 Consistency/equal treatment. {P55} 54.1.4 Substantive legitimate expectation. {54.2} 54.1.5 Substantive unfairness: the legal criteria of reasonableness and legitimate expectation. R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §31 (Lord Carnwath: “Fairness … can readily be seen as a fundamental principle of democratic society; but not necessarily one directly translatable into a justiciable rule of law”), §41 (“procedural unfairness is well-established and well-understood. Substantive

GROUNDS FOR JUDICIAL REVIEW

unfairness on the other hand – or … ‘whether there has been unfairness on the part of the authority having regard to all the circumstances’ – is not a distinct legal criterion. Nor is it made so by the addition of terms such as ‘conspicuous’ or ‘abuse of power’. Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged”), §68 (Lord Sumption: “to say that the result of the decision must be substantively fair, or at least not ‘conspicuously’ unfair, begs the question by what legal standard the fairness of the decision is to be assessed. Absent a legitimate expectation of a different result arising from the decision-maker’s statements or conduct, a decision which is rationally based on relevant considerations is most unlikely to be unfair in any legally cognisable sense”), discussed in Pathan v SSHD [2018] EWCA Civ 2103 [2018] 4 WLR 161 at §§67-69, 70 (asking whether “such unfairness as to amount to irrationality”). 54.1.6 Substantive unfairness: Lord Scarman’s contribution. HTV Ltd v Price Commission [1976] ICR 170, 189A-B, E (Scarman LJ: “Agencies, such as the Price Commission, must act fairly. If they do not, the High Court may intervene either by prerogative order to prohibit, quash or direct a determination as may be appropriate”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 651E-G (Lord Scarman, recognising “a legal duty owed by the revenue to the general body of the taxpayers to treat taxpayers fairly; to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise; to ensure that there are no favourites and no sacrificial victims”), 652H-653A (“a legal duty of fairness is owed by the revenue to the general body of taxpayers”); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 851D-E (Lord Scarman: “the principle of fairness has an important place in the law of judicial review”); R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §34 (Lord Carnwath, explaining that “a broader concept of ‘unfairness amounting to excess or abuse of power’ emerged in a series of cases in the 1980s, under the influence principally of Lord Scarman”). 54.1.7 Substantive unfairness as an evolving concept: precedent is a guide, not a cage. R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 690f (Sir Thomas Bingham MR: “The categories of unfairness are not closed, and precedent should act as a guide not a cage”); R (Talpada) v SSHD [2018] EWCA Civ 841 at §59 (Singh LJ: “substantive fairness … is a concept which is still relatively novel in our system of public law. It is still an evolving concept”). 54.1.8 Substantive unfairness: the forbidden method, built-in latitude and soft review. R (Talpada) v SSHD [2018] EWCA Civ 841 at §63 (Singh LJ: “unless kept within clearly defined and predictable boundaries, the doctrine of substantive unfairness risks (even if subconsciously) inviting the court to intrude impermissibly on the provinces of the executive”), §65 (“[the] doctrine does not and should not give the court a wide-ranging discretion to overturn the decision of a public authority where it considers it to be unfair”); Pathan v SSHD [2018] EWCA Civ 2103 [2018] 4 WLR 161 at §§64-70; R (Nesiama) v SSHD [2018] EWCA Civ 1369 [2019] 1 WLR 463 at §50 (Hickinbottom LJ: “the concept of substantive fairness may be wider than the concept of legitimate expectation. … However, in this context, only fairness which amounts to an abuse of power is justiciable, where the unfairness is so obvious and the remedy so plain, that the public body can only reasonably act in one way and in acting as it has it can held to have acted unlawfully. … That constraint is vital, to avoid the court intruding impermissibly on the province of the executive”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 414H-415A (Lord Roskill: “the duty to act fairly … must not … be misunderstood or misused. It is not for the courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair”); R v Commissioners of Customs and Excise, ex p British Sky Broadcasting Group [2001] EWHC Admin 127 [2001] STC 437 at §§8-10 (Elias J: “the threshold of unfairness amounting to an abuse of power is a high one, and … the court must be careful not to interfere simply because a decision can be justifiably subject to some criticism”); {13.1} (‘soft’ review: reasonableness standard); {13.1.1} (‘latitude’/‘built-in latitude’); {P15} (the forbidden method). 664

P54 Substantive unfairness

54.1.9 What substantive fairness demands in all the circumstances. R v SSHD, ex p Pierson [1998] AC 539, 603C (Lord Hope, referring to the SSHD as “bound by considerations of substantive fairness … the presumption must be that he will exercise his powers in a manner which is fair in all the circumstances. What fairness demands depends on the context in which the power is being exercised”); R v SSHD, ex p Hindley [2001] 1 AC 410, 418D-H (not substantively unfair to replace fixed tariff with whole life tariff); R v Inland Revenue Commissioners, ex p Matrix-Securities Ltd [1994] 1 WLR 334, 351D-E (whether “contrary to the spirit of fair dealing, which should inspire the whole of public life”), 358F (approaching substantive unfairness on a “broad[] front … taking into account all aspects of the exchanges between the appellants and the authorities”); {P31} (context); {31.2} (circumstances); {31.4} (‘flexi-principles’). 54.1.10 Conduct which is substantively so unfair as to be an abuse of power.131 R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 853A (“unfairness amounting to an abuse of power”), 867B-C; R (Nesiama) v SSHD [2018] EWCA Civ 1369 [2019] 1 WLR 463 at §50 (Hickinbottom LJ: “The court does not usually concern itself with substantive fairness; but … it can and will do so in exceptional circumstances to correct an abuse of power”); R (Talpada) v SSHD [2018] EWCA Civ 841 at §61 (Singh LJ: “it is only unfairness which amounts to ‘an abuse of power’ which is justiciable in this context”), §65 (“the court will and must be able to correct an abuse of power. The doctrine of substantive fairness is an important tool which enables the court to ensure that a public authority acts lawfully and, in particular, does not abuse the powers which have been entrusted to it by Parliament”), §66 (asking whether “the sort of extreme case where it can be said that there was unfairness amounting to an abuse of power”); R (Hely-Hutchinson) v HMRC [2017] EWCA Civ 1075 [2018] 1 WLR 1682 at §45 (HMRC resiling from guidance as wrong in law would need to be a departure from legitimate expectation “so unfair as to amount to an abuse of power”); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 695a (“Unfairness amounting to an abuse of power” described as “conspicuous unfairness”); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] STC 1500 (policy deferring VAT repayments pending retrospective legislation so unfair as to be an abuse of power); R (Patel) v SSHD [2012] EWHC 2100 (Admin) at §98 (‘unfairness as an abuse of power’ is “a useful name” but “not of itself a standard of review”), §147; {54.1.5} (substantive unfairness: the legal criteria of reasonableness and legitimate expectation). 54.1.11 ‘Conspicuous unfairness’: Elias LJ’s nuanced species of unreasonableness. R (AQA) v Lewisham LBC [2013] EWHC 211 (Admin) at §111 (Elias LJ, suggesting that Unilever “conspicuous unfairness” was not formulating “a fresh head of review conferring on the court a wide discretion to substitute its view of the substantive merits for the decisionmaker. In order to constitute conspicuous unfairness, the decision must be immoral or illogical or attract similar opprobrium, and it necessarily follows that it will be irrational. I would treat this concept of conspicuous unfairness as a particular and distinct form of irrationality, which in essence is how it was viewed by Sir Thomas Bingham in Unilever. There are no doubt cases, of which Unilever is one, where the concept of fairness, and an allegation of conspicuous unfairness, better captures the particular nuance of the complaint being advanced than the concept of irrationality. Indeed, I think that is typically so in any case where the alleged unreasonable behaviour involves a sudden change of policy or inconsistent treatment. It is more natural and appropriate to describe such conduct as unfair rather than unreasonable. But in my view it is only if a reasonable body could not fairly have acted as the defendants have that their conduct trespasses into the area of conspicuous unfairness amounting to abuse of power. The court’s role remains supervisory”), cited in R (City Shoes (Wholesale) Ltd) v HMRC [2018] EWCA Civ 315 at §36; R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §40 (“conspicuous unfairness” not a “freestanding principle of law”), §41 (“not a distinct legal criterion”); {57.3} (distinct species of unreasonableness). 131The

equivalent paragraph in a previous edition was relied on in R v Somerset CC, ex p Prospect Care Services [2000] 1 FLR 636 (Dyson J).

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54.1.12 ‘Conspicuous unfairness’: recent illustrations. R (City Shoes (Wholesale) Ltd) v HMRC [2018] EWCA Civ 315 at §35 (Henderson LJ: “the language of ‘conspicuous unfairness’ has been adopted … as a convenient shorthand to describe unfairness which amounts to an abuse of power”); R (Phoenix Life Holdings Ltd) v HMRC [2019] EWHC 2043 (Admin) [2019] STC 1829 at §67 (claimants’ challenge to decision “on the ground that it was so ‘conspicuously unfair’ as to be irrational”), §79 (claim succeeding on the basis that decision “irrational and, if a separate concept, conspicuously unfair”); R (Dickinson) v HMRC [2018] EWCA Civ 2798 [2019] 4 WLR 22 (conspicuous unfairness in reversing postponement agreements, but action not unlawful as no abuse of power); R (Hely-Hutchinson) v HMRC [2017] EWCA Civ 1075 [2018] 1 WLR 1682 at §72 (where changing a policy to correct a mistake, need for “the unfairness … to reach a very high level”, having to be “outrageously or conspicuously unfair”); R (RD (A Child) v Worcestershire County Council [2019] EWHC 449 (Admin) at §§80, 86 (in the context of legitimate expectation, whether “acting contrary to [a] representation would be acting ‘with conspicuous unfairness’ and in that sense abusing its power”, citing Lord Hoffmann in R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 at §44); R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871 at §77 (treating “conspicuous unfairness, amounting to an abuse of power” as a trigger for a procedural duty of consultation); R (McShane) v Secretary of State for Justice [2018] EWHC 2049 (Admin) [2018] ACD 110 at §117 (departure from legitimate expectation of no repatriation without consent conspicuously unfair and an abuse of power); {54.1.5} (substantive unfairness: the legal criteria of reasonableness and legitimate expectation). 54.1.13 ‘Conspicuous unfairness’: older illustrations. MO (Nigeria) v SSHD [2009] UKHL 25 [2009] 1 WLR 1230 at §40 (“conspicuously unfair” not to refund application fee where application becoming doomed by change in immigration rules); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 695a (Sir Thomas Bingham MR: “‘Unfairness amounting to an abuse of power’ as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power. As Lord Donaldson MR said in R v ITC ex p TSW: ‘The test in public law is fairness …’”); R (Kobir) v SSHD [2011] EWHC 2515 (Admin) at §26 (delay in deciding leave to remain constituting conspicuous unfairness); R (Actis SA) v Secretary of State for Communities & Local Government [2007] EWHC 2417 (Admin) at §§139-140, 146 (conspicuous unfairness in changing technical regulation); R (Mugisha) v SSHD [2005] EWHC 2720 (Admin) [2006] INLR 335 at §37 (conspicuously unfair to refuse exceptional leave to remain under policy applicable had nationality not been incorrectly denied); R (A) v SSHD [2006] EWHC 526 (Admin) [2006] Imm AR 477 (conspicuously unfair where previous wrongful refusal of leave to remain under the then Iraq asylum policy); R (HSMP Forum Ltd) v SSHD [2008] EWHC 664 (Admin) at §61 (conspicuous unfairness in rule change); R v National Lottery Commission, ex p Camelot Group Plc [2001] EMLR 3 (conspicuous unfairness in tendering process); R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 (A1P1), §59 (“conspicuously unfair”). 54.1.14 Fairness of a substantive nature: other. {49.3.3} (material mistake of fact, leading to unfairness’: the E criteria); {54.2.3} (substantive legitimate expectation (Coughlan): fairness/justification test, subsequently described as proportionality {54.2.6}); {7.7} (basic fairness/natural justice); {35.2.7} (principle of legality and basic common law fairness/ natural justice/impartiality); {29.3.13} (interpretation to preserve basic fairness). 54.1.15 Substantive unfairness in action: further illustrations. R (Law Society) v Legal Services Commission [2010] EWHC 2550 (Admin) at §105 (unfair and arbitrary denial of the opportunity to acquire accreditation); R (S) v SSHD [2007] EWCA Civ 546 (arbitrary deferral of old asylum cases to meet target for new ones); R (British Medical Association) v Secretary of State for Health [2008] EWHC 599 (Admin) at §§12, 27 (retrospective alteration of pensionable earnings method); R v Inland Revenue Commissioners, ex p Unilever Plc 666

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[1996] STC 681 (unfair changed practice refusing late tax returns); R v National Lottery Commission, ex p Camelot Group Plc [2001] EMLR 3 (allowing one bidder only to allay concerns); R v SSHD, ex p Asif Mahmood Khan [1984] 1 WLR 1337 (unfair to refuse entry other than by reference to stated criteria); R (Rashid) v SSHD [2005] EWCA Civ 744 [2005] INLR 550 (unfair non-application of asylum policy to claimant); R (TB) v SSHD [2007] EWHC 3381 (Admin) at §§19, 24 (substantively unfair and an abuse of process for SSHD to deny asylum on a ground not raised during appeal to the tribunal). 54.1.16 Action not substantively unfair so as to be unlawful: further illustrations. R (Nesiama) v SSHD [2018] EWCA Civ 1369 [2019] 1 WLR 463 at §54 (not substantively unfair so as to be unlawful for the Secretary of State to decline to have regard to position as it was under now superseded immigration rules); MO (Nigeria) v SSHD [2009] UKHL 25 [2009] 1 WLR 1230 (no entitlement in fairness to be dealt with under the immigration rules as they stood at the date of the application); R v Inland Revenue Commissioners, ex p MatrixSecurities Ltd [1994] 1 WLR 334 (Revenue withdrawal of tax clearance not substantively unfair in all the circumstances); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835 (no substantive unfairness to reassess tax, in the light of earlier correspondence and delay); R v SSHD, ex p Hargreaves [1997] 1 WLR 906 (not substantively unfair to amend prisoner compact delaying home leave eligibility); R v Ministry for Agriculture Fisheries & Food, ex p Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714 (change of policy as to transfer of fish quota not substantively unfair); R v Commissioners of Customs and Excise, ex p British Sky Broadcasting Group [2001] EWHC Admin 127 [2001] STC 437 (not substantively unfair to treat taxpayers differently, where perceived (albeit incorrectly) a difference between them). 54.1.17 Departing from (conduct equivalent to) contract/representation. {54.2.9} 54.1.18 Substantive unfairness and inalienability. {P40} (inalienability); {40.2.11} (substantive unfairness and inalienability problems); R v Commissioners of Customs and Excise, ex p F & I Services Ltd [2001] EWCA Civ 762 (no legitimate expectation that tax authorities will administer the tax scheme in a way which is contrary to law; no breach of legitimate expectation above having fair notice of change and not being made liable retrospectively for back tax); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 864G (Lord Templeman: “The court can only intervene by judicial review to direct the commissioners to abstain from performing their statutory duties or from exercising their statutory powers if the court is satisfied that ‘the unfairness’ of which the [claimant] complains renders the insistence by the commissioners on performing their duties or exercising their powers an abuse of power by the commissioners”); HTV Ltd v Price Commission [1976] ICR 170, 185G-H (Lord Denning MR: “a public body, which is entrusted by Parliament with the exercise of powers for the public good, cannot fetter itself in the exercise of them. It cannot be estopped from doing its public duty. But that is subject to the qualification that it must not misuse its powers: and it is a misuse of power for it to act unfairly or unjustly towards a private citizen when there is no overriding public interest to warrant it”); R v Croydon Justices, ex p Dean [1993] QB 769, 776H-778G (police conduct could mean prosecution an abuse of process, notwithstanding entitlement and duty to prosecute, and notwithstanding the absence of authority to have given promises not to do so). 54.1.19 Overlap between substantive unfairness and substantive legitimate expectation. {54.2} (unjustified breach of a substantive legitimate expectation); R (McShane) v Secretary of State for Justice [2018] EWHC 2049 (Admin) [2018] ACD 110 at §117 (departure from legitimate expectation of no repatriation without consent conspicuously unfair and an abuse of power); Gokool v Permanent Secretary for the Ministry of Health and Quality of Life [2008] UKPC 54 at §21 (Lord Carswell, speaking of substantive legitimate expectation: “The basis of the jurisdiction is abuse of power and unfairness to the citizen on the part of a public authority”); R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8 [2003] 1 WLR 348 at §34 (Lord Hoffmann, linking legitimate expectation and unfair abuse of power, in referring to “the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power”); R v SSHD, ex p Pierson [1998] AC 539, 590H (substantive unfairness and legitimate expectation treated 667

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as separate: not necessary to decide whether legitimate expectation has substantive effect), 591F (rule of law enforces minimum standards of fairness, procedural and substantive); R v Ministry of Defence, ex p Walker [2000] 1 WLR 806 (HL analysing substantive fairness argument in terms of legitimate expectation); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] STC 1500, 1523a (treating legitimate expectation/abuse of power and unfairness together); R (Grimsby Institute of Further & Higher Education) v Chief Executive of Skills Funding [2010] EWHC 2134 (Admin) at §89 (suggesting that unfairness constituting an abuse of power could be analysed as a legitimate expectation that a public authority will not act so unfairly as to abuse its power). 54.1.20 Link between substantive unfairness and other related concepts. {P55} (consistency/equal treatment); {57.3.6} (unreasonableness: oppressive); {45.4} (overlapping grounds and interchangeable labels); {P60} (procedural unfairness). 54.1.21 Estoppel and public authorities: available in principle. R (Mandic-Bozic) v British Association for Counselling and Psychotherapy [2016] EWHC 3134 (Admin) (judicial review granted on the basis that disciplinary proceedings were barred by “cause of action estoppel”, and manifestly unfair, because of identical complaints had been adjudicated upon by another regulatory body); Downderry Construction Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 02 (Admin) at §19 (“estoppel is available in principle in the present [planning] context, by way of exception to the normal rule that a public authority cannot be estopped in the exercise of its statutory functions”, referring to Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204), §22 (discussing estoppel by representation), §47 (estoppel by convention); R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1 [2011] 2 AC 146 (res judicata and cause of action estoppel preventing same charge being pursued again in disciplinary proceedings); London Borough of Tower Hamlets v Sherwood [2002] EWCA Civ 229 (council estopped from revoking permission for kiosks, refurbished in the expectation of being permitted to continue to trade) at §68 (Chadwick LJ, applying the principle that it is “not … open to a person who has encouraged another to go onto his land and expend money in the expectation that he would be allowed to remain for an indefinite but lengthy period … to revoke that permission for no reason other than that he has had a change of mind”); R v Caradon District Council, ex p Knott [2000] 3 PLR 1 (council estopped from taking planning enforcement action, by means of (a) estoppel by representation; (b) issue estoppel; and/or (c) estoppel by convention); R (Capital Care Services (UK) Ltd) v SSHD [2012] EWCA Civ 1151 (considering availability of estoppel in public law); R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §35 (Lord Steyn, relying on the proposition that: “While generally an estoppel cannot operate against the Crown, it can be estopped when it is abusing its powers”, referring to HTV, Preston and Laker); {2.1.34} (whether a special approach to issue estoppel/ res judicata/abuse of process). 54.1.22 Estoppel and public authorities: a cautious approach. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8 [2003] 1 WLR 348 at §32 (planning officer’s opinion “could not reasonably have been taken as a binding representation that no planning permission was required”), §33 (“unhelpful to introduce private law concepts of estoppel into planning law”), applied in South Bucks District Council v Flanagan [2002] EWCA Civ 690 [2002] 1 WLR 2601 at §16 (Keene LJ: “Now that [the] concepts [of legitimate expectation and abuse of power] are recognised, there is no longer a place for the private law doctrine of estoppel in public law or for the attendant problems which it brings with it”); Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWCA Civ 983 [2002] 4 PLR 108 (legitimate expectation and estoppel only capable in exceptional circumstances to override planning requirements of the statutory code); Gowa v Attorney-General [1985] 1 WLR 1003, 1005G (Lord Roskill, leaving open whether “where a statute confers a discretionary power on the Crown and the exercise of that discretionary power is essential before the desired consequences can follow, the need for the exercise of that discretionary power as a condition precedent to those consequences following cannot be by-passed by the invocation of the doctrine of estoppel”); R v Immigration Appeal Tribunal, ex p Patel 668

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(Anilkumar Rabindrabhai) [1988] 1 AC 910, 918H-919A (no estoppel from leave to re-enter); R v Wirral Metropolitan Borough Council, ex p B [2001] LGR 1 at §§36-42 (no estoppel from educational needs statement sent to parents in error and not reflecting tribunal’s order); Buckinghamshire County Council v Secretary of State for the Environment, Transport and the Regions [2001] 1 PLR 38, 55H-56B (“It is well established that no authority can be estopped from exercising their statutory duty, at least subject to the principles of fairness explained in R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213. That apart, I see no reason why, in principle, estoppel cannot apply in the context of planning control”); {40.2.12} (inalienability and estoppel). 54.1.23 Holding the public authority to its binding determinations. {54.2.10} 54.1.24 Relationship between ‘estoppel’ and substantive unfairness/abuse of power. R v Inland Revenue Commissioners, ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1574B (considering use of the term “estoppel” in R v Inland Revenue Commissioners, ex p Preston [1985] AC 835); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 695b (and below at [1994] STC 841, 852e-f), citing R v Independent Television Commission, ex p TSW Broadcasting Ltd 5 February 1992 unreported (“The test in public law is fairness, not an adaptation of the law of contract or estoppel”; HL is at [1994] 2 LRC 414); R v Ministry of Agriculture Fisheries & Food, ex p Cox (1994) 6 Admin LR 421, 436G-437E (Ministry’s own guidance proceeding upon same erroneous assumption as claimant, so “inequitable” to remove claimant’s quota); HTV Ltd v Price Commission [1976] ICR 170, 185G-H (Lord Denning MR: “a public body, which is entrusted by Parliament with the exercise of powers for the public good, cannot fetter itself in the exercise of them. It cannot be estopped from doing its public duty. But that is subject to the qualification that it must not misuse its powers: and it is a misuse of power for it to act unfairly or unjustly towards a private citizen when there is no overriding public interest to warrant it”), cited in R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 865D (Lord Templeman); Laker Airways Ltd v Department of Trade [1977] QB 643, 707D-F (Crown can “be estopped when it is not properly exercising its powers, but is misusing them; and it does misuse them if it exercises them in circumstances which work injustice or unfairness to the individual without any countervailing benefit for the public”), 709A-E (Roskill LJ); {41.1.13} (relationship between estoppel and legitimate expectation).

54.2 Unjustified breach of a substantive legitimate expectation (SLE). Substantive legitimate expectation is a recognisably distinct species of substantive unfairness, seen as a freestanding public law criterion. A public authority acts unlawfully where, without justification, it departs from (defeats) a person’s legitimate expectation of a substantive outcome. Such an expectation will have been engendered by a previous relevant act, specifically: a clear (express or implied) promise or practice. The justification test invoked is in substance the proportionality principle. However, what has to be justified as proportionate is not the new stance or measure but its impact in departing from the legitimate expectations. 54.2.1 Legitimate expectation. {P41} (legitimate expectation); {41.1} (the role of legitimate expectation); {41.2} (anatomy of a legitimate expectation). 54.2.2 The evolution of substantive legitimate expectation (SLE). Breen v Amalgamated Engineering Union [1971] 2 QB 175, 191F (Lord Denning MR, dissenting, describing the claimant as having had “a legitimate expectation that he would be approved by the district committee, unless there were good reasons against him”); R v SSHD, ex p Asif Mahmood Khan [1984] 1 WLR 1337, 1344D (Parker LJ: “the Secretary of State, if he undertakes to allow in persons if certain conditions are satisfied, should … be entitled to resile from that undertaking … only if the overriding public interest demands it”); R v SSHD, ex p Ruddock [1987] 1 WLR 1482, 1497A-B (Taylor J: “the doctrine of legitimate expectation in essence imposes a duty to act fairly. Whilst most of the cases are concerned … with a right to be heard, I do not think the doctrine is so confined. Indeed, in a case where ex hypothesi there is no right 669

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to be heard, it may be thought the more important to fair dealing that a promise or undertaking given by a minister as to how he will proceed should be kept”); R v Ministry for Agriculture Fisheries & Food, ex p Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714, 723c-724e (Sedley J, legitimate expectation capable of being substantive, and that “the same principle of fairness in my judgment governs both” procedural and substantive legitimate expectations), 731f-g; R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (breach of SLE of residential home for life); R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8 [2003] 1 WLR 348 at §34 (Lord Hoffmann, referring to “the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power”). 54.2.3 SLE: Coughlan. R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (breach of SLE of residential home for life, applying fairness/justification test) at §57(c) (describing the court’s “task” as “weighing the requirements of fairness against any overriding interest relied upon for the change of policy”), §89 (whether decision involved an “overriding public interest which justified it”). 54.2.4 SLE: a governing legal criterion distinct from reasonableness. R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §41 (Lord Carnwath, referring to “the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged”), §50 (Lord Sumption: “Absent a legitimate expectation of a different result arising from the decision-maker’s statements or conduct, a decision which is rationally based on relevant considerations is most unlikely to be unfair in any legally cognisable sense”). 54.2.5 Breach of substantive legitimate expectation (SLE): illustrations. R (RD (A Child) v Worcestershire County Council [2019] EWHC 449 (Admin) at §§94-95 (unjustified breach of SLE); R (Dickinson) v HMRC [2018] EWCA Civ 2798 [2019] 4 WLR 22 (no breach of a SLE where no abuse of power in exercise of new statutory power to reverse previous agreement); R (Simpson) v Chief Constable of Greater Manchester Police [2013] EWHC 1858 (Admin) [2014] ACD 20 (decision to dissolve pool of police promotion candidates an unjustified breach of a SLE); Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32 [2012] 1 AC 1 (breach of a SLE as to control and management of taxi stand); R (BAPIO Action Ltd) v SSHD [2008] UKHL 27 [2008] 1 AC 1003 at §60 (DoH guidance infringing SLE engendered by immigration rules and practice); R (B) v Nursing & Midwifery Council [2012] EWHC 1264 (Admin) at §§44-45 (breach of SLE where purporting to rescind a decision that no case to answer); R (HSMP Forum Ltd) v SSHD (No 2) [2008] EWHC 711 (Admin) at §49 (“substantive legitimate expectation of all those on the [Highly Skilled Migrant Programme] that they would enjoy the benefits of the programme, as they were at the time they joined it”); R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (breach of SLE of residential home for life); R (Rashid) v SSHD [2005] EWCA Civ 744 [2005] INLR 550 at §25 (breach of SLE of application of asylum policy); R (Corby District Council) v Secretary of State for Communities and Local Government [2007] EWHC 1873 (Admin) [2008] LGR 109 at §§44, 53 (unjustified departure from SLE engendered by local government scheme as published); R (Staff Side of the Police Negotiating Board) v SSHD [2008] EWHC 1173 (Admin) at §65 (Secretary of State complying with legitimate expectation not to reject recommendations without careful consideration); R (Davies) v HMRC [2011] UKSC 47 [2011] 1 WLR 2625 (no legitimate expectation arising from Revenue booklet, correctly interpreted); R (Cameron) v HMRC [2012] EWHC 1174 (Admin) at §90 (SLE based on Revenue’s published concession); R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §37 (describing Preston [1985] AC 835 as “best understood by reference to principles of legitimate expectation derived from an express or implied promise”), §40 (describing Unilever as a case which “today” would have been argued as “a sufficient representation … implied from the revenue’s consistent practice”). 54.2.6 SLE: proportionality test (justifying the impact on the legitimate expectations). R (Patel) v General Medical Council [2013] EWCA Civ 327 [2013] 1 WLR 327 670

P54 Substantive unfairness

(Lloyd Jones LJ, emphasising the need to justify not the new policy but the impact in dishonouring the legitimate expectations of those affected by its immediate introduction) at §75 (“it is important not to lose sight of what is under consideration here. It is not whether the GMC is justified in refusing recognition to certain distance learning qualifications, but whether it was justified in deciding to do so without introducing any transitional provisions with the result that it refused to honour the assurance given to the claimant”); R (Alliance of Turkish Businesspeople Ltd) v SSHD [2020] EWCA Civ 553 [2020] 1 WLR 2436 at §§18-19, 66 (Flaux LJ, explaining that the correct approach asks whether “to frustrate the expectation ‘is so unfair [as] to amount to an abuse of power”, “whether the frustration of the substantive expectation can be objectively justified as a proportionate response having regard to the legitimate aim pursued by the public body in the public interest”); R (Bond) v Vale of White Horse District Council [2019] EWHC 3080 (Admin) [2020] PTSR 724 at §§67-68 (whether “justified, on the grounds of overriding public interest” as “proportionate and lawful”); R (RD (A Child)) v Worcestershire County Council [2019] EWHC 449 (Admin) at §82(vii) (test is “whether frustrating the substantive legitimate expectation can be objectively justified in the public interest and as a proportionate response”); United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17 [2016] 1 WLR 3383 at §121 (Lord Carnwath: “the court will require [the SLE] to be honoured, unless the authority is able to show good reasons, judged by the court to be proportionate, to resile from it. In judging proportionality the court will take into account any conflict with wider policy issues, particularly those of a ‘macroeconomic’ or ‘macro-political’ kind”); R (Nadarajah) v SSHD [2005] EWCA Civ 1363 at §68 (whether “objectively justified as a proportionate measure in the circumstances”), applied in Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32 [2012] 1 AC 1 at §38; R (B) v Nursing & Midwifery Council [2012] EWHC 1264 (Admin) at §44 (“The standard of review is proportionality”); R (W) v Secretary of State for Education [2011] EWHC 3256 (Admin) [2012] ELR 172 at §41 (“the standard of review … is that of proportionality”), §53 (legitimate aim in the public interest), §67 (proportionate). 54.2.7 SLE: justification/fairness/overriding public interest test: other illustrations. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §62 (whether departure from clear undertaking “fair”), applied in R (Aozora GMAC Investment Ltd) v HMRC [2019] EWCA Civ 1643 [2020] 1 All ER 803 at §34; R (McShane) v Secretary of State for Justice [2018] EWHC 2049 (Admin) [2018] ACD 110 at §117 (departure from legitimate expectation of no repatriation without consent conspicuously unfair and an abuse of power); R (Hely-Hutchinson) v HMRC [2017] EWCA Civ 1075 [2018] 1 WLR 1682 at §45 (Arden LJ: “where HMRC issues a policy or guidance but later comes to the view that its policy or guidance was wrong in law … [and] finds that they need to resile from guidance, a taxpayer can only rely on the legitimate expectation that the guidance created where, having regard to the legitimate expectation, it would be so unfair as to amount to an abuse of power”); R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, at §57(c) (describing the court’s “task” as “weighing the requirements of fairness against any overriding interest relied upon for the change of policy”), §89 (whether decision involved an “overriding public interest which justified it”); Gokool v Permanent Secretary for the Ministry of Health and Quality of Life [2008] UKPC 54 at §21 (“overriding public interest”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §§60, 133, 177, 182 (proceeding on the basis of the analysis in Coughlan), §63 (“sufficient public interest justification” here); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §309 (Lord Phillips: “In an extreme case the courts can require an authority to comply with its undertaking”, referring to Coughlan); R (HSMP Forum Ltd) v SSHD [2008] EWHC 664 (Admin) at §61 (no sufficient public interest to outweigh the unfairness); R (HSMP Forum Ltd) v SSHD (No 2) [2008] EWHC 711 (Admin) at §77 (no “sufficient public interest which justifies a departure from the requirement of good administration and straightforward dealing with the public, or which outweighs the unfairness”); R (Capital Care Services (UK) Ltd) v SSHD [2012] EWCA Civ 1151 (overriding public interest here); R (Charlton) v Secretary of State for Education and Skills [2005] EWHC 1378 (Admin) [2005] 2 FCR 603 at §161 (pressing public interest test shown here); R (Bath) v North Somerset Council [2008] EWHC 630 (Admin) [2009] HLR 1 at §§39-41 (justification test met here). 671

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54.2.8 SLE: a ‘narrow’ formulation. United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17 [2016] 1 WLR 3383 at §121 (Lord Carnwath, favouring this “narrow interpretation of the Coughlan principle. … Where a promise or representation, which is ‘clear, unambiguous and devoid of relevant qualification’, has been given to an identifiable defined person or group by a public authority for its own purposes, either in return for action by the person or group, or on the basis of which the person or group has acted to its detriment, the court will require it to be honoured, unless the authority is able to show good reasons, judged by the court to be proportionate, to resile from it. In judging proportionality the court will take into account any conflict with wider policy issues, particularly those of a ‘macro-economic’ or ‘macro-political’ kind”). 54.2.9 Departing from (conduct equivalent to) contract/representation. R (K) v SSHD [2018] EWHC 2951 (Admin) [2019] 4 WLR 92 at §22 (judicial review granted for unlawful purported unilateral variation of contract to fund support to human trafficking victims, a decision “taken on a false basis” and “outside the tightly confined variation power within the contract”); R (Harris) v Broads Authority [2016] EWHC 799 (Admin) [2017] 1 WLR 567 at §79 (“unfairness amounting to an abuse of power could arise … where a power is exercised in circumstances equivalent to a breach of contract or breach of representation on the part of the defendant”); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 866H-867C (Lord Templeman, describing the entitlement “to judicial review of a decision taken by the commissioners if that decision is unfair to the appellant because the conduct of the commissioners is equivalent to a breach of contract or a breach of representation. Such a decision falls within the ambit of an abuse of power”), 865H (explaining Robertson v Minister of Pensions [1949] 1 QB 227; Wells v Minister of Housing & Local Government [1967] 1 WLR 1000 and Lever Finance Ltd v Westminster (City) LBC [1971] 1 QB 222 as cases where: “the authorities acted in a manner for which, if the authorities had not been emanations of the Crown, the [claimants] would have enjoyed a remedy by way of damages or an injunction for breach of contract or breach of representations”); R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 at §44 (Lord Hoffmann: “It is well established that conduct by an officer of state equivalent to a breach of contract or breach of representation may be an abuse of power for which judicial review is the appropriate remedy. … This particular form of the more general concept of abuse of power has been characterised as the denial of a legitimate expectation”); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] STC 1500 (clear statement recognising entitlement to VAT repayments), 1523a-1528e; R v SSHD, ex p Golam Mowla [1992] 1 WLR 70 (visa-exempt passport stamps not constituting representations of entitlement to enter, beyond the terms of the statutory scheme), 85H-86A; Harley Development Inc v Commissioner of Inland Revenue [1996] 1 WLR 727 (no representation or reliance); R v Inland Revenue Commissioners, ex p Allen [1997] STC 1141 (no assurance or representation that claimant would remain free from prosecution); R (DFS Furniture Co Ltd) v Commissioners of Customs and Excise [2002] EWHC 807 (Admin) (Customs and Excise entitled to exercise retrospective power to reclaim repaid VAT, having on the facts not reached an agreement settling a VAT appeal); R v SSHD, ex p Bobby Gangadia [1994] Imm AR 341, 344 (treating the contract/representation principle as part of legitimate expectation). 54.2.10 Holding the public authority to its binding determinations. {41.1.14} (conduct constituting a formal decision); Re No 56 Denton Road, Twickenham [1953] Ch 51, 56 (Vaisey J: “[W]here Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body”), applied in R v Ministry of Agriculture Fisheries & Food, ex p Cox (1994) 6 Admin LR 421, 435F-436E and in R v Parole Board, ex p Robinson 29 July 1999 unreported (decision of Discretionary Lifer Panel binding and not capable of being overturned); Wells v Minister of Housing & Local Government [1967] 1 WLR 1000; R v British Advertising Clearance Centre, ex p Swiftcall Ltd 16 November 1995 unreported (effect of approval not a binding decision precluding revocation, but a relevant consideration 672

P54 Substantive unfairness

requiring a good reason for such a course); Nahar v Social Security Commissioners [2001] EWHC Admin 1049 [2002] 2 FCR 442 at §§64-67 (CA is at [2002] EWCA Civ 859); R (Hashmi) v SSHD [2002] EWCA Civ 728 [2002] INLR 377 (Home Office letter, referring to decision to grant indefinite leave to remain, constituting a “notice in writing” under the Immigration Act 1971 s.4(1)); R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd [2002] UKHL 8 [2003] 1 WLR 348 at §31 (“letter … intended to be a decision having immediate legal consequences”); SSHD v JS (Uganda) [2019] EWCA Civ 1670 [2020] 1 WLR 43 at §90 (“Where an administrative decision has been made on a mistaken premise, the decision can be revisited so that the law is properly applied, unless it would be unjust to allow this”). 54.2.11 SLE: whether onus remaining on the claimant. {42.2.15} (defendant’s onus: substantive legitimate expectation (justification). 54.2.12 Sub-category of SLE cases involving a reasonableness test. R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, at §57(a) (describing a category of cases where “the court is confined to reviewing the decision on Wednesbury grounds”), §71 (here, the principle of legitimate expectation can “operate as an aspect of good administration, qualifying the intrinsic rationality of policy choices”), §73 (ultimately, “the individual can claim no higher expectation than to have his individual circumstances considered by the decision-maker in the light of the policy then in force”), §76 (fairness requires no more than this); R v SSHD, ex p Hargreaves [1997] 1 WLR 906, 921E (Hirst LJ: “Wednesbury provides the correct test”), 924H (Pill LJ: “The court can quash the decision only if, in relation to the expectation and in all the circumstances, the decision to apply the new policy in the particular case was unreasonable in the Wednesbury sense”). 54.2.13 SLE: choosing between reasonableness and proportionality. R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 at §59 (deciding whether case falls into reasonableness or justification category is a “difficult task” in “what is still a developing field of law”), §56 (needing “a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion”), §59 (most justification cases are “likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract”); R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1130F (Laws LJ: “The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review”); R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §112 (“an issue-sensitive scale of intervention”). 54.2.14 SLE: other aspects. {41.1} (the role of legitimate expectation); {40.2} (inalienability and legitimate expectation); {54.1.21} (estoppel and public authorities: available in principle); {54.1.22} (estoppel and public authorities: a cautious approach).

673

P55 Consistency/equal treatment. A public authority must avoid unjustified inconsistency, unequal treatment, uncertainty and arbitrariness; and make no impermissible ‘departures’. 55.1 Consistency, equal treatment, certainty and arbitrariness 55.2 Statutory equality duties 55.3 Unjustified ‘departure’

55.1 Consistency, equal treatment, certainty and arbitrariness. Basic principles of good administration include consistency, equal treatment, certainty and protection from arbitrariness. They, and the minimum standards of substantive fairness to which they are linked, find recognition and reflection within the common law. They can directly inform the question whether there are grounds for the Court to intervene in the exercise of its supervisory jurisdiction. That does not mean they are, or are yet, freestanding legal criteria. It may be appropriate (and sufficient) that they are characterised as nuanced species, or manifestations, of broad overarching principles of lawfulness, reasonableness and fairness. This may be ‘unreasonable because …’ territory. But the reason, in the end, why the Court is intervening in a particular case can be because of inconsistency, inequality of treatment, uncertainty or arbitrariness. 55.1.1 Substantive unfairness/distinct species of reasonableness. {P54} (substantive unfairness); {57.3} (distinct species of unreasonableness). 55.1.2 Statutory equal treatment protections. {55.2} (statutory equality duties); {59.8} (HRA:ECHR Article 14: non-discrimination). 55.1.3 Equality/non-discrimination/equal treatment in EU law. {8.1.6} 55.1.4 Statutory duty to act preferentially/equitably. R (A) v Lambeth LBC [2002] EWCA Civ 1084 [2002] HLR 998 (council’s housing allocation policy not complying with statutory duty to afford “reasonable preference” to particular groups, because giving equal preference to non-listed groups); Waikato Regional Airport Ltd v Attorney General [2003] UKPC 50 (statutory duty to “take all reasonable steps to ensure [costs] … recovered in accordance with the principles of equity and efficiency”); {55.2} (statutory equality duties). 55.1.5 Judicial review for arbitrariness. R (Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin) at §33 (Thornton J: “When an administrative decision is vested in a public authority … the law requires steps be taken to … avoid arbitrariness in its exercise”); R (Hussain) v SSHD [2012] EWHC 1952 (Admin) at §46 (James Dingemans QC: “Any discretionary public law power ‘must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it’”); R v Ministry for Agriculture Fisheries & Food, ex p Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714, 722a-c (Sedley J: an “imperative of public law”, that “a discretionary public law power must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it”); Jamaicans for Justice v Police Service Commission [2019] UKPC 12 at §24 (Lady Hale, describing, as “fundamental common law principles governing the exercise of public functions”, the following: “the right to equality before the law, [which] like the right to equal protection of the law, affords every person protection against … the arbitrary exercise of power”); R (Mitocariu) v Central and North West London NHS Trust [2018] EWHC 126 (Admin) [2018] PTSR 1287 at §36 (David Casement QC, referring to: “the well-recognised principle of public law that … any discretionary power ‘must not be exercise arbitrarily or with partiality as between individuals or classes potentially affected by it’”); R (Law Society) v Legal Services Commission [2010] EWHC 2550 (Admin) at §96 and §105 (LSC’s approach “unfair and arbitrary”); R (S) v SSHD [2007] EWCA Civ 546 at §52 (arbitrary deferral of older asylum cases); R v Governor of Frankland Prison, ex p Russell [2000]

P55 Consistency/equal treatment

1 WLR 2027 (policy of restricting prisoners to one meal a day an unjustified interference with fundamental rights), at §18 (“The limitation of the provision to one meal a day is arbitrary and operates irrespective of the impact on the individual prisoner”); Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735, 753E-G (referring to “arbitrariness” as an application of “the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute”); R v SSHD, ex p Urmaza [1996] COD 479 (describing the principle of consistency and avoidance of arbitrariness); R v MAFF, ex parte First City Trading [1997] 1 CMLR 250 at §69 (describing irrationality and proportionality as “the imposition of compulsory standards on decision-makers so as to secure the repudiation of arbitrary power”); Jamaicans for Justice v Police Service Commission [2019] UKPC 12 at §24 (describing, as “fundamental common law principles governing the exercise of public functions”, the following: “the right to equality before the law, [which] like the right to equal protection of the law, affords every person protection against … the arbitrary exercise of power”); R v Bradford Metropolitan Borough Council, ex p Sikander Ali [1994] ELR 299, 308E (Jowitt J: “I accept that a criterion so nebulous as to be unlikely to produce any result other than one which was quixotic, or arbitrary or whimsical would be Wednesbury unreasonable”); R (Saadi) v SSHD [2001] EWCA Civ 1512 [2002] 1 WLR 356 (CA) at §29 (“the fact that there is limited room at Oakington [the detention centre], so that not all who would qualify to go there can be accommodated, does not result in arbitrariness”). 55.1.6 Judicial review for uncertainty: common law standards of certainty. Secretary of State for Defence v Percy [1999] 1 All ER 732, 742b (“the principles of public law … include principles of legal certainty”); McEldowney v Forde [1971] AC 632, 643F (asking whether regulation “too vague and so arbitrary as to be wholly unreasonable”);R (Glenn & Co (Essex) Ltd) v HM Commissioners for Revenue and Customs [2011] EWHC 2998 (Admin) [2012] 1 Cr App R 291 at §59 (search warrant must be sufficiently clear and precise); R (Limbu) v SSHD [2008] EWHC 2261 (Admin) [2008] HRLR 1219 at §69 (policy “so ambiguous as to the expression of its scope as to mislead”), §70 (“this policy has failed to coherently describe itself”); R (San Michael College Ltd) v SSHD [2011] EWCA Civ 1336 at §44 (“decision making process so obscure that the suspension and revocation cannot stand”); R (Developing Retail Ltd) v South East Hampshire Magistrates’ Court [2011] EWHC 618 (Admin) at §35 (licence condition “so vague as to be unenforceable”); R (Grogan) v Bexley NHS Care Trust [2006] EWHC 44 (Admin) [2006] LGR 491 at §§94, 100 (decision unlawful because made by reference to vague policy criteria); R (C) v Lambeth LBC [2008] EWHC 1230 at §42 (elements “so vague as to not be able to constitute a [pathway] plan”); {46.1.12} (uncertainty as ultra vires/invalidity); {57.3.7} (unreasonableness: uncertainty); {1.2.15} (rule of law and certainty/transparency). 55.1.7 Equality before the law/equal protection of the law. Jamaicans for Justice v Police Service Commission [2019] UKPC 12 at §24 (Lady Hale, describing, as “fundamental common law principles governing the exercise of public functions”, the following: “the right to equality before the law, [which] like the right to equal protection of the law, affords every person protection against irrationality, fundamental unfairness or the arbitrary exercise of power”); R v Immigration Appeal Tribunal, ex p Jeyeanthan [1998] Imm AR 369 (Sedley J), 374 (referring in the context of immigration appeals notices to the “principle of equality before the law” as being “jeopardised if the state as appellant is placed or is allowed to place itself in a materially different position from any other appellant”; CA is at [2000] 1 WLR 354). 55.1.8 Equality/equal treatment at common law. Pathan v SSHD [2018] EWCA Civ 2103 [2018] 4 WLR 161 at §58 (Singh LJ: “the principle of equal treatment … [is] a doctrine whose very existence remains controversial in modern public law”); SSHD v BK (Afghanistan) [2019] EWCA Civ 1358 [2019] 4 WLR 111 at §39 (Rose LJ, referring to “consistency as a principle of public law and the well-established principle of administrative law that persons should be treated uniformly unless there is some valid reason to treat them differently”, as described in AA (Somalia) v SSHD [2007] EWCA Civ 1040 [2008] INLR 1); R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §31 (Lord Carnwath: “equal treatment, can readily be seen as a fundamental principle of democratic society; but 675

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not necessarily one directly translatable into a justiciable rule of law”), §29 (“In the present context, however, it is not necessary in my view to look for some general public law principle of equal treatment. It is not difficult to hold that the OFT owed a general duty during the negotiations in 2008 to offer equal treatment to those subject to the Tobacco investigation”); R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322 at §26 (Lord Sumption: “The general principle of equality … is that comparable situations are not to be treated differently or different situations comparably without objective justification. This is … fundamental to any rational system of law, and has been part of English public law since at least the end of the nineteenth century”); Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 at §132 (Lady Hale: “a guarantee of equal treatment is … essential to democracy”); Matadeen v Pointu [1999] 1 AC 98, 109C-111G, 118F (PC recognising a general common law principle of equality, but the question of justification for the inequality being primarily entrusted to the decision-maker, subject to orthodox review); R (Gurung) v Ministry of Defence [2002] EWHC 2463 (Admin) at §§35-39 (Matadeen described as a case which “leaves intact the common law principle of equality”; exclusion from compensation held to be unreasonable here by reference to common law principle of equality); AL (Serbia) v SSHD [2008] UKHL 42 [2008] 1 WLR 1434 at §42 (common law principle of equal treatment adding little to HRA:ECHR Art 14 in a case where Art 14 engaged); {55.1.18} (consistency as an administrative law principle); R (British Civilian Internees – Far Eastern Region) v Secretary of State for Defence [2003] EWCA Civ 473 [2003] QB 1397 at §§85-86 (leaving open “whether there is a free-standing principle of equality in English domestic law”, or whether merely part of the Wednesbury principle); {P54} (substantive unfairness). 55.1.9 Protection from discrimination at common law. R v Secretary of State for Trade and Industry, ex p BT3G Ltd [2001] EWCA Civ 1448 [2001] EuLR 822 (CA asking whether difference in treatment between licence bidders objectively justified, so as not to be discriminatory under English public law); R (L) v Manchester City Council [2001] EWHC Admin 707 (2002) 5 CCLR 268 at §78(4) (effect of policy “fundamentally discriminatory”); Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §25 (Lord Sumption: “A measure may … be irrational … by reason of its being discriminatory in some respect that is incapable of objective justification”). 55.1.10 Discrimination lacking objective justification as unreasonableness. R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §55 (Lord Sumption, asking: “Was it irrational …? In my opinion it was not, because although the decision … was discriminatory, the discrimination was objectively justified”), §27 (Lord Carnwath, discussing Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §25, as: “expressed in terms which could be applied equally to common law rationality. Lord Sumption … spoke of a measure which, while responding to a real problem, may nevertheless be ‘irrational or disproportionate by reason of its being discriminatory in some respect that is incapable of objective justification’. He gave as the ‘classic’ illustration A v SSHD [2004] UKHL 56 [2005] 2 AC 68, in which it was held by the House of Lords that a derogation from the Human Rights Convention permitting the detention of non-nationals considered a risk to national security, was … [not] a rational response to the terrorist threat, because it applied only to foreign nationals … He quoted Lord Hope at §32: ‘the distinction … raises an issue of discrimination … But, … the distinction is irrational …’”), §28 (discussing R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin): “Having rejected as baseless the various reasons put forward for the distinction, … Stanley Burnton J concluded that there was no lawful justification for the exclusion of mushroom pickers from the lower rate. He cited … Lord Donaldson MR’s reference to the ‘cardinal principle of public administration that all persons in a similar position should be treated similarly’… Stanley Burnton J concluded that the exclusion … was ‘Wednesbury unreasonable and unlawful’, or in other words irrational”). 55.1.11 Partial and unequal measures. Kruse v Johnson [1898] 2 QB 91 (DC), 99 (bylaw would be unlawful if “partial or unequal in its operation”); R (Britcits) v SSHD [2017] EWCA 676

P55 Consistency/equal treatment

Civ 368 [2017] 1 WLR 3345 at §71 (describing Kruse v Johnson as a species of “common law … unreasonableness”); R v Immigration Appeal Tribunal, ex p Manshoora Begum [1986] Imm AR 385 (judicial review granted where decision based on immigration rule which satisfied Kruse test, being “‘partial and unequal’ in its operation as between different classes”). 55.1.12 Substantive unfairness: the legal criteria of reasonableness and legitimate expectation. {54.1.5} 55.1.13 Equal treatment: not a freestanding ground for judicial review. R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §24 (Lord Carnwath: “the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law”); Pathan v SSHD [2018] EWCA Civ 2103 [2018] 4 WLR 161 at §69 (“in Gallaher, the Supreme Court held that, while the principle of equal treatment could be regarded as an aspect of rational behaviour, it does not in itself constitute a freestanding ground for judicial review”); Turani v SSHD [2019] EWHC 1586 (Admin) at §133 (Laing J, doubting “whether there is a free-standing common law principle of equality” after Gallaher); R (British Telecommunications Plc) v HM Treasury [2018] EWHC 3251 (Admin) [2019] Pens LR 9 at §96 (Hamblen LJ and Whipple J: “equal treatment is not a distinct principle of domestic law but is to be judged by established public law concepts of irrationality and legitimate expectation”) (CA is [2020] EWCA Civ 1). 55.1.14 Equal treatment and fairness. R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 at §56 (Lord Hoffmann: “it would be unfair of the Secretary of State not to treat like cases alike in the sense of discriminating against someone upon [inadequate] grounds”); R (Durand Academy Trust) v Office for Standards in Education, Children’s Services and Skills [2018] EWCA Civ 2813 [2019] PTSR 1144 at §65 (Hamblen LJ: “if … the procedure for serious weakness/special measures cases is fair, the fact that the procedure in other cases may be different does not undermine that conclusion. Fairness does not require equivalence”); R v Special Adjudicator, ex p Kandasamy [1994] Imm AR 333 (not unfair to approach claimant’s case differently from that of fellow traveller), 340 (Hidden J, suggesting that “consistency as such is not a principle of administrative law; the governing principle is whether there has been unfairness such as to amount to an abuse of power”); R v SSHD, ex p Namusisi [1994] Imm AR 399, 401 (need for “fairness as between applicants”); {55.1.18} (consistency as an administrative law principle). 55.1.15 Procedural equal treatment: even-handedness. R (British Sky Broadcasting Ltd) v Central Criminal Court [2014] UKSC 17 [2014] AC 885 at §30 (Lord Toulson: “Equal treatment of the parties requires that each should know what material the other is asking the court to take into account in making its decision and should have a fair opportunity to respond to it. That is inherent in the concept of an ‘inter partes’ hearing”); R v National Lottery Commission, ex p Camelot Group Plc [2001] EMLR 3 (conspicuous unfairness in tendering process), discussed in R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §33. 55.1.16 Equal treatment and reasonableness: drawing unreasonable distinctions. R (E) v Nottinghamshire Healthcare NHS Trust [2009] EWCA Civ 795 [2010] PTSR 674 at §90 (Lord Clarke and Moses LJ, accepting that the common law “principle of equality … simply means that distinctions between different groups must be drawn on a rational basis. It is thus no more than an example of the application of Wednesbury … rationality”), §91 (justification here in any event); Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §98 (Chamberlain J: “the Supreme Court has made clear in [R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96] that ‘unequal treatment’ is a ground for review if and only if it involves drawing irrational distinctions”); R (Aweys) v Birmingham City Council [2008] EWCA Civ 48 [2008] 1 WLR 2305 at §45 (housing policy unlawful because unjustified distinction between categories of homeless both owed the same statutory duty); R (Durand Academy Trust) v Office for Standards in Education, Children’s Services and Skills [2018] EWCA Civ 2813 [2019] PTSR 1144 at §82 (Sir Terence Etherton MR, referring to there being a “cogent explanation as to why 677

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the different treatment … is justified”); R (Kelsall) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWHC 459 (Admin) at §63 (compensation provisions “operate unfairly as between different farmers and generally; they fail to take account of the different values of premium breeds and thus discriminate … without justification; and they produce arbitrary effects. Reasons have been put forward to justify provisions of the order that do not bear scrutiny and are irrational”); R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) at §74 (exclusion a breach of the “cardinal principle of public administration that all persons in a similar position should be treated similarly” and so “unreasonable and unlawful”); R v Director General of Electricity Supply, ex p Scottish Power Plc 3 February 1997 unreported (no valid or rational basis for treating electricity supply companies differently); R (Patel) v SSHD [2012] EWHC 2100 (Admin) at §§114, 141 (decision unlawful for failure to provide a “rational reason” for treating the claimant differently from others); R (Gurung) v Ministry of Defence [2002] EWHC 2463 (Admin) at §§35-39 (exclusion from compensation unreasonable by reference to common law principle of equality). 55.1.17 Equal treatment and reasonableness: unreasonable failure to treat differently. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §73 (considering “the rationality of failing to make an exception for this particular group of people”), §76 (“It is irrational to refuse to sort out this problem”); R v SSHD, ex p Mersin [2000] INLR 511, 522E (“In this case the [defendant] ought to have treated the [claimant] and those in a similar position differently to other categories of cases”); R v Tower Hamlets LBC, ex p Uddin (2000) 32 HLR 391, 403 (housing transfer points scheme irrational because failing to distinguish between households with markedly different needs); R (Kaur) v Ealing LBC [2008] EWHC 2062 (Admin) at §52 (unlike cases must be treated differently); cf Arorangi Timberland Ltd v Minister of the Cook Islands National Superannuation Fund [2016] UKPC 32 [2017] 1 WLR 99 at §74 (discrimination can be unjustified failure “to treat differently persons whose situations are significantly different”); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §111 (“Uniformity is not the same thing as equality”); cf R (Naidu) v SSHD [2016] EWCA Civ 156 [2016] 1 WLR 3775 (unreasonable to repeat the previous refusal of a visa application without recognising that different evidence was now relied on). 55.1.18 Consistency as an administrative law principle. R (Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin) at §33 (Thornton J: “When an administrative decision is vested in a public authority that falls to be exercised on a potentially indefinite number of occasions, the law requires steps be taken to achieve reasonable consistency … in its exercise”); R (Mullen) v SSHD [2004] UKHL 18 [2005] 1 AC 1 at §12 (Lord Bingham, describing the Secretary of State’s public law responsibilities in administering an ex gratia scheme as being to act “fairly, rationally, consistently and in a manner that does not defeat substantive legitimate expectations”); R (Mitocariu) v Central and North West London NHS Trust [2018] EWHC 126 (Admin) [2018] PTSR 1287 at §36 (“the well-recognised principle of public law that all persons in a similar position should be treated similarly and that any discretionary power ‘must not be exercise arbitrarily or with partiality as between individuals or classes potentially affected by it’”); R (Hussain) v SSHD [2012] EWHC 1952 (Admin) at §46 (James Dingemans QC: “There is an established principle of public law that ‘all persons in a similar position should be treated similarly’. … Any discretionary public law power ‘must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it’”); R (O’Brien) v Independent Assessor [2007] UKHL 10 [2007] 2 AC 312 at §30 (Lord Bingham: “It is generally desirable that decision-makers, whether administrative or judicial, should act in a broadly consistent manner”, adding that no requirement to follow previous decisions if considered erroneous); N v SSHD [2005] UKHL 31 [2005] 2 AC 296 at §9 (“in principle the law should seek to treat like cases alike. A similar principle applies to the exercise of administrative discretions”); Secretary of State for Defence v Percy [1999] 1 All ER 732, 742b (“the principles of public law … include principles of … equality before the law”); R v SSHD, ex p Urmaza [1996] COD 479 (legal principle of consistency in the exercise of public law powers); R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 at 678

P55 Consistency/equal treatment

§46 (“Like cases must be treated alike”); R v Hertfordshire County Council, ex p Cheung The Times 4 April 1986 (see transcript) (Sir John Donaldson MR: “it is a cardinal principle of good public administration that all persons who are in a similar position shall be treated similarly”); {51.1.8} (duty of sufficient inquiry: consistency and past decisions); {55.3.15} (departure from action taken in other like cases). 55.1.19 Unjustified inconsistency: generally covered by legal criterion of reasonableness. R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §50 (Lord Sumption: “Consistency of treatment is … ‘a general axiom of rational behaviour’. The common law principle of equality is usually no more than a particular application of the ordinary requirement of rationality imposed on public authorities”), §26 (Lord Carnwath: “in domestic administrative law issues of consistency may arise, but generally as aspects of rationality”). 55.1.20 Unjustified inconsistency as unlawfulness. R (McMorn) v Natural England [2015] EWHC 3297 (Admin) [2016] PTSR 750 at §149 (Ouseley J: “a decision made by a public authority is unlawful on the grounds of inconsistency if like cases are treated differently without a rational basis for the different treatment”), §180 (here, the “justification for the inconsistency … is illogical and unreasonable”); R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) at §74 (“the Board had no lawful justification for the exclusion of mushroom pickers from the MHW rate. ‘It is a cardinal principle of public administration that all persons in a similar position should be treated similarly’ (Lord Donaldson in [Cheung]). … This principle was infringed. The exclusion … was Wednesbury unreasonable and unlawful”); {55.1.10} (discrimination lacking objective justification as unreasonableness); {8.1.6} (equality/non-discrimination/ equal treatment in EU law). 55.1.21 Consistency/equal treatment in taxation matters. R (Hely-Hutchinson) v HMRC [2017] EWCA Civ 1075 [2018] 1 WLR 1682 at §38 (Arden LJ, describing as among the “duties which the law imposes on HMRC”, the “legal duty to the general body of taxpayers to treat taxpayers fairly and ‘to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise”, referring to R v Inland Revenue Commissioners, ex p National Federation of SelfEmployed and Small Businesses Ltd [1982] AC 617 (Lord Scarman) at 651E-G), §§53, 62 (“under the law about legitimate expectation, comparative unfairness may only be found to exist where parties are materially identically placed”); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 692 (treatment “may be unfair if other taxpayers similarly placed have been treated differently”); R v Commissioners of Customs and Excise, ex p British Sky Broadcasting Group [2001] EWHC Admin 127 [2001] STC 437 at §§6-8 (common ground that if Customs and Excise considered companies to be in an identical position and decided to treat one less favourably as a test case, would be a breach of the duty to act fairly), §33 (can be unfair disparate treatment where complaint is that ‘others too’ should have been treated in the same way), §35 (preferring view that taxpayer could in an appropriate case recover tax paid). 55.1.22 The ‘consistency principle’ in planning law. Davison v Elmbridge District Council [2019] EWHC 1409 (Admin) (previous similar planning decision and underlying reasons a relevant consideration) at §81 (“The consistency principle is given effect in planning decision via the test of material considerations”); R (Bates) v Maldon District Council [2019] EWCA Civ 1272 at §19 (“consistency in planning decision-making is not a principle of law, but a principle of good practice”; “necessary for a planning decision-maker to consider … whether there has been a material change of circumstances since an earlier decision in relation to a similar development or similar issue” but “is neither bound by the earlier decision nor bound to give that decision any particular weight”; “Where a planning decision-maker differs from an earlier decision-maker on a crucial planning issue … he is … required to … explain his reasons for disagreeing in terms of analysis”); Tate v Northumberland County Council [2018] EWCA Civ 1519 at §42 (“the officer ought to have recognized that the county council was now dealing with a ‘like’ case”); R (Bailey) v St Albans District Council [2020] EWHC 679

GROUNDS FOR JUDICIAL REVIEW

24 (Admin) [2020] PTSR 1270 at §§84-85 (“consistency principle” applicable to “decisions concerning different developments”); R (Irving) v Mid Sussex District Council [2019] EWHC 3406 (Admin) at §75 (“It is now well-established that a local planning authority ought to have regard to its previous similar decisions as material considerations, in the interests of consistency. It may depart from them, if there are rational reasons for doing so, and those reasons should be briefly explained”); Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin) at §87 (previous planning appeal decision bearing on the same issues a relevant consideration); Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 127 (Admin) [2019] PTSR 1302 at §28 (“a previous decision by a planning inspector on precisely the same issue … will be a material consideration for an inspector in which that point arises subsequently. … Where there is a basis for the earlier decision to be distinguished or departed from then that reason must be identified and the explanation justifying distinguishing the earlier decision must be explained”), §33 (failure to provide adequate reasons for departing from approach in earlier decision); Hallam Land Management Ltd v Secretary of State for Communities and Local Government [2018] EWCA Civ 1808 [2019] JPL 63 at §73 (“The principle of consistency in planning decision-making is not a principle of law. It is a principle of good practice”), §74 (“The principle … is exercised with a view to the public interest in planning decisions in like cases being consistent, or if inconsistency arises, a clear explanation for it being given in the second of the two decisions concerned”); R (Tate) v Northumberland County Council [2018] EWCA Civ 1519 at §25 (consistency principle), §44 (judicial review succeeding for failure to give reasons addressing the inconsistency with previous decision); Baroness Cumberlege v Secretary of State for Communities and Local Government [2018] EWCA Civ 1305 [2018] PTSR 2063 at §56 (“their circumstances were closely enough related on [a] crucial issue to call for a clear explanation of the Secretary of State’s approach in the second case if it was to diverge materially from the approach he had taken in the first”). 55.1.23 Consistency: previous immigration decision in the same case. R (FH) v SSHD [2020] EWHC 1482 (Admin) at §12 (discussing the approach to be taken in an immigration adjudicative decision to a previous adjudicative decision in the same case); R (Begum) v SSHD [2019] EWHC 1361 (Admin) at §19 (“the Secretary of State will be required in a situation where a passport has been previously issued to someone to give clear and cogent reasons why one should now be refused”); SSHD v BK (Afghanistan) [2019] EWCA Civ 1358 [2019] 4 WLR 111 at §44 (in deciding whether a “finding of fact should be carried forward”, tribunal not restricted to material post-dating the earlier decision, since “every tribunal must conscientiously decide the case in front of them”, but the tribunal “must be alive to the unfairness to the opposing party of having to relitigate a point on which they have previously succeeded particularly where the point was not then challenged on appeal”); R (Rahman) v SSHD [2015] EWHC 1146 (Admin) [2015] ACD 107 (SSHD’s decision as to passport renewal unreasonable given finding of fact made by immigration appeal tribunal); AA (Somalia) v SSHD [2007] EWCA Civ 1040 [2008] INLR 1 at §§53-57 (where second immigration judge faces same issue and same evidence as already addressed, should regard the issue as settled by first immigration judge’s determination); R v SSHD, ex p Golam Mowla [1992] 1 WLR 70 (“clearly … desirable that so far as possible decisions made on the same facts about an applicant … should be consistent with each other”). 55.1.24 Consistency and even-handedness: other illustrations. R (Abbey Mine Ltd) v Coal Authority [2008] EWCA Civ 353 at §34 (duty of evenhandedness between rival licence bidders); R (Hill) v SSHD [2007] EWHC 2164 (Admin) (Secretary of State breaching duty to “have an even-handed approach to the exercise of [his] discretion”, because practice of (a) accepting adverse recommendations of Parole Board while (b) actively questioning favourable ones); Manzeke v SSHD [1997] Imm AR 524, 529 (“Consistency in the treatment of asylum seekers is important in so far as objective considerations, not directly affected by the circumstances of the individual asylum seeker, are involved”); SSHD v Mohammed Yasin [1995] Imm AR 118, 120-121 (“of course decisions should be consistent. There should be a consistent application of principle and a consistent application of rules. … But situations are never precisely similar”); Firmin Gnali v Immigration Appeal Tribunal [1998] Imm AR 680

P55 Consistency/equal treatment

331, 336 (apparently inconsistent decisions “may stem from error” and “engender a sense of grievance”); R v Cheshire Justices, ex p Sinnott The Times 26 October 1994 (quashing drinkdriving convictions as likely to give rise to grievance where acquittals in materially identical cases); R v Secretary of State for the Environment, ex p Oxford City Council 28 February 1998 unreported (Secretary of State entitled to refuse to make individual exception, given principle of consistency); R v Secretary of State for Defence, ex p Wilkins The Times 26 July 2000 at §55 (“if there had been an erroneous departure from the rules in the past, the Ministry was not under any obligation to repeat those errors in a wish to be consistent”) R (L) v Manchester City Council [2001] EWHC Admin 707 (2002) 5 CCLR 268 (arbitrary and inconsistent to set foster carer payments at lower level for relatives and friends than for other carers); R v SSHD, ex p Northumbria Police Authority (1993) 5 Admin LR 489, 504C-E (“Undoubtedly … the decisions on these applications were wholly inconsistent with the decision on the application against Derbyshire … [but] there is no evidence that it amounted to any sort of an abuse of discretion”); R v Preston Supplementary Benefits Appeal Tribunal, ex p Moore [1975] 1 WLR 624, 632A-B; R v National Security Commissioner, ex p Stratton [1979] QB 361, 369A-C, 374D-E; Presho v Insurance Officer [1984] 1 AC 310, 319B; Cartlidge v Chief Adjudication Officer [1986] QB 360, 377E-G; R v Birmingham City Council, ex p Sheptonhurst Ltd [1990] 1 All ER 1026 (where sex shop licence granted previously, need for rational explanation of why inappropriate to grant renewal); L v Salford City Council [1998] ELR 28, 35E (conclusion of fact “neither inconsistent nor perverse”). 55.1.25 Interests of consistency/previous decisions as relevancy: prior action in the same case. R (Boparan) v Governor of Stoke Heath Prison [2019] EWHC 2352 (Admin) [2019] ACD 127 at §§19, 36 (unlawful to reverse decision to release on home detention curfew, absent a material change of circumstances or fundamental flaw in earlier decision); R (Cullen) v Parole Board [2019] EWHC 2703 (Admin) [2019] ACD 124 (unfair to revoke previous direction that panel should include a psychologist), §15 (Lewis J: “no clear reason has been given for departing from the earlier direction”); Old Cooperative Day Nursery Ltd v Ofsted [2016] EWHC 1126 (Admin) [2016] ACD 75 (failure to have regard to history and previous reports), §72 (“it is of critical importance to ensure that … inspections are not random, one-off events in which absolutely everything turns on what happens on the day of the inspection. Instead, inspections must be carried out on a consistent basis, ensuring that each one is part of a continuum”); R (Watson) v Dartford Magistrates’ Court [2005] EWHC 905 (Admin) (magistrates only entitled to revoke earlier order refusing adjournment where “change of circumstances”); R (Saunders) v Tendring District Council [2003] EWHC 2977 (Admin) at §62 (officer’s report seriously misleading because did not present members with proper opportunity to consider whether still adhered to earlier objections, and if not why not); R v Birmingham City Council, ex p Sheptonhurst Ltd [1990] 1 All ER 1026, 1035j (“when considering an application for renewal the local authority has to give due weight to the fact that a licence was granted in the previous year and indeed for however many years before that”); SSHD v AF [2008] EWCA Civ 117 (previous findings in control order proceedings not binding in later hearing); R v Chief Constable of West Yorkshire, ex p Wilkinson [2002] EWHC 2353 (Admin) at §74 (“Inconsistency is not necessarily to be equated with irrationality, but if a decision is reached in a particular case which cannot stand as a matter of consistency with another decision reached in the same case, then that should … be taken into consideration in deciding whether the decisions under attack are decisions properly open to be made and not irrational”); {55.3.16} (departure from action in same case). 55.1.26 Interests of consistency/previous decisions as relevancy: action in similar cases. R (O’Brien) v Independent Assessor [2007] UKHL 10 [2007] 2 AC 312 at §30 (no duty to follow previous decisions if considered erroneous); R (N) v Independent Appeal Panel of Barking and Dagenham LBC [2008] EWHC 390 (Admin) at §20 (previous related decision not a relevancy); R v SSHD, ex p Walsh The Times 18 December 1991 (DC) (in setting tariff, length of terms served by claimant’s co-defendants a relevancy) (CA is at (1993) 5 Admin LR 138); R (Hussain) v SSHD [2012] EWHC 1952 (Admin) at §56 (decision flawed by “failure to consider the cases of other persons involved” in same incident, “thereby not treating like cases alike”); {55.3.15} (departure from action taken in other like cases). 681

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55.1.27 Policy guidance promotes consistency/equal treatment. 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 (Munir) v SSHD [2012] UKSC 32 at §46 (SSHD entitled to have a policy as to grant of leave to enter or remain outside the immigration rules); R (S) v London Borough of Brent [2002] EWCA Civ 693 [2002] ELR 556 at §16 (“the promotion of consistency is a necessary purpose of guidance”); 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, given (i) the principle of consistency (and avoidance of arbitrariness), (ii) the duty to have regard to relevancies, (iii) the avoidance of over-rigidity, and (iv) the need to give effect to legitimate expectations); R (Walmsley) v Lane [2005] EWCA Civ 1540 [2006] LGR 280 at §55 (public authority “risks being castigated for inconsistency if it does not have a policy”); British Oxygen Co Ltd v Board of Trade [1971] AC 610, 625D-E (policy appropriate where dealing “with a multitude of similar applications”), 631A-C (“both reasonable and right that the Board should make known to those interested the policy it was going to follow”); R v SSHD, ex p Venables [1998] AC 407 (CA), 432G (wide discretion “which calls out for the development of policy as to the way it will in general be exercised. This would assist in providing consistency and certainty which are highly desirable in an area involving the administration of justice where fairness is particularly important”); In re Findlay [1985] AC 318, 335D-H (“the complexities are such that an approach based on a carefully formulated policy could be said to be called for”); {50.4} (fetter by inflexible policy). 55.1.28 Policy guidance: need/duty to have a published policy. 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”), §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 (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 [2005] 1 WLR 2219 (considering fairness of fast-track asylum process) at §18 (asylum system needing “a clearly stated procedure – in public law, a policy – which recognises that it will be unfair not to enlarge the standard timetable in a variety of instances”); R (Teleos Plc) v Customs and Excise Commissioners [2005] EWCA Civ 200 [2005] 1 WLR 3007 at §24 (“the Commissioners should make a clear statement of their policy and they should publish the criteria by which they exercise the discretion to make interim payments”); B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 [2005] 1 WLR 3796 at §43 (Sedley LJ: “It is axiomatic in modern government that a lawful policy is necessary if an executive discretion of the significance of the one now under consideration is to be exercised, as public law requires it to be exercised, consistently from case to case but adaptably to the facts of individual cases”); R v Governors of the Bishop Challoner Roman Catholic Comprehensive Girls’ School, ex p Choudhury [1992] 2 AC 182, 193E (“it is absolutely necessary that the school should have an admissions policy of some kind”); R v Legal Aid Board, ex p Duncan [2000] COD 159 (transcript at §581) (not irrational to launch scheme without spelling out principles on which would exercise discretion, but transparency desirable and so defendant asked to explain the principles); R (Grogan) v Bexley NHS Care Trust [2006] EWHC 44 (Admin) [2006] LGR 491 at §§91,94 (need for certainty, criteria too vague here); {6.2.3} (duty to publish policy guidance/change in policy guidance); {6.2.6} (duty of adherence to policy guidance).

55.2 Statutory equality duties. Alongside their duties arising under HRA s.6 not to act incompatibly with HRA:ECHR Article 14, and their public law duties at common law, public authorities owe important statutory equality duties under the Equality Act 2010. These include the duties not directly or indirectly to discriminate on a protected ground. They also include important duties of ‘due regard’ in the proactive and integral promotion of equality: the public sector equality duty (PSED). Judicial review is a remedy 682

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available and frequently used in cases involving breach by public authorities of statutory equality duties. 55.2.1 Statutory duty not to discriminate in the exercise of a public function. Equality Act 2010 s.29(6) (“A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination”), s.29(1)-(2) (service provider’s duty not to discriminate); s.150(5) (“A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998”); {9.4} (HRA s.6: compatible public authority action); 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 the Equality Act 2010, which makes it unlawful … to discriminate on [specified] grounds in the exercise of [the] powers”). 55.2.2 Direct discrimination: s.13. Equality Act 2010 s.13 (“Direct discrimination. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim. (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. (4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner. (5) If the protected characteristic is race, less favourable treatment includes segregating B from others. (6) If the protected characteristic is sex – (a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; (b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth. (7) Subsection (6)(a) does not apply for the purposes of Part 5 (work). (8) This section is subject to sections 17(6) and 18(7)”); R (Coll) v Secretary of State for Justice [2017] UKSC 40 [2017] 1 WLR 2093 (distribution of approved premises for women constituting direct sex discrimination, for which no justification yet shown); R (C) v Secretary of State for Work and Pensions [2017] UKSC 72 [2017] 1 WLR 4127 at §§40-43 (no direct discrimination violating s.13). 55.2.3 Discrimination arising from disability: s.15. Equality Act 2010 s.15 (“Discrimination arising from disability. (1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability”); R (Fisher) v Durham County Council [2020] EWHC 1277 (Admin) [2020] ACD 85 (noise abatement notice not a breach of s.15). 55.2.4 Indirect discrimination: s.19. Equality Act 2010 s.19 (“Indirect discrimination. (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. (3) The relevant protected characteristics are – age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation”); Essop v Home Office [2017] UKSC 27 [2017] 1 WLR 1343 (SC discussing the approach to indirect discrimination contravening the Equality Act 2010); R (Ward) v Hillingdon LBC [2019] EWCA Civ 692 [2019] PTSR 1738 (housing allocation policy indirect discrimination which not justified yet); R (Buxton) v Secretary of State for Work and Pensions [2018] EWHC 2196 (Admin) [2019] PTSR 502 (access to work 683

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payment cap not breaching s.19); R (H) v Ealing LBC [2017] EWCA Civ 1127 [2018] PTSR 541 (housing allocation policy compatible with s.19, as justified indirect discrimination); R (C) v Secretary of State for Work and Pensions [2017] UKSC 72 [2017] 1 WLR 4127 at §44 (no indirect discrimination violating s.19); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §143 (coroner’s policy unlawful indirect discrimination); R (Diocese of Menevia) v Swansea City and County Council [2015] EWHC 1436 (Admin) [2015] PTSR 1507 at §24, 81 (school transport policy unlawful as indirect race discrimination); Moore v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) at §127 (calling-in of planning permissions relating to travellers and green belt land indirect race discrimination); {37.1.9} (proportionality: indirect discrimination (Equality Act 2010 s.19)). 55.2.5 Reasonable adjustments duty (RAD): ss.20, 29. Equality Act 2010 ss.20, 29(7) (“A duty to make reasonable adjustments applies to – (a) a service-provider (and see also section 55(7)); (b) a person who exercises a public function that is not the provision of a service to the public or a section of the public”); R (ASK) v SSHD [2019] EWCA Civ 1239 at §§131, 134, 244 (breach of RAD where mentally ill detainees given no assistance in understanding reasons or making representations regarding detention decisions, applying VC v SSHD [2018] EWCA Civ 57 [2018] 1 WLR 4781); R (EG) v Parole Board [2020] EWHC 1457 (Admin) at §133 (no RAD breach here); R (Atherton) v Secretary of State for Work and Pensions [2019] EWHC 395 (Admin) (DWP compliance with RAD as to benefits-related communication); R (Taylor) v Secretary of State for Justice [2015] EWHC 3245 (Admin) [2016] PTSR 446 at §§63-67 (RAD complied with). 55.2.6 Public sector equality duty (PSED): s.149 (general). Equality Act 2010 s.149 (“Public sector equality duty. (1) A public authority must, in the exercise of its functions, have due regard to the need to – (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to – (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to – (a) tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act. (7) The relevant protected characteristics are – age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation. (8) A reference to conduct that is prohibited by or under this Act includes a reference to – (a) a breach of an equality clause or rule; a breach of a non-discrimination rule. (9) Schedule 18 (exceptions) has effect”), s.150 (“Public authorities and public functions. (1) A public authority is a person who is specified in Schedule 19. (2) In that Schedule – Part 1 specifies public authorities generally; Part 2 specifies relevant Welsh authorities; Part 3 specifies relevant Scottish authorities. (3) A public authority specified in Schedule 19 is subject to the duty imposed by section 149(1) in relation to the exercise of all of its functions unless subsection (4) applies. (4) A public authority specified in that Schedule in respect of certain specified functions is subject to that 684

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duty only in respect of the exercise of those functions. (5) A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998”); {9.4} (HRA s.6: compatible public authority action); Hotak v Southwark LBC [2015] UKSC 30 [2016] AC 811 at §§73-76 (identifying “valuable judgments in the Court of Appeal” explaining what the PSED requires), §78 (identifying questions on which reviewing officer needs to focus sharply); Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334 [2020] 1 WLR 584 at §21 (no general rule that PSED breach must result in decision being set aside). 55.2.7 PSED: applicability. R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §§216, 220 (PSED applicable to decisions leading to the making of delegated legislation), §236 (PSED inapplicable to “the preparation and promotion of an Act of Parliament or an amendment to an Act of Parliament”); R (Pritchard) v Secretary of State for Work and Pensions [2020] EWHC 1495 (Admin) at §122 (PSED applicable to decisions to commence primary legislation); Turani v SSHD [2019] EWHC 1586 (Admin) (extra-territoriality and PSED); R (Horeau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) [2019] 1 WLR 4105 (DC) at §164 (aspects of the PSED applicable to decision in London regarding individuals outside the UK) (not pursued in CA: [2020] EWCA Civ 1010 at §81); R (Howard) v Official Receiver [2013] EWHC 1839 (Admin) [2014] QB 930 (official receiver exercising a judicial function, so PSED inapplicable). 55.2.8 PSED: underlying principles. Haque v Hackney LBC [2017] EWCA Civ 4 [2017] PTSR 769 at §§21-23 (Briggs LJ: “The relevant underlying principles are as follows. First, the aim of the PSED (as of other equality duties) is to bring equality issues into the mainstream, so that they become an essential element in public decision making. … Secondly, the duty is a matter of substance rather than of form. It requires that the decision maker be aware of the duty to have due regard to the relevant matters. … The duty must be exercised in substance, with rigour and with an open mind. It is not a question of ticking boxes. … Third, the concept of due regard is to be distinguished from a requirement to give the PSED considerations specific weight. It is not a duty to achieve a particular result”). 55.2.9 PSED: the Bracking principles. Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at §26 (McCombe LJ: “(1) … [E]quality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements. … (3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice. … (4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a ‘rearguard action’, following a concluded decision. … (5) … (i) The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters; (ii) The duty must be fulfilled before and at the time when a particular policy is being considered; (iii) The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument; (iv) The duty is non-delegable; and (v) Is a continuing one; (vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty. (6) ‘[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.’ … (7) Officials reporting to or advising Ministers/ other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be ‘rigorous in both enquiring and reporting to them’. … (8) … (i) … Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then … it is for the decision maker to decide how much weight should be given to the various factors informing the decision. … The concept of ‘due regard’ requires the court to ensure that 685

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there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors …. ‘the public authority … will … have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons’ disabilities in the context of the particular function under consideration’”); R (Pritchard) v Secretary of State for Work and Pensions [2020] EWHC 1495 (Admin) at §§86-90, 119-121 (doubting principle (4) of Bracking); R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058 at §175 (summarising the principles). 55.2.10 PSED: other observations/summaries. R (British Medical Association) v Secretary of State for Health and Social Care [2020] EWHC 64 (Admin) [2020] Pens LR 10 at §141 (“The duty is personal to the decision maker … who must consciously direct his or her mind to the obligations; the exercise is a matter of substance which must be undertaken with rigour, so that there is a proper and conscious focus on the statutory criteria and proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them. Whilst there is no obligation to carry out an Equality Impact Assessment …, if such an assessment is not carried out it may be more difficult to demonstrate compliance with the duty”); Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445 at §§17-18; London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB) [2020] HLR 3 at §42 (relevant factors in possession claims); R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58 [2016] 1 WLR 4550 at §67 (“the PSED is a duty on the part of a public authority to follow a form of due process, that is, an obligation to have due regard to the need to eliminate discrimination, and advance equality of opportunity, between those with and without a relevant protected characteristic”); R (SG) v SSHD [2016] EWHC 2639 (Admin) at §329 (Flaux J: “what is required is a realistic and proportionate approach to evidence of compliance with the PSED, not micro-management or a detailed forensic analysis by the court … the PSED, despite its importance, is concerned with process not outcome, and the court should only interfere in circumstances where the approach adopted by the relevant public authority was unreasonable or perverse”). 55.2.11 PSED breached: illustrations. R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058 at §201 (defendant not having “done all they reasonably could to fulfil the PSED”); R (British Medical Association) v Secretary of State for Health and Social Care [2020] EWHC 64 (Admin) [2020] Pens LR 10 at §146 (“nowhere near” fulfilling PSED duties); R (ASK) v SSHD [2019] EWCA Civ 1239 at §§130, 244 (failure to enquire into mental incapacity a breach of PSED); R (Ward) v Hillingdon LBC [2019] EWCA Civ 692 [2019] PTSR 1738 at §74 (failure to consider position of non-UK nationals meaning PSED breach); Kannan v Newham LBC [2019] EWCA Civ 57 [2019] HLR 363 at §23 (failure to address claimant’s individual position); R (Williams) v Caerphilly County Borough Council [2019] EWHC 1618 (Admin) §36 (no “proper and conscious consideration of the [PSED] criteria”) (not challenged on appeal [2020] EWCA Civ 296 [2020] PTSR 1130 at §5); R (Law Centres Federation Ltd) v Lord Chancellor [2018] EWHC 1588 (Admin) at §105 (“the information collated … failed to identify in sufficiently unambiguous terms all the adverse effects that the proposed changes could have on users of the service (whose constituents contain a disproportionate number of people with protected characteristics under the Act)”); R (Buckley) v Bath and East Somerset Council [2018] EWHC 1551 (Admin) [2019] PTSR 335 at §40 (defendant “did not in fact have due regard to the impact on the elderly and disabled persons of granting an application which might lead to the demolition of their existing homes”); R (Coll) v Secretary of State for Justice [2017] UKSC 40 [2017] 1 WLR 2093 at §§7, 42, 44 (PSED non-compliance meaning Secretary of State currently unable to justify direct discrimination); Moore v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) at §134; R (Cushnie) v Secretary of State for Health [2014] EWHC 3626 (Admin) [2015] PTSR 384 at §110. 686

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55.2.12 PSED not breached: illustrations. R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58 [2016] 1 WLR 4550 at §§69-70 (no PSED breach where gender-based impact considered, albeit not specifically for a subset of affected women); Hotak v Southwark LBC [2015] UKSC 30 [2016] AC 811 at §82 (no PSED breach); McMahon v Watford Borough Council [2020] EWCA Civ 497 [2020] PTSR 1217; R (Pritchard) v Secretary of State for Work and Pensions [2020] EWHC 1495 (Admin) at §127 (PSED complied with); R (Leighton) v Lord Chancellor [2020] EWHC 336 (Admin) [2020] ACD 50 at §82 (no breach where no decision yet taken); R (L) v Buckinghamshire County Council [2019] EWHC 1817 (Admin) at §79; R (Hackney LBC) v Secretary of State for Housing and Local Government [2019] EWHC 1438 (Admin) at §77 (“the Secretary of State did sufficiently confront the evidence of what the practical impacts of his decisions would be for people with protected characteristics”); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §151 (coroner did have due regard to PSED); R (Aspinall) v Secretary of State for Work and Pensions [2014] EWHC 4134 (Admin) [2015] ACD 22 (no PSED breach in closure of independent living fund). 55.2.13 HRA:ECHR Art 14. {59.8} (Article 14: non-discrimination); {9.4} (HRA s.6).

55.3 Unjustified ‘departure’. There are a number of situations where a public body’s ‘departure’ from a legally relevant position, which it or someone else has adopted, will require a good or cogent reason (justification) if it is to withstand scrutiny. Such cases are often an example of the contextual (nuanced) approach to common law reasonableness review. They may involve a legally relevant position being attributed an enhanced weight. Put another way, they can involve a need for reasoning which confronts the substance of the legally relevant position and identifies a sufficiently weighty reason for deviating from it. There are many different ‘legally relevant positions’, departure from which has been held on the facts to call for cogent reasons, if it is to be upheld by the Court. They include departure from: conduct engendering a legitimate expectation; policy guidance; an external body’s findings; action in other like cases; and prior action in the same case. 55.3.1 Departure from a legitimate expectation. {P41} (legitimate expectation); {54.2} (unjustified breach of a substantive legitimate expectation); {54.2.6} (substantive legitimate expectation: proportionality test (justifying the impact on the legitimate expectations)); {61.1.16}-{61.1.21) (procedural legitimate expectation). 55.3.2 Departure from policy guidance. {6.2.6} (duty of adherence to policy guidance); {6.2.9} (duty to justify ‘departure’ from policy guidance). 55.3.3 Adequacy of reasons: ‘departure’ situations. {64.2.16}-{16.2.20} 55.3.4 Unjustified departure from independent body’s findings/approach: general. R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787 at §66 (Lord Neuberger: “In order to decide the extent to which a decision-maker is bound by a conclusion reached by an adjudicative tribunal in a related context, regard must be had to the circumstances in which, and the statutory scheme within which, (i) the adjudicative tribunal reached its conclusion, and (ii) the decision-maker is carrying out his function. In particular, the court will have regard to the nature of the conclusion, the status of the tribunal and the decision-maker, the procedure by which the tribunal and decision-maker each reach their respective conclusions (eg, at the extremes, (i) adversarial, in public, with oral argument and testimony and cross-examination, or (ii) investigatory, in private and purely on the documents, with no submissions), and the role of the tribunal and the decision-maker within the statutory scheme”). 55.3.5 Unjustified departure from a formal decision. R v Cardiff County Council, ex p Sears Group Properties Ltd [1998] 3 PLR 55, 64B-F (“where a formal decision has been made on a particular subject-matter or issue affecting private rights by a competent public authority, that decision will be regarded as binding on other authorities directly involved, unless and until circumstances change in a way that can be reasonably found to undermine the basis of the original decision”); {54.2.10} (holding the public authority to its binding determinations). 687

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55.3.6 Unjustified departure from position of independent statutory consultee. R (Crompton) v South Yorkshire Police and Crime Commissioner [2017] EWHC 1349 (Admin) [2018] 1 WLR 131 at §146 (statutory duty to “have regard” to the views of HM Chief Inspector of Constabulary), §150 (“to ensure that an independent view is heard and seriously considered”), §156 (constituting “guidance of a type which any [Police and Crime Commissioner] should consider with great care, and from which he should depart only if he has cogent reasons for doing so”), §159 (here, “failed to provide cogent reasons”). 55.3.7 Unjustified departure from a tribunal. R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787 at §§59, 130, 145 (Attorney General not entitled to depart from tribunal’s decision in relation to freedom of information and public interest because taking a different view, but only if properly explained and solid reasons), discussed in R (Roszkowski) v SSHD [2017] EWCA Civ 1893 [2018] 1 WLR 2848 at §§19-30; R (S) v Camden LBC [2018] EWHC 3354 (Admin) at §79 (local authority not entitled to ignore fundamental change ordered by tribunal in special educational needs case); R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2003] UKHL 58 [2004] 2 AC 280 (approved social worker entitled to seek compulsory mental health detention on new information, despite mental health review tribunal’s decision ordering discharge); R (IT) v Secretary of State for Justice [2008] EWHC 1707 (Admin) (no new basis for Secretary of State to recall patient following discharge decision of mental health review tribunal). 55.3.8 Unjustified departure from tribunal determination/finding: immigration cases. MA (Pakistan) v SSHD [2019] EWCA Civ 1252 at §§33-34 (change in the law constituting a proper reason for deportation notwithstanding earlier favourable tribunal decisions); Ullah v SSHD [2019] EWCA Civ 550 [2019] Imm AR 1011 at §§42-43 (SSHD able to depart from tribunal decision where deception shown by fresh evidence satisfying Ladd v Marshall test); R (Roszkowski) v SSHD [2017] EWCA Civ 1893 [2018] 1 WLR 2848 (SSHD entitled to withhold consent to bail on a rational basis, having regard to FTT’s decision to the contrary); Jafar Danaie v SSHD [1998] Imm AR 84 (SSHD could not rationally reject adjudicator’s favourable credibility findings, unless demonstrably irrational or ignored relevancies, or fresh material); R v SSHD, ex p Linda Boafo [2002] EWCA Civ 44 [2002] 1 WLR 1919 (adjudicator’s decision binding under statutory scheme). 55.3.9 Unjustified departure from view of a review panel. R (A) v Newham LBC [2008] EWHC 2640 (Admin) [2009] 1 FCR 545 at §71 (failure to give clear and cogent reasons for rejecting recommendation of review panel as to suitability as adopters), applying R v Avon County Council, ex p M [1994] 2 FLR 1006, 1019F-1020D (council not entitled to depart from review panel “without a substantial reason and without having given that recommendation the weight it required”). 55.3.10 Unjustified departure from ombudsman finding/recommendation. R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36 [2009] QB 114 at §91 (although non-binding, Secretary of State needing good reason for rejecting ombudsman’s findings, beyond restatement of own otherwise rational view), applied in R (Equitable Members Action Group) v HM Treasury [2009] EWHC 2495 (Admin) at §66 (“a public body can only reject the findings of the ombudsman for ‘cogent’ reasons, that is for reasons other than merely a preference for its own view”), §68 (recommendations, test is unreasonableness), §97 (government response to findings “lacked cogency”), §112 (failure “to provide a cogent reason”); R (Gallagher) v Basildon District Council [2010] EWHC 2824 (Admin) [2011] PTSR 731 at §§26-27 (local ombudsman’s “findings” are “binding”, but no requirement of cogent justification for rejecting local ombudsman’s “recommendations”), §41 (unreasonable not to accept recommendation here). 55.3.11 Unjustified departure from position of a planning inspector. Horada v Secretary of State for Communities and Local Government [2016] EWCA Civ 169 [2016] PTSR 1271 at §54 (Secretary of State needed “to explain why he disagreed with the inspector, beyond merely stating his conclusion that he did”); R v Warwickshire County Council, ex p Powergen Plc [1997] 3 PLR 62 (irrational for council not to apply planning inspector’s conclusion 688

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as to road safety objections); R (Mayor of London) v Enfield LBC [2008] EWCA Civ 202 [2008] LGR 615 at §29 (unreasonable to depart from planning appeal adjudication on same issue absent an additional reason of substance); George Wimpey UK Ltd v First Secretary of State [2004] EWHC 2419 (Admin) at §39 (no adequate reasons for departing from planning inspector’s recommendations). 55.3.12 Unjustified departure from planning officer’s report. Horada v Secretary of State for Communities and Local Government [2016] EWCA Civ 169 [2016] PTSR 1271 at §37 (“fuller reasons are required” when planning committee “disagreeing with a considered and reasoned recommendation”, such as an “officer’s report to committee”). 55.3.13 Unjustified departure from parole board position. R (Walleed) v Secretary of State for Justice [2019] EWHC 984 (Admin) at §34 (Secretary of State must give “weight” to Parole Board’s assessment and recommendation); R (Kumar) v Justice Secretary [2019] EWHC 444 (Admin) [2019] 4 WLR 47 (Secretary of State entitled to operate policy as to departure for good reason from parole board’s recommendations); R (Goldsworthy) v Secretary of State for Justice [2017] EWHC 2822 (Admin) at §44 (Dinah Rose QC, explaining that the Secretary of State’s decision regarding recall was unreasonable, given the parole board’s “judgment … reached by an independent judicial body, which had considered all the evidence in the round, including at an oral hearing. There was no rational basis on which it was open to the defendant to reach a different view, in circumstances where the behaviour which had materialised was in substance the same”); R (Noye) v Secretary of State for Justice [2017] EWHC 267 (Admin) at §46 (“it was not open to the Secretary of State to depart from a finding of fact made by the Panel [of the Parole Board] unless he had good reason to do so”). 55.3.14 Whether unjustified ‘departure’: other contexts. MS (Pakistan) v SSHD [2020] UKSC 9 [2020] 1 WLR 1373 at §11 (FTT and UT “in no way bound by the decision reached under the [National Referral Mechanism]”); R (Clientearth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin) at §142 (“correct” to depart from Panel interpretation of policy which was wrong in law); R (Cullen) v Parole Board [2019] EWHC 2703 (Admin) [2019] ACD 124 (no good reason for revoking direction that panel should include a psychologist); R (Michalides) v Chief Constable of Merseyside [2019] EWHC 1434 at §§31, 36 (pension medical appeal board entitled to depart from selected medical practitioner’s diagnosis); R (East Meon Forge and Cricket Ground Protection Association) v East Hampshire District Council [2014] EWHC 3543 (Admin) [2015] ACD 45 at §109 (departure from views of statutory consultee requiring good reason); IA (Iran) v SSHD [2014] UKSC 6 [2014] 1 WLR 384 at §49 (in asylum decision, need for “close attention to [a] UNHCR decision and considerable pause before arriving at a different conclusion”); R (Nejad) v SSHD [2004] EWCA Civ 33 (Secretary of State needing “good reason” to depart from “judicial expression of view” by LCJ as to tariff); R (Viggers) v Pensions Appeal Tribunal [2006] EWHC 1066 (Admin) (need to spell out reasons for disagreeing with views of Veterans Agency Medical Services); M v SSHD [2003] EWCA Civ 146 [2003] 1 WLR 1980 (Secretary of State obliged to explain why taking different view from criminal court which had declined to recommend deportation); R v Secretary of State for Trade and Industry, ex p Thomson Holidays Ltd [2000] ECC 321 (Secretary of State acting ultra vires in responding to MMC report by reference to his own findings of fact rather than those made by the MMC); R (Bantamagbari) v City of Westminster [2003] EWHC 1350 (Admin) at §§7, 24 (intentional homelessness a question for notifying authority, so that notified authority not entitled to depart unless by seeking judicial review). 55.3.15 Departure from action taken in other like cases. HTV Ltd v Price Commission [1976] ICR 170, 185E-H (Lord Denning MR: “It is … the duty of the Price Commission to act with fairness and consistency in their dealings with manufacturers and traders. Allowing that it is primarily for them to interpret and apply the code, nevertheless if they regularly interpret the words of the code in a particular sense – or regularly apply the code in a particular way – they should continue to interpret it and apply it in the same way thereafter unless there is good cause for departing from it. At any rate they should not depart from it in any case where they have, by their conduct, led the manufacturer or trader to believe that he can safely act on 689

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that interpretation of the code or on that method of applying it, and he does so act on it. It is not permissible for them to depart from their previous interpretation and application where it would not be fair or just to do so”), 192A-G; R (Adriano) v Surrey County Council [2002] EWHC 2471 (Admin) [2003] Env LR 559 at §28 (unfair and unreasonable here to depart from the interpretation of a policy, having previously formally rejected the very interpretation now adopted); AA (Somalia) v SSHD [2007] EWCA Civ 1040 [2008] INLR 1 at §§62, 69-70, 77 (immigration judge should follow assessment of earlier immigration judge, albeit in case involving different parties, where same factual matrix and absent a very good reason to depart); JJ Gallagher Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1812 (Admin) [2002] 4 PLR 32 at §56 (where apparent inconsistency between grant of planning permission in one case and its refusal in another, need for an explanation); R v Department of Health, ex p Misra [1996] 1 FLR 128, 133 (divergent decisions “require the court to consider with the greatest care how such a result can be justified as a matter of law”); R (X) v Y School [2007] EWHC 298 (Admin) [2007] ELR 278 at §136 (times having moved on since previous policy applied to claimant’s siblings); {55.1.26} (interests of consistency/ previous decisions as relevancy: action in similar cases). 55.3.16 Departure from action in the same case. R (Carvill) v Commissioners of Inland Revenue [2003] EWHC 1852 (Admin) (not irrational, unfair or an abuse of power to repay tax where final judicial determination in earlier years unchallenged, albeit that successfully challenged in later years); R v Aylesbury Vale District Council, ex p Chaplin [1997] 3 PLR 55 (considering whether departure from earlier decision unlawful in the absence of an explanation; here, good and obvious reason for the later decision); R v East Hertfordshire District Council, ex p Beckham [1998] JPL 55, 59 (Lightman J: “Where a decision of the council is made to reverse a position taken twice in so recent a period, fairness and good administration require that the reasoning advanced by the council should be clear and unambiguous; it should not be contradictory, unsatisfactory or pregnant with possibilities of error”); R v Secretary of State for Education, ex p C [1996] ELR 93 (not necessary irrational for same decision-maker to assess same case differently at different times); R v Bradford Crown Court, ex p Crossling [2000] COD 107 (not an abuse of process for prosecution to make fresh application to Crown Court to extend custody time limit, where previously refused on basis of fundamental misapprehension of fact); R (C) v Sunderland Youth Court [2003] EWHC 2385 (Admin) (unlawful for court to make anti-social behaviour order, having declined one at an earlier hearing, without clearly explaining basis for doing so); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681 (unfair abuse of power because of prior treatment of late returns); {54.2.10} (holding the public authority to its binding determinations); {55.1.25} (interests of consistency/previous decisions as relevancy: prior action in the same case). 55.3.17 Entitled to depart: other illustrations. R (N) v Barking and Dagenham LBC Independent Appeal Panel [2009] EWCA Civ 108 [2009] LGR 711 (Panel entitled to decide not to take account of decision of Tribunal on same issue, but where now later and different facts); R (M) v Lambeth LBC [2008] EWHC 1364 (Admin) at §163 (council having good and sound reasons to depart from AIT’s finding as to age) (SC is [2009] UKSC 8 [2009] 1 WLR 2557); R v SSHD, ex p Harry [1998] 1 WLR 1737 (where Mental Health Review Tribunal’s recommendations leaving Secretary of State in doubt, entitled to look to Advisory Board for assistance); R (SmithKline Beecham) v Advertising Standards Authority 17 January 2001 unreported (British Dental Association approval of advertisement not binding; ASA entitled to depart from it in the circumstances); R v SSHD, ex p Doody [1994] 1 AC 531, 557H-559C (Home Secretary, in consulting the trial judge and Lord Chief Justice as to setting the penal ‘tariff’ for life prisoners, not obliged to follow the recommendation of those judges); R (Akhtar) v SSHD [2001] EWHC Admin 38 at §§23-24 (Danaie/Powergen principle not preventing Secretary of State from general recall of prisoner in breach of licence, despite magistrates’ decision of limited recall); Nahar v Social Security Commissioners [2001] EWHC Admin 1049 [2002] 2 FCR 442 (no issue estoppel or legitimate expectation on social security commissioners to uphold validity of marriage where previously upheld by immigration adjudicators) (CA is at [2002] EWCA Civ 859); R (Bhoti) v SSHD [2003] EWHC 1628 (Admin) (police disciplinary tribunal) at §12 (“plain … that the Secretary of 690

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State has power to reverse a Tribunal on questions of fact”, referring to R v SSHD, ex p Barr (1995) 7 Admin LR 157, 170); R (A) v National Probation Service [2003] EWHC 2910 (Admin) (2004) 7 CCLR 335 at §§27-28 (probation service entitled to form own assessment of risk, departing from parole board’s view); R (Johnson) v Reading Borough Council [2004] EWHC 765 (Admin) at §64 (councillors entitled to depart from recommendation in report commissioned by them, being entitled to regard the report on focusing on one area of the city); {65.1.12} (error/misdirection by consultee).

691

P56 Relevancy/irrelevancy. A public authority must have regard to all, but to only, legally relevant considerations, exercising any judgment as to relevance or weight reasonably. 56.1 The relevancy/irrelevancy principle 56.2 Obligatory and evaluative relevance/irrelevance 56.3 Relevance and weight

56.1 The relevancy/irrelevancy principle.132 It is a basic and long-standing principle of judicial review that a public body should take into account all relevant considerations and no irrelevant ones. A material failure to do so is a basis for the Court to intervene. 56.1.1 Relevancy/irrelevancy principle: in a nutshell. R (Boskovic) v Chief Constable of Staffordshire [2019] EWCA Civ 676 [2019] ICR 1315 at §59 (Baker LJ: “the … authority must … act reasonably, taking into account relevant considerations and excluding any irrelevant matters”); In Re Duffy [2008] UKHL 4 at §53 (Lord Carswell: “the Secretary of State was bound to have regard to the proper factors, and not to have regard to any other improper factors, in reaching his decision”); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §50 (Lord Slynn: “if the Secretary of State … takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision … the court may set his decision aside”); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 533D (Lord Keith: “the discretion … must be exercised … by reference to relevant and not irrelevant considerations”). 56.1.2 Disregarding of a relevancy: illustrations. R (JG) v Southwark LBC [2020] EWHC 1989 (Admin) at §76 (failure to take into account “material pieces of evidence”); AB v Kent County Council [2020] EWHC 109 (Admin) [2020] PTSR 746 at §57 (age assessment decision unlawful “because the abbreviated assessment failed to adequately acknowledge the potential margin for error and give [the claimant] the corresponding benefit of the doubt”); R (O) v SSHD [2019] EWHC 2734 (Admin) at §59 (failure to take into account “highly relevant factors”); R (W) v SSHD [2019] EWHC 254 (Admin) at §43 (Secretary of State was not entitled to leave out of account further evidence about intellectual functioning); R (McLennan) v Medway Council [2019] EWHC 1738 (Admin) [2019] PTSR 2025 at §37 (material planning consideration was disregarded); R (WX) v Northamptonshire County Council [2018] EWHC 2178 [2018] ACD 123 at §111 (no “proper cost benefit analysis” fed into the decision); R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 at §57 (“the … ruling did not identify the considerations that would have been material to the exercise of … discretion”); R (EH) v SSHD [2018] EWHC 2957 (Admin) at §82 (report overlooked); R (City of Westminster) v Transport for London [2018] EWHC 2402 (Admin) [2018] ACD 129 at §70 (decision omitted risk of failing to obtain necessary consents, a consideration “so obviously material … that it must be taken into account”); R (Birks) v Commissioner of Police of the Metropolis [2018] EWHC 807 (Admin) [2018] ICR 1400 at §72 (failure to address the public interest in prompt determination of disciplinary case); Amstel Group Corp v Secretary of State for Communities and Local Government [2018] EWHC 633 (Admin) (planning inspector’s failure to take into account public benefits of new school); R (HA) v University of Wolverhampton [2018] EWHC 144 (Admin) [2018] ELR 272 at §174 (university’s fitness to practice panel failed to consider student’s considerable mitigation).

132The

equivalent paragraph in a previous edition was relied on in Hong Kong Broadband Network Ltd v Director of Highways [2011] HKCFI 544 at §47 (Hon Au J); Carter v Minister for Education and Skills [2018] IEHC 539 at §59 (Richard Humphreys J).

P56 Relevancy/irrelevancy

56.1.3 Considering an irrelevancy: illustrations. R (Wright) v Forest of Dean District Council [2019] UKSC 53 [2019] 1 WLR 6562 at §58 (“In deciding to grant planning permission … the Council relied on matters which do not qualify as ‘material considerations’ for the purposes of section 70(2) of the 1990 Act”); Satnam Millenium Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 2631 (Admin) at §96 (deliverability, treated by the Secretary of State as an adverse factor, “was not legally relevant”); R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 at §57 (points relied on “contained … matters which were irrelevant”); R (McMorn) v Natural England [2015] EWHC 3297 (Admin) [2016] PTSR 750 at §167 (public opinion an irrelevancy, unlawfully taken into account); R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 [2011] 1 AC 437 (off-site development insufficiently linked to compulsory purchase site to be a lawful material consideration); R (AB) v Secretary of State for Justice [2009] EWHC 2220 (Admin) [2010] 2 All ER 151 at §84 (failure to take account of or appreciate likely consequences and relevant views); R (Campbell) v General Medical Council [2005] EWCA Civ 250 [2005] 1 WLR 3488 (mitigation matters irrelevant to whether professional misconduct); R (Mavalon Care Ltd) v Pembrokeshire County Council [2011] EWHC 3371 (Admin) (2012) 15 CCLR 229 at §52 (Beatson J: “It is … not enough for a decision-maker merely to have regard to a relevant consideration … if he misinterprets it”). 56.1.4 Relevancy/irrelevancy and rule-making. In re Brownlee [2014] UKSC 4 [2014] NI 188 at §32 (Lord Kerr: “There was therefore … [a] failure to have regard to a relevant factor and, on that account alone, judicial review will lie of the decision to introduce the 2011 Rules”); R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) [2012] 1 WLR 838 at §29 (consequences of adverse judgments against the government “a legally inadmissible consideration” vitiating decision to amend legal aid funding code). 56.1.5 Anxious scrutiny and relevancy/irrelevancy. {32.4} (anxious scrutiny); R (LH) v SSHD [2019] EWHC 3457 (Admin) at §15 (citing R (IXU) v SSHD [2016] 1 WLR 1439: “The practical effect of the anxious scrutiny test is ‘the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account”’, itself citing R (YH) v SSHD [2010] 4 All ER 448 at §24), §41 (here: “The … decision … does not show by its reasoning that every factor which might tell in the claimant’s favour has been properly taken into account”); R v SSHD, ex p Brind [1991] 1 AC 696, 757B-C (Lord Ackner, asking whether “the minister failed to call his attention to matters which he was bound to consider, nor that he included in his considerations matters which were irrelevant”, explaining in that context that: “In a field which concerns a fundamental human right … close scrutiny must be given to the reasons provided as justification for interference with that right”); R v SSHD, ex p Bugdaycay [1987] AC 514, 534A (“Since the decisions … appear to have been made without taking [the degree of danger] into account, they cannot, in my opinion, now stand”). 56.1.6 Fundamental rights as a relevant consideration? {58.4.1} (proportionality: focus on outcome not reasoning (Denbigh/Miss Behavin’)); {58.4.5} (unassisted court strikes its own balance); cf R v Immigration Officer, ex p Quaquah [2000] INLR 196, 202G-H (applying the “proposition” that “where his decision touches Convention rights the Secretary of State (or other decision-maker) must consider and decide whether in his view the Convention right in issue has been violated”); R v Human Fertilisation and Embryology Authority, ex p Blood [1999] Fam 151 (judicial review granted for failure to take account of EU Treaty rights affected by decision); R v Secretary of State for Education and Employment, ex p Liverpool Hope University College [2001] EWCA Civ 362 [2001] ELR 552 at §§81-83 (if rights not specifically mentioned court can look at content of decision to see whether requirements of EU law nevertheless met); R (Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000 [2005] LGR 105 at §§69-70 (Directions unlawful because council having failed adequately to consider relevancy, namely that they might invade claimants’ property rights without compensation or adequate justification); R (Goldsmith) v London Borough of Wandsworth [2004] EWCA Civ 1170 (2004) 7 CCLR 472 at §91 (decision flawed for failure to address 693

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claimant’s HRA:ECHR Art 8 rights); {6.3.20} (whether international law a relevancy in the exercise of a power). 56.1.7 Materiality and relevancy. {P4} (materiality); R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §227 (treating statutory relevancy as irrelevant was “a material misdirection of law”); Trail Riders Fellowship v Hampshire County Council [2019] EWCA Civ 1275 [2020] PTSR 194 at §42, 53 (upholding discretionary refusal of relief where decision-maker’s unawareness of response of statutory consultee was not a material error causing any prejudice); R (Chichvarkin) v SSHD [2011] EWCA Civ 91 (Richards LJ: “although the Secretary of State was in error in failing to take account of the appellants’ case on prejudice, it was not an error of any consequence and the decision should … be allowed to stand despite it”); R (Assura Pharmacy Ltd) v NHS Litigation Authority [2008] EWHC 289 (Admin) at §83 (appropriate to grant judicial review where unable to say would inevitably have exercised discretion the same way); R v Parliamentary Commissioner for Administration, ex p Balchin [1998] 1 PLR 1, 15C (“test” is “whether a consideration has been omitted which, had account been taken of it, might have caused the decision maker to reach a different conclusion”); R (Hampson) v Wigan Metropolitan Borough Council [2005] EWHC 1656 (Admin) (omitted reference to development plan would not have affected outcome); R v Thurrock Borough Council, ex p Tesco Stores Ltd [1993] 3 PLR 114, 124D (“not … a matter which stood any chance of persuading the authority to change their mind”); R v Royal Borough of Kensington and Chelsea, ex p Kassam (1994) 26 HLR 455, 465 (“the authority might – and that is all that is necessary – have reached a different decision, had it had fully in mind the true position”); A v Kirklees Metropolitan Borough Council [2001] EWCA Civ 582 [2001] ELR 657 at §17 (“the objective question whether the evidence was capable of having made a difference”); R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §37 (“no conceivable basis upon which [the claimant’s] proposals could have caused the Council to reach a different decision”). 56.1.8 Materiality and irrelevancy. {P4} (materiality); R (FDA) v Secretary of State for Work and Pensions [2012] EWCA Civ 332 [2013] 1 WLR 444 at §67 (Lord Neuberger MR: “Where a decision-maker has taken a legally irrelevant factor into account when making his decision, the normal principle is that the decision is liable to be held to be invalid unless the factor played no significant part in the decision-making exercise”), §68 (“Even where the irrelevant factor played a significant or substantial part in the decision-maker’s thinking, the decision may, exceptionally, still be upheld, provided that the court is satisfied that it is clear that, even without the irrelevant factor, the decision-maker would have reached the same conclusion”), §78 (whether “the decision should stand as it plainly would have been the same if the factor had not been taken into account”), §81 (“acknowledging the high hurdle which has to be crossed by a decision-maker”); R v Swansea City Council, ex p Elitestone Ltd [1993] 2 PLR 65, 73F (“it is not … credible that the committee’s decision would have been different” if matter had “not been put before them”); R v Wandsworth LBC, ex p Onwudiwe [1994] COD 229 (transcript) (impossible to conclude that authority’s decision would have been “in the least bit different” had it not considered the irrelevancy); Kwaku Boateng Kwapong v SSHD [1994] Imm AR 207, 214 (no suggestion “that it formed part of the basis for the decision”); R v London Borough of Newham, ex p Dawson (1994) 26 HLR 747, 759 (“the most likely inference is that … the rent issue played no further part in the decision”); R v Secretary of State for the Environment, ex p Kingston upon Hull City Council [1996] Env LR 248, 263 (irrelevant consideration played a major role in the decision); R v Secretary of State for Wales, ex p Kennedy [1996] 1 PLR 97, 101G (“any established irrelevancy would certainly not be of a quality to vitiate the validity of the inspector’s overall conclusion”); R v Wolverhampton Coroner, ex p McCurbin [1990] 1 WLR 719 (coroner’s reference to manslaughter had introduced an irrelevant matter, but clear that this had no bearing on the outcome); R v Secretary of State for Health, ex p Eastside Cheese Company [1999] EuLR 968, 983C-D (“the department would in all probability have reached the same decision, if indeed it was not bound to do so, whether or not account had been taken of the matters which the judge held to be irrelevant”); R v Investors Compensation Scheme Ltd, ex p Bowden [1996] 1 AC 261, 281E (irrelevancy was “very much a subsidiary reason”). 694

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56.1.9 Relevancy/irrelevancy and context/practical realities. R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871 at §72 (approaching the question of “relevant considerations” by reference to “the practical realities”); State of Mauritius v CT Power Ltd [2019] UKPC 27 at §65 (legitimate for Minister to take into account political considerations when conducting negotiations regarding commercial contract for new project); R (Kuteh) v Upper Tribunal [2012] EWHC 2196 (Admin) (duty on court or tribunal to consider all the evidence submitted by the parties); R v London County Council, ex p London and Provincial Electric Theatres Ltd [1915] 2 KB 466, 490 (Pickford LJ: “probably hardly any decision of a body like the London county council dealing with these matters could stand if every statement which a member made in debate were to be taken as a ground of the decision”; “there are probably few debates in which someone does not suggest as a ground for decision something which is not a proper ground; and to say that, because somebody in debate has put forward an improper ground, the decision ought to be set aside as being founded on that particular ground is wrong”), applied in R v Exeter City District Council, ex p JL Thomas & Co [1991] 1 QB 471, 484; R v Chief Registrar of Friendly Societies, ex p New Cross Building Society [1984] QB 227, 260G-261A (“In a decision involving the weighing of many complex factors it will always be possible to point to some factors which should arguably have been taken into account or left out of account”); R v Westminster City Council, ex p Monahan [1990] 1 QB 87, 111C-F (“Financial constraints on the economic viability of a desirable planning development are unavoidable facts of life in an imperfect world. It would be unreal and contrary to common sense to insist that they must be excluded from the range of considerations which may properly be regarded as material in determining planning applications”); R (L (A Minor)) v Governors of J School [2003] UKHL 9 [2003] 2 AC 633 (significance of threat of industrial action to mode of school reinstatement). 56.1.10 Legitimate expectation as a relevancy/as to a relevancy. R (RD (A Child) v Worcestershire County Council [2019] EWHC 449 (Admin) at §82(vi) (“To justify frustration of a substantive legitimate expectation, the decision maker must have taken into account as a relevant consideration the undertaking and the fact that it will be frustrated”); R (Patel) v General Medical Council [2013] EWCA Civ 327 [2013] 1 WLR 327 at §81 (“the GMC should have taken account of the impact of its decision to depart from its previous policy with immediate effect on the claimant and anyone else who received a similar specific assurance. It should have done so before deciding whether to change course. Failure to do so vitiates the decision on Wednesbury grounds”); United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17 [2016] 1 WLR 3383 at §§71-74 (defendant took the legitimate expectation into account, the proper weight being for it to decide); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §309 (Lord Phillips: “The courts will require the authority to give due consideration to [a] legitimate expectation when exercising its power”); Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32 [2012] 1 AC 1 at §46 (“the promise and the fact that the proposed act will amount to a breach of it are relevant factors which must be taken into account”); R (Bibi) v Newham LBC [2001] EWCA Civ 607 [2002] 1 WLR 237 at §§49, 51 (“The law requires that any legitimate expectation be properly taken into account in the decision making process”); R (Public and Commercial Services Union) v Minister for the Civil Service (No 3) [2011] EWHC 2041 (Admin) [2012] 1 All ER 985 at §73 (sufficient that grappled with the effect without identifying the expectation by any “particular label”); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at §60 (“by past practice a legitimate expectation had been generated that loyalty [to the fishery] would be taken into account”); R (Bodimeade) v Camden LBC [2001] EWHC Admin 271 (2001) 4 CCLR 246 at §32 (decision quashed because legitimate expectation “never considered”); R (Theophilus) v London Borough of Lewisham [2002] EWHC 1371 (Admin) [2002] 3 All ER 851 at §26 (failure to take account of breach of promise, applying Bibi); R (Ibrahim) v London Borough of Redbridge [2002] EWHC 2756 (Admin) at §11 (council having discharged its obligation “to take the expectation into account”); R (Bloggs 61) v SSHD [2003] EWCA Civ 686 [2003] 1 WLR 2724 at §75 (depending on the circumstances, even an unauthorised promise could be a relevant consideration); R v British Advertising Clearance Centre, ex p Swiftcall Ltd 16 November 1995 unreported (legitimate expectation from prior approval a relevant consideration requiring a good reason for such a 695

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course); R v Merton, Sutton and Wandsworth Health Authority, ex p Perry (2000) 3 CCLR 378 at §80 (council should have formally considered previous promise of a home for life); R v Isleworth Crown Court, ex p Irvin The Times 5 December 1991 (on Crown Court appeal against sentence, wrong to ignore expectation given to the claimant by the justices), applied in R v Truro Crown Court, ex p Warren [1993] COD 294; R v Shropshire County Council, ex p Jones [1997] COD 116 (should have given more attention to the expectation of a discretionary grant); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] STC 1500, 1528c (in exercising statutory discretion “the commissioners would almost certainly have to take into account the existence of their representations”); R v Lord Saville of Newdigate, ex p B The Times 15 April 1999 (legitimate expectation arising from assurance given by Widgery inquiry (1972) was a consideration which could not be ignored by the Saville inquiry (1999), but had to be taken into account and given appropriate weight); R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 at §57(a) (under the reasonableness category of substantive legitimate expectation), §58 (ask “whether the public body has given proper weight to the implications of not fulfilling the promise”), §73 (must “take into account all relevant matters which here will include the promise or other conduct giving rise to the expectation”); R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2003] UKHRR 76 at §82 (“The expectation is not that the policy or practice will necessarily remain unchanged … However, so long as it remains unchanged, the subject is entitled to have it properly taken into account in considering his individual case”); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 at §§153, 155 (legitimate expectation arising from previous practice a matter to be taken into account); {56.1.13} (policy guidance and relevancy). 56.1.11 Whether/how limited resources are relevant. Hotak v Southwark LBC [2015] UKSC 30 [2016] AC 811 at §39 (statutory duty to house those in priority need “is not to be influenced or affected by the resources available to the authority”); Littlewood v Powys County Council [2015] EWHC 2125 (Admin) [2016] PTSR 45 at §45 (“resource implications … irrelevant” where statutory duty); Fletcher v Governor of Whatton Prison [2014] EWHC 3586 (Admin) [2015] 3 All ER 1813 at §66 (Dingemans J: “This was a public law obligation which needed to be discharged through the budget proposed by the Executive and then approved, after modification, by Parliament. The Secretary of State is not entitled to overlook the public law duty by pointing to inadequate resources”); R (O) v SSHD [2019] EWHC 148 (Admin) at §89 (“The provision of inadequate resources by Government may be relevant to a charge of systematically unlawful delay, but the Courts will be wary of deciding questions that turn on the allocation of scarce resources”); R (KM) v Cambridgeshire County Council [2012] UKSC 23 [2012] PTSR 1189 at §§5-7, 15, 19 (resources not relevant to question of need but, on the present state of the law, relevant to whether arrangements are necessary); Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34 at §25 (Lord Carnwath: “As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking into account of any more economic ways of achieving the same objective. Of course, the weight attributable to cost considerations will vary with the context”); R (B) v Secretary of State for Justice [2019] EWCA Civ 9 [2019] 4 WLR 42 at §144 (“where otherwise there would be a breach of article 3, that cannot be justified by reference to lack of resources. … However, an inquiry called for under article 3, particularly when positive obligations are relied upon, can properly take account of the resources reasonably available”); R (Clue) v Birmingham City Council [2010] EWCA Civ 460 [2011] 1 WLR 99 at §72 (budgetary constraints not relevant where welfare refusal would require applicant to leave the UK and forfeit claim for leave to remain); R (FDA) v Secretary of State for Work and Pensions [2012] EWCA Civ 332 [2013] 1 WLR 444 at §49 (effect on the national exchequer relevant when selecting index for public service pensions), §61 (“national economic situation” relevant), §63 (but manner of reliance circumscribed); R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 at §35 (“Ordinarily cost, where relevant, will be a matter to be taken into account by a local authority when considering its response to an assessed need rather than at the stage of assessment”); R v East Sussex County Council, ex p Tandy [1998] AC 714 (resources not relevant to statutory duty to assess 696

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“suitable” education provision); R v Gloucestershire County Council, ex p Barry [1997] AC 584 (resources relevant to statutory duty to assess what “necessary” to meet “needs”); R (McDonald) v Kensington and Chelsea Royal LBC [2011] UKSC 33 [2011] PTSR 1266 (applying Barry); R (Noorkoiv) v SSHD [2002] EWCA Civ 770 [2002] 1 WLR 3284 (lack of resources not an answer to breach of HRA:ECHR Art 5(4)); {59.8.14} (Article 14 justification: cost/saving alone cannot justify discrimination). 56.1.12 Relevancy and depth of consideration. R (Clientearth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin) at §256 (Holgate J: “Where a decision-maker decides to have regard to a matter then it is generally a matter for his or her judgment as to how far to go into it, something which may only be challenged on the grounds of irrationality”), citing R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §35; {51.1} (duty of sufficient inquiry); {51.2.4} (decision-maker failed to grapple with the material/issues); {64.3.14} (duty to grapple: adequate reasons requiring a systematic/logical analysis). 56.1.13 Policy guidance and relevancy. {6.2.6} (duty of adherence to policy guidance); R v Wolverhampton Municipal Borough Council, ex p Dunne (1997) 29 HLR 745 (Secretary of State’s guidance identifying material considerations to which council obliged to have regard); R (D) v SSHD [2003] EWHC 155 (Admin) [2003] 1 FLR 979 (policy prescribing a relevant consideration). 56.1.14 Consistency: previous decisions as a relevancy. {55.1.25}-{55.1.26} 56.1.15 Link between procedural fairness and relevancy. R v Hampshire County Council, ex p K [1990] 2 QB 71, 78G (fair procedure meaning: “Whatever their eventual decision, they would at least have had before them the material upon which to base a fully informed and judicial exercise of the discretion”).

56.2 Obligatory and evaluative relevance/irrelevance.133 Public law distinguishes between (a) matters whose relevance or irrelevance is obligatory (usually because expressly or impliedly prescribed by a relevant superior source) and (b) matters whose relevance or irrelevance is an evaluative judgment for the public authority as primary decision-maker (with its built-in latitude). Identifying (a) is a hard-edged question for the Court. The public authority’s evaluative judgment as to (b) is the subject of ‘soft’ (reasonableness) review. 56.2.1 Obligatory and evaluative relevance/irrelevance: Creednz. In re Findlay [1985] AC 318, 333H-334C (citing Creednz Inc v Governor-General [1981] 1 NZLR 172, 183: judicial review Court intervenes on grounds of disregarding a relevancy “when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation” or where the matter was “obviously material”). 56.2.2 Relevance (capable of) engaging a question of law. {56.3.1} (relevance as law, weight as judgment); 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”). 56.2.3 Obligatory and evaluative relevance/irrelevance encapsulated. R (Hurst) v London Northern District Coroner [2007] UKHL 13 [2007] 2 AC 189 at §57 (Lord Brown: “Some considerations are required to be taken into account by decision makers. Others are required not to be. But there is a third category: those considerations which the decision maker may choose for himself whether or not to take into account”); R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3 [2020] PTSR 221 at §32 (“The question … is whether” the matters in question “were expressly or impliedly identified in the Act or the policy as considerations required to be taken into account by the authority 133The

equivalent paragraph in a previous edition was relied on in R (Robinson) v Governor of Whatton Prison [2013] EWHC 3777 (Admin) at §69 (Richards LJ and Irwin J).

697

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‘as a matter of legal obligation’, or alternatively whether, on the facts of the case, they were ‘so obviously material’ as to require direct consideration”); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 at §40 (Lord Bingham: “A discretionary decision is not … vitiated by a failure to take into account a consideration which the decision-maker is not obliged by the law or the facts to take into account, even if he may properly do so”); R (Clientearth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin) at §99 (Holgate J: “it is necessary for a claimant to show that the decision-maker was expressly or impliedly required by the legislation (or by a policy which had to be applied) to take the particular consideration into account, or whether on the facts of the case, the matter was so ‘obviously material’, that it was irrational not to have taken it into account”); R (Pharmaceutical Services Negotiating Committee) v Secretary of State for Health [2018] EWCA Civ 1925 [2019] PTSR 885 at §82 (for the decision-maker to decide what it relevant, subject to Wednesbury review). 56.2.4 Evaluative relevance: primarily a matter for the decision-maker. R (A) v Secretary of State for Health [2017] UKSC 41 [2017] 1 WLR 2492 at §20 (identifying feature which Secretary of State “entitled to have in mind”); Gordon v Scottish Criminal Cases Review Commission [2017] UKSC 20 [2017] SLT 365 at §41 (describing “a matter which could properly be taken into account by the Commission”); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §143 (describing a situation where “a public authority’s powers are so widely drawn that it is in principle free to decide for itself what considerations are relevant”); R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §35 (“where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review”); R (Adlard) v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 735 [2002] 1 WLR 2515 at §41 (referring to considerations “of the kind which the Secretary of State can have regard to or not as he chooses”); R (Jones) v North Warwickshire Borough Council [2001] EWCA Civ 315 at §20 (“decision-maker must decide for himself what he will take into account. In doing so he must obviously be guided by the policy and objects of the governing statute”). 56.2.5 Statutorily obligatory relevance. R (Irving) v Mid Sussex District Council [2019] EWHC 3406 (Admin) at §60 (failure to consider relevant development plan policies, in breach of s.70(2) of the Town and Country Planning Act 1990); R (Grantham) v Parole Board for England and Wales [2019] EWHC 116 (Admin) at §§20, 24 (failure to consider factors listed in statutory direction); R (Morge) v Hampshire County Council [2011] UKSC 2 [2011] 1 WLR 268 (duty to have regard to Habitats Directive requirements); R (Project for the Registration of Children as British Citizens) v SSHD [2019] EWHC 3536 (Admin) [2020] 1 WLR 1486 at §116 and R (O) v SSHD [2019] EWHC 2734 (Admin) at §75 (breaches of statutory duty to discharge immigration functions having regard to the need to promote and safeguard children’s welfare); Open Spaces Society v Secretary of State for the Environment, Food and Rural Affairs [2020] EWHC 1085 (Admin) [2020] ACD 78 (whether statutorily prescribed relevancies exclusive); R (Trans Berckx BVBA) v North Avon Magistrates’ Court [2011] EWHC 2605 (Admin) at §§12, 17-18 (deprivation orders unlawful for failure to consider matters statutorily obliged to take into account); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228 (Lord Greene MR: “If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters … if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters”); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1064H-1065B (whether Secretary of State “had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider”); Tesco Stores Ltd v Secretary of State for the Environment [1995] 698

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1 WLR 759 (“material” considerations under Town and Country Planning Act 1990 s.70(2)); R v Wandsworth LBC, ex p Hawthorne [1994] 1 WLR 1442, 1448D (statutory duty to have regard to Code of Guidance); R v Oadby and Wigston Borough Council, ex p Dickman (1996) 28 HLR 806, 817 (regulations setting out “the only factors that are relevant”); R v Secretary of State for the Environment, ex p Lancashire County Council [1994] 4 All ER 165, 174e (unlawful for guidance to supply further criterion to those already in statute); R v Sunderland City Council ex p Redezeus Ltd (1995) 27 HLR 477 (statute setting out only matters to which regard could be had); R v Licensing Authority of the Department of Health, ex p Scotia Pharmaceuticals [1995] 3 CMLR 657 (EU Directive laying down information required to be submitted and considered); {56.1.3} (policy guidance as relevancy}; {56.1.10} (legitimate expectation as a relevancy/as to a relevancy); {6.2.6} (duty of adherence to policy guidance}. 56.2.6 Statutory irrelevancy. R (Rehman) v Wakefield City Council [2019] EWCA Civ 2166 [2020] PTSR 765 at §24 (on correct interpretation of the statute, enforcement costs “cannot be taken into account”); {56.1.11} (whether/how limited resources are relevant). 56.2.7 Obligatory (statutory) relevancy: by necessary implication. R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §§137-141 (asking whether consideration required to be taken into account by the statute, “as a matter of necessary implication”); R (Coventry Gliding Club Ltd) v Harborough District Council [2019] EWHC 3059 (Admin) at §14 (relevancy capable of “arising as a matter of implication”). 56.2.8 Statutory ‘have regard’/‘due regard’ duty. R (Pharmaceutical Services Negotiating Committee) v Secretary of State for Health [2018] EWCA Civ 1925 [2019] PTSR 885 at §§80-82, 86 (discussing nature of statutory duty to “have regard”), §§83-85 (discussing nature of statutory duty to “have due regard”); {55.2.6} (public sector equality duty); R (Cushnie) v Secretary of State for Health [2014] EWHC 3626 (Admin) [2015] PTSR 384 at §114 (Singh J, drawing an analogy between the PSED and the duty to have regard to all relevancies). 56.2.9 Evaluative relevance: illustrations. In re Loughlin [2017] UKSC 63 [2017] 1 WLR 3963 at §§31-33 (wrong for judicial review court to identify “the predominant factor” in what was a legitimate, “open-ended deliberation” and “open examination” of the public interest); R (ICO Satellite Ltd) v Office of Communications [2011] EWCA Civ 1121 at §53 (Ofcom not obliged to take into account impact of decision on third parties); R v Secretary of State for Transport, ex p Richmond-upon-Thames LBC [1994] 1 WLR 74, 95C (Laws J: “in a case where the statute itself does not specify the considerations to be taken into account in arriving at a discretionary decision, it will be for the decision-making body to decide what is and what is not a relevant consideration, and this decision will itself only be subject to review on Wednesbury grounds”); R v Lambeth LBC, ex p Njomo (1996) 28 HLR 737, 743 (rent arrears among those “considerations which can in the decision-maker’s own discretion lawfully be taken into account”); R v Gaming Board of Great Britain, ex p Kingsley [1996] COD 178 (assessment of relevancies for defendant’s expertise, providing that had regard to statutory purpose and matters related to statutory test, and subject to Wednesbury); R v Parliamentary Commissioner for Administration, ex p Balchin [1998] 1 PLR 1, 15D (consideration “one to which the law requires the decision maker to have regard” because it “is squarely presented by the very facts established by the Commissioner’s own thorough investigation”). 56.2.10 Unreasonable evaluative judgment: plainly relevant/irrelevant considerations. R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 597 (Admin) at §57 (whether “considerations … so obviously material to the decision that the legislation intends that they be taken into account”); R (Boskovic) v Chief Constable of Staffordshire [2019] EWCA Civ 676 [2019] ICR 1315 at §59 (strength of the merits “plainly, a relevant consideration”); The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303, 1311B-F (so obviously material that unreasonable not to consider); R v Panel on Take-overs and Mergers, ex p Guinness Plc [1990] 1 QB 146 at 159D (referring to “considerations which on any view must have been irrelevant or … relevant”), applied in R (C) v Lewisham LBC [2003] EWCA Civ 927 [2003] 3 All ER 1277 at §48; R (Metropolitan Borough of Wirral) v Chief Schools Adjudicator [2001] ELR 574 at §53 (obligation to 699

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“consider those consequences which the reasonable decision-maker, fulfilling that particular statutory duty, would realise were necessary or fundamental considerations arising as part and parcel of his very determination”); R v SSHD, ex p Mehari [1994] QB 474, 492F-G (credibility findings logically irrelevant to whether safe third country); R (Coghlan) v Chief Constable of Greater Manchester Police [2004] EWHC 2801 (Admin) [2005] 2 All ER 890 at §48 (applying Creednz), §54 (non-statutory guidance “so obviously material” that disregarding it “would not be in accordance with the intention of the statutory scheme”). 56.2.11 Relevancies and objectives. {56.3.6}

56.3 Relevance and weight. Public law distinguishes between relevance and weight. Relevance is capable of engaging a question of law. Weight engages a question of evaluative judgment, for the public authority as primary decision-maker, unless a relevant instrument prescribes otherwise. The Court will interfere with the public authority’s evaluative assessment regarding weight only by ‘soft’ (reasonableness) review, recognising the authority’s built-in latitude. Viewed against that backcloth, judicial review can be granted for wrongly giving a relevant consideration too little, or too much, weight. 56.3.1 Relevancy as law, weight as judgment. Elsick Development Co Ltd v Aberdeen City and Shire Strategic Development Planning Authority [2017] UKSC 66 [2017] PTSR 1413 at §54 (Lord Hodge, describing the distinction between “whether something is a material consideration and the weight which it should be given … The former is a question law; the latter is a matter for the … judgment of the … authority”); R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 [2011] 1 AC 437 at §70 (Lord Mance: “the question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision-maker”); Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 764G-H (Lord Keith: “It is for the courts … to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense”), 770B (“regard must be had to [the material consideration] … But the extent, if any, to which it should affect the decision is a matter entirely within the discretion of the decision maker”), 780F-H (Lord Hoffmann: “The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment”). 56.3.2 Weight is for the primary decision-maker’s evaluative assessment.134 R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3 [2020] PTSR 221 at §41 (“weight … was a matter of planning judgement not law”); R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §146 (decision-maker entitled to give a “potentially relevant consideration … no weight. The weight to be given … was entirely a matter for the Secretary of State, reviewable only on traditional public law grounds”); R (Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA 594 at §44 (“Disagreement on the appropriate weight is never, on its own, a proper basis for a public law challenge”); R (Greenpeace Ltd) v Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 55 (Admin) [2016] PTSR 851 at §51 (Andrews J: “the weight to be ascribed to any particular factor (or criterion) in reaching a decision … remains quintessentially a matter for the decision-maker”); City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, 1458G-H (“the weighing of the considerations [are left] in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations”). 134The

equivalent paragraph in a previous edition was relied on in R (Bevan & Clarke LLP) v Neath Port Talbot County Borough Council [2012] EWHC 236 (Admin) [2012] ACD 62 at §57 (Beatson J).

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56.3.3 Statutory weight: ‘special regard’/‘particular regard’. R (Palmer) v Herefordshire Council [2016] EWCA Civ 1061 [2017] 1 WLR 411 at §§4-5 (statutory duty to “have special regard” means must be given “considerable importance and weight”); H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 [2013] 1 AC 338 at §§11-15 (Lady Hale, discussing the approach to the best interests of the child as “a primary consideration”); R v City of Westminster Housing Benefit Review Board, ex p Mehanne [2001] UKHL 11 [2001] 1 WLR 539 at §13 (“having regard in particular” in statute meaning “[t]hat factor is singled out for special mention and is thereby given the status of a mandatory consideration which carries the most weight”); R (Omoregbee) v Secretary of State for Justice [2011] EWCA Civ 559 at §11 (Prison Service Instruction describing specified matters as “paramount”, meaning “important”, not “a consideration which obliterates individual merits”); cf R (Manchester City Council) v Secretary of State for Environment, Food & Rural Affairs [2007] EWHC 3167 (Admin) (“in particular” meaning mandatory relevancy not “enhanced” weight); {56.2.8} (statutory ‘have regard’/‘due regard’ duty). 56.3.4 Wrongly giving no/too little weight. R (NS) v SSHD [2019] EWHC 861 (Admin) [2019] ACD 60 at §95 (“not open to the decision-maker to attach ‘no weight’ to the claimant’s evidence”); R (Humber Landlords Association) v Hull City Council [2019] EWHC 332 (Admin) at §57 (whether “manifestly disproportionate weight has been given to an otherwise relevant consideration”); R (Secretary of State for Foreign and Commonwealth Affairs) v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin) [2014] ACD 43 at §64 (Goldring LJ: “the weight the Coroner gave to the views of the Secretary of State was insufficient and amounted to an error of law”); R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2001] EWCA Civ 239 [2002] QB 235 (CA) at §41 (Sedley LJ: “The principle that the weight to be given to such facts is a matter for the decisionmaker … does not mean that the latter is free to dismiss or marginalise things to which the structure and policy of the Act attach obvious importance”) (HL is at [2003] UKHL 58 [2004] 2 AC 280); R v Secretary of State for Trade and Industry, ex p BT3G Ltd [2001] EuLR 325 (Silber J) at §187 (“Courts have … been willing to strike down as unreasonable decisions where … manifestly inadequate weight has been accorded to a relevant consideration”) (CA is [2001] EWCA Civ 1448 [2001] EuLR 822); Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 784B-D (“if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it”); JML Direct Ltd v Freesat UK Ltd [2010] EWCA Civ 34 at §22 (Moore-Bick LJ, describing the “distinction between giving consideration to a matter and deciding to attach no weight to it [as] one of common sense … [and] one of principle”); R v Mid-Hertfordshire Justices, ex p Cox (1996) 8 Admin LR 409, 413H (magistrates “simply failed to give any weight whatever to the evidence of [the claimant’s] changed circumstances”); R v Secretary of State for the Environment, ex p Torridge District Council [1997] Env LR 557 (wrongly treating one matter as the sole material consideration, to the exclusion of others); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1048C-D (asking “whether the Secretary of State has given sufficient, or any, weight to this particular factor in the exercise of his judgment”); R v Avon County Council, ex p M [1994] 2 FLR 1006, 1019G-1020D (failure to give “sufficient weight” to recommendation by review panel); R v SSHD, ex p Yousaf [2000] 3 All ER 649 at §51 (defendant “dismissive of this potentially relevant element in a way which the material before him did not justify”); R v Manchester Crown Court, ex p McDonald [1999] 1 WLR 841, 846E (defendant court had to be careful to give full weight to overriding purposes of relevant statutory provisions); {55.3.9} (unjustified departure from view of a review panel); {55.3.13} (unjustified departure from parole board position). 56.3.5 Wrongly giving weight/too much weight. Trail Riders Fellowship v Secretary of State for the Environment, Food and Rural Affairs [2017] EWHC 1866 (Admin) [2018] PTSR 15 at §28 (inspector’s “reasoning clearly contains a non sequitur and … an error of law”, because she proceeded from treating map as not “irrelevant” to treating it as “conclusive”); R (Gallagher) v Basildon District Council [2010] EWHC 2824 (Admin) [2011] PTSR 731 701

GROUNDS FOR JUDICIAL REVIEW

at §41 (Kenneth Parker J: “the challenged decision … has given manifestly disproportionate weight to certain considerations”), §38 (“it was not rational to accord such weight to that consideration”); R v Waltham Forest LBC, ex p Baxter [1988] QB 419, 428G (entitled to have regard to party loyalty, but not by blindly allowing it to dominate); R v Governors of the Hasmonean High School, ex p N & E [1994] ELR 343, 352D, 355B and 356C (whether factor taken into consideration to an unacceptable degree); R v South Gloucestershire Housing Benefit Review Board, ex p Dadds (1997) 29 HLR 700, 707 (decision-makers having concentrated on certain relevant factors so heavily that their decision irrational); R v Local Commissioner for Administration in North and North East England, ex p Liverpool City Council [2001] 1 All ER 462 at §36 (allowing party political influence to be decisive); R v Secretary of State for Trade and Industry, ex p BT3G Ltd [2001] EuLR 325 (Silber J) at §187 (“Courts have … been willing to strike down as unreasonable decisions where manifestly excessive … weight has been accorded to a relevant consideration”) (CA is [2001] EWCA Civ 1448 [2001] EuLR 822); {P50} (abdication/fetter); R v SSHD, ex p Benson 9 November 1988 unreported (“if in the view of the court the weight to be attached to the two incidents is so small that they ought to be disregarded altogether, then it is our duty to say so”); R v Liverpool Crown Court, ex p Luxury Leisure Ltd [1999] LGR 345, 351g, 353e (public objections which are demonstrably misinformed would carry no weight and would require to be ignored); R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §33 (Auld LJ: although relevance (materiality) and weight “essentially matters of planning judgment”, court not “shy in an appropriate case of concluding that it would have been irrational of a decisionmaker to have had regard to an alternative proposal as a material consideration or that, even if possibly he should have done so, to have given it any or any sufficient weight”). 56.3.6 Relevancies and objectives. R v Daventry District Council, ex p Thornby Farms Ltd [2002] EWCA Civ 31 [2003] QB 503 (considering statutorily required “relevant objectives”) at §53 (“An objective … is something different from a material consideration … An objective which is obligatory must always be kept in mind when making a decision even while the decision maker has regard to other material considerations”); R (Castle) v Metropolitan Police Commissioner [2011] EWHC 2317 (Admin) [2012] 1 All ER 953 at §64 (statutory duty to have regard to the need to safeguard and promote the welfare of children); R v East Sussex County Council, ex p Tandy [1998] AC 714 (CA, rejecting argument that relevancy (resources) had been given such weight as to constitute a predominant ulterior purpose); R (Blewett) v Derbyshire County Council [2004] EWCA Civ 1508 [2004] Env LR 293 at §91 (duty in having regard to EU law objectives considered in terms of appropriate “weight”). 56.3.7 Weight and fundamental rights/anxious scrutiny. R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3 [2010] 1 AC 410 at §48 (Court deciding whether rights of prospective employee given adequate “weight” for the purposes of Art 8 proportionality); R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §27 (Lord Steyn, referring to the HRA: “the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations”); Chesterfield Properties Plc v Secretary of State for the Environment [1998] JPL 568, 579-580 (Laws J: “where what may be called a fundamental or constitutional right is threatened by an administrative decision of the state … the decision-maker must give a high place to the right in question. He cannot treat it merely as something to be taken into account, akin to any other relevant consideration; he must recognise it as a value to be kept, unless in his judgment there is a greater value that justifies its loss”; “where a constitutional right is involved, the law presumes it to carry substantial force. Only another interest, a public interest, of greater force may override it”); R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855 at §68(1) (“The tribunal has failed to attach sufficient significance to the fact that” it would be satisfying requirements of public confidence); R (Samaroo) v SSHD [2001] EWCA Civ 1139 [2001] UKHRR 1150 at §39 (Dyson LJ: “The court will interfere with the weight accorded by the decision-maker if, despite an allowance for the appropriate margin of discretion, it concludes that the weight accorded was unfair and unreasonable. In this respect, the level of scrutiny is undoubtedly more intense than it is when a decision is subject to review 702

P56 Relevancy/irrelevancy

on traditional Wednesbury grounds, where the court usually refuses to examine the weight accorded by the decision-maker to the various relevant factors”); JA (Afghanistan) v SSHD [2014] EWCA Civ 450 [2014] 1 WLR 4291 at §24 (Moore-Bick LJ: “The ‘anxious scrutiny’ which all claimants for asylum are entitled to expect begins with a careful consideration of the weight that should properly be attached to answers given in their interviews”), §25 (“the common law principle of fairness … requires the tribunal to consider with care the extent to which reliance can properly be placed on answers given by the claimant in his initial and screening interviews”); {32.4} (anxious scrutiny); {P37} (proportionality method).

703

P57 Unreasonableness. A public authority must not act unreasonably. 57.1 The unreasonableness principle 57.2 Unreasonableness as a high threshold 57.3 Distinct species of unreasonableness 57.4 Unreasonableness in action

57.1 The unreasonableness principle.135 Unreasonableness – often still described as ‘irrationality’ – is the public law description of a public authority acting in a way which, on appropriate scrutiny, was not reasonably open to it. The unreasonableness principle has governed judicial interference with those questions of substance as to which the public authority is primary decision-maker and has a built-in latitude. That includes the overall outcome (evaluating the merits), but also the decision-making approach and all matters of judgment, discretion or policy. Retaining its supervisory jurisdiction, and avoiding the forbidden substitutionary method, the Court asks whether the public authority’s response was beyond the range of reasonable responses. This is a flexible and contextual test. 57.1.1 Reasonableness: the ‘normal standard of review’. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §75 (“‘Wednesbury’ irrationality is the normal standard of review applicable in judicial review proceedings”); R (Giri) v SSHD [2015] EWCA Civ 784 [2016] 1 WLR 4418 (application of the immigration rules is subject to Wednesbury review); {13.1} (‘soft’ review: reasonableness standard); {P15} (the forbidden method). 57.1.2 Reasonableness: an objective concept. R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1130B (describing reasonableness as an “objective concept[]: otherwise there would be no public law, or if there were it would be palm tree justice”); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1054B-C (Viscount Dilhorne, question of reasonableness “ha[s] to be viewed objectively”); R v Boundary Commission for England, ex p Foot [1983] QB 600, 626E-627A (an “objective standard”); In re W (An Infant) [1971] AC 682, 718B (Lord Hodson: “The test of unreasonableness is objective”), 699H-700A (Lord Hailsham: “unreasonableness can include anything which can objectively be adjudged to be unreasonable”); {16.1.4} (Court decides the breadth of the range of reasonable responses). 57.1.3 Reasonableness: a well-established principle. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §48 (Rose LJ, describing “irrationality” as being “the Wednesbury unreasonableness that has been a ground for a public law challenge since the early days of the modern jurisprudence on judicial review”); Westminster Corporation v London & North Western Railway [1905] AC 426, 430 (Lord Macnaghten: “It is well settled that a public body invested with statutory powers … must take care not to exceed or abuse its powers … it must act reasonably”); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 57.1.4 Reasonableness: ‘the rule of reason’. Rooke’s Case (1598) 5 Co Rep 99b (Lord Coke: “notwithstanding that the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law”); Sharpe v Wakefield Justices [1891] AC 173, 179 (Lord Halsbury LC: “‘discretion’ means when it is said that something is to be done within the discretion of the authorities, that that something is to be done according to the rules of reason and justice”); SS (Nigeria) v SSHD [2013] EWCA Civ 550 [2014] 1 WLR 998 at §38 (Laws LJ, describing 135The

equivalent paragraph in a previous edition was relied on in Kim v MOJ [2017] NZHC 2109 [2017] 3 NZLR 823 at §20 (Mallon J).

P57 Unreasonableness

“conventional Wednesbury review, whose essence is simply an appeal to the rule of reason”); R (A) v Lambeth LBC [2001] EWCA Civ 1624 (2001) 4 CCLR 486 (CA) at §43 (Laws LJ: “a local authority … must satisfy the rule of reason, as the Wednesbury case enjoins”); R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 [2016] 1 WLR 3923 at §22 (Laws and Treacy LJJ, referring to “the basic tests of reason and good faith”). 57.1.5 First distinct aspect of unreasonableness: outcome (terminus). R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §98 (Leggatt LJ and Carr J, discussing “unreasonableness”: “This legal basis for judicial review has two aspects. The first is concerned with whether the decision under review is capable of being justified or whether in the classic Wednesbury formulation it is ‘so unreasonable that no reasonable authority could ever have come to it’. … Another, simpler formulation of the test which avoids tautology is whether the decision is outside the range of reasonable decisions open to the decision-maker”), applied in R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §48; Braganza v BP Shipping Ltd [2015] UKSC 17 [2015] 1 WLR 1661 at §24 (Lady Hale, describing the “two limbs” of Wednesbury, one of which “focusses upon … outcome – whether even though the right things have been taken into account, the result is so outrageous that no reasonable decision-maker could have reached it”); R v Secretary of State for Home Affairs, ex p Harrison (1987) [1997] JR 113, 119-120 (Glidewell LJ, accepting the submission of John Laws: “What [the irrationality] ground is asserting, says Mr Laws, is that one only needs to look at the decision itself to see that it is so unreasonable that the process by which it was reached must be flawed. … That, Mr Laws submits, does not demand any examination, of the route. In other words, he says that the claim is that the court should consider the terminus. If it finds that the terminus is irrational, then the route must be wrong – the decision maker must have set off on the wrong road somewhere”); {45.3.2} (Wednesbury principles 1: unreasonable outcome). 57.1.6 Second distinct aspect of unreasonableness: approach (route). R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §98 (“The second aspect of irrationality/unreasonableness is concerned with the process by which the decision was reached. A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it – for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error”), applied in R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §48, and in R (Electronic Collar Manufacturers Association) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin) [2020] ACD 4 at §192 (adding: “Factual error can also be regarded as an example of flawed reasoning – the test being whether a mistake as to a fact which was uncontentious and objectively verifiable played a material part in the decisionmaker’s reasoning”); Braganza v BP Shipping Ltd [2015] UKSC 17 [2015] 1 WLR 1661 at §24 (Lady Hale, describing the “two limbs” of Wednesbury, one of which “focusses on the decision-making process – whether the right matters have been taken into account in reaching the decision”); R v Secretary of State for Transport, ex p APH Road Safety Limited [1993] COD 150 (in an irrationality case, Court not simply concerned with the outcome); Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §30 (Lord Carswell, explaining that: “The terminus argument (that in judicial review the court is not required to consider the route by which the impugned decision is reached, but only the terminus) … has not been universally regarded as valid”); {45.3.3} (Wednesbury principles 2: relevancies and irrelevancies); {45.3.4} (Wednesbury principles 3: error of law). 57.1.7 The reasonableness test articulated. R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §90 (referring to the “test of reasonableness”); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §98 (referring to “‘irrationality’ or, as it is more accurately described, unreasonableness”); Elsick Development Co Ltd v Aberdeen City and Shire Strategic Development Planning Authority [2017] UKSC 66 [2017] PTSR 1413 at §28 (“unreasonable in the Wednesbury sense”); 705

GROUNDS FOR JUDICIAL REVIEW

R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322 at §55 (“so unreasonable as to be unlawful”); In Re Duffy [2008] UKHL 4 at §28 (test is whether “the decision … was one which a reasonable Secretary of State could not have made if properly directing himself in law, if seised of the relevant facts and if taking account of considerations which, in this context, he was bound to take into account”); R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 2 AC 418, 452B-F (“whether the decision in question was one which a reasonable authority could reach”); R v SSHD, ex p Brind [1991] 1 AC 696, 749A-B (“whether a reasonable Secretary of State, on the material before him, could reasonably make that … judgment”); {7.8} (basic reasonableness). 57.1.8 Reasonableness: importance of language reflecting supervisory review. R v SSHD, ex p Brind [1991] 1 AC 696, 757G-H (Lord Ackner: 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”); {57.1.3} (unreasonableness: a strong requirement). 57.1.9 Reasonableness: whether within ‘the range of reasonable responses’. R (Pantellerisco) v Secretary of State for Work and Pensions [2020] EWHC 1944 (Admin) at §47 (Garnham J, asking whether “outside the range of reasonable decisions open to the decision-maker”); R (Caine) v Department for Work and Pensions [2020] EWHC 2482 (Admin) at §200; R (TI) v Bromley Youth Court [2020] EWHC 1204 (Admin) [2020] 2 Cr App R 22 at §36 (asking whether the “conclusion fell within the ambit of a reasonable decision maker in her position”); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §98 (“whether the decision is outside the range of reasonable decisions open to the decision-maker”), applied in R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §48; General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 at §21 (describing “the classic judicial review investigation” as whether action “lay within the range of reasonable responses”); Boddington v British Transport Police [1999] 2 AC 143, 175H (Lord Steyn: whether decision “within the range of reasonable decisions open to a decision maker”); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 at §38 (“a decision outside the lawful bounds of the discretion”); Gokool v Permanent Secretary for the Ministry of Health and Quality of Life [2008] UKPC 54 at §18 (“decision … within the range of responses which a reasonable decision-maker might have made in the circumstances”); {16.1.4} (Court decides the breadth of the range of reasonable responses). 57.1.10 Reasonableness: whether ‘capable of being justified’. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §114 (Underhill LJ, finding irrationality because “there is nothing in the evidence to justify the conclusion that no solution can be devised without causing unacceptable cost or problems elsewhere in the system”); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §98 (asking “whether the decision under review is capable of being justified”); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §§91-92 (whether “incapable of rational justification”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §132 (whether “beyond rational justification”); {57.3.4} (unreasonableness: lacking justification). 57.1.11 Unreasonable response: unjustified impact. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 (unreasonable failure to amend regulations) at §62 (Rose LJ: “The SSWP has put forward no reason why the date on which these Respondents submitted their claim for universal credit should result in them losing a considerable amount of money each year for however long their entitlement lasts. In my judgment this is the most egregious aspect of the way the system works”), §114 (Underhill LJ: “there is nothing in the evidence to justify the conclusion that no solution can be devised without causing unacceptable cost or problems elsewhere in the system”), §115 (irrationality because “rule-making power … exercised in a way which produces so arbitrary and harmful an impact on the Respondents and the very many other claimants who are in the same position”). 706

P57 Unreasonableness

57.1.12 Reasonableness: sole justifiable outcome. {24.4.9} (mandatory order: sole legally permissible result); {2.6.11} (no remittal where only one proper course); In re appeals by Governing Body of JFS [2009] UKSC 1 [2009] 1 WLR 2353 at §23 (Lord Hope, referring to “the only reasonable decision open”). 57.1.13 Unreasonableness is a contextual principle. Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1047G (Lord Wilberforce: “there is no universal rule as to the principles on which the exercise of a discretion may be reviewed: each statute or type of statute must be individually looked at”); R v Teignmouth District Council, ex p Teignmouth Quay Co Ltd [1995] 2 PLR 1, 10D (“The question whether to quash this decision is not answered simply by asking whether the council behaved ‘unreasonably’ in the general sense”, but “whether they behaved ‘unreasonably’ in the way they purported to exercise the powers granted and limited by statute”). 57.1.14 Unreasonableness as variable intensity/sliding scale/spectrum. R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §90 (Leggatt LJ: “in ordinary judicial review proceedings where a test of reasonableness is applied the intensity of the court’s review will vary according to the context”); General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 at §37 (Lord Mance, referring to judicial review’s “ability to cater, in appropriate circumstances, for close examination of a claim on its merits”); R (Crompton) v South Yorkshire Police and Crime Commissioner [2017] EWHC 1349 (Admin) [2018] 1 WLR 131 at §89 (“the intensity of review of a decision subject to judicial review will vary according to context”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §51 (Lord Mance: “The common law no longer insists on the uniform application of the rigid test of irrationality once thought to be applicable”), endorsed in Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §§60, 94, 109; R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1130B (Laws LJ, describing “reasonableness” as “a spectrum, not a single point”: “the Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake”); R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 at §49 (Lord Phillips MR: “The extent to which the exercise of a statutory power is in practice open to judicial review on the ground of irrationality will depend critically on the nature and purpose of the enabling legislation”); Sheffield City Council v Smart [2002] EWCA Civ 4 [2002] HLR 639 at §42 (“the intensity of judicial review varies with the subject-matter”); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §55 (Lord Carnwath, hoping for “rather more structured guidance … than such imprecise concepts as … ‘sliding scales’”). 57.1.15 Reasonableness and rights: width 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. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which … the court is competent to reassess the balance which the decision-maker was called on to make given the subject-matter. … In some cases, the range of rational decisions is so narrow as to determine the outcome”). 57.1.16 Reasonableness in other contexts: Court as the decision-maker. Waaler v Hounslow LBC [2017] EWCA Civ 45 [2017] 1 WLR 2817 at §§21-22, discussing Socimer International Bank Ltd v Standard Bank London Ltd [2008] EWCA Civ 116 [2008] Bus LR 1304 at §66 (Rix LJ, contrasting “Wednesbury unreasonableness” with “the duty to take reasonable care” or other “entirely objective criteria: as for instance when there might be an implication of a term requiring the fixing of a reasonable price, or a reasonable time” where “the concept of reasonableness is … guided by objective criteria”; so that “pursuant to the Wednesbury rationality test, the decision remains that of the decision-maker, whereas on entirely objective criteria of reasonableness the decision-maker becomes the court itself”) and Hayes v Willoughby [2013] UKSC 17 [2013] 1 WLR 935 (grounds for lawful arrest) at §14 (contrasting “rationality” and an “external, objective standard” of “reasonableness”); R (O’Connor) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin) [2017] 1 WLR 707

GROUNDS FOR JUDICIAL REVIEW

2833 at §32 (whether “reasonably necessary” under statutory provision), §33 (“an objective test … the ultimate arbiters of whether the test is satisfied … are the courts”); B v Chief Constable of Northern Ireland [2015] EWHC 3691 (Admin) [2016] ACD 30 at §23 (Hayes test “incorporates the Wednesbury standard of review via the concept of reasonable grounds”); R (L) v Chief Constable of Surrey [2017] EWHC 129 (Admin) [2017] 1 WLR 2047 at §74 (court finding on judicial review that “no reasonable grounds necessitating [the claimant’s] arrest”); R (A) v SSHD [2007] EWCA Civ 804 at §90 (reasonableness standards within Hardial Singh principles decided objectively by the judicial review Court); R (DM (Tanzania)) v SSHD [2019] EWHC 2576 (QB) at §53 (“it is for the Court to assess whether the [detention] period in contemplation was a reasonable one in all the circumstances; the Court does not apply a Wednesbury review”); cf R (Hemmati) v SSHD [2019] UKSC 56 [2019] 3 WLR 1156 at §41 (Hardial Singh principles governing detention at common law, reflecting reasonableness in the Wednesbury sense); R (Dart Harbour and Navigation Authority) v Secretary of State for Transport, Local Government and the Regions [2003] EWHC 1494 (Admin) at §29 (Lightman J, referring to statutory “reasonableness” test as a “straightforward reconsideration … in the light of the full facts of the reasonableness of the Authority’s decision”). 57.1.17 Reasonableness reasonableness).

and

proportionality.

{58.2}

(proportionality

alongside

57.1.18 Reasonable relationship to purpose. {58.3.24} (proportionality method and common law: suitability (rational connection)). 57.1.19 Adopting a disciplined framework of questions in addressing reasonableness. {58.3.22}

57.2 Unreasonableness as a high threshold.136 Many colourful phrases have traditionally been used in public law to explain that only in a strong case will Courts intervene on grounds of unreasonableness. Linguistic epithets have tended to be either general reminders of built-in latitude warning against the forbidden substitutionary method or observations linked to features of a particular context seen to call for particular restraint. They have increasingly come to be discarded. There are dangers in appearing to set the bar too high. Reasonableness is a meaningful standard of substantive review. 57.2.1 Articulating unreasonableness: the forbidden substitutionary approach. {P15} (the forbidden method); {15.1} (‘soft’ review: the forbidden substitutionary approach); R v SSHD, ex p Brind [1991] 1 AC 696, 757F-G (Lord Ackner, explaining that the “standard of unreasonableness … has to be expressed in terms that confine the jurisdiction exercised by the judiciary to a supervisory, as opposed to an appellate, jurisdiction”), 765D (Lord Lowry, referring to “colourful statements [which] emphasise the legal principle that judicial review of administrative action is a supervisory and not an appellate jurisdiction”); R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §40 (“the court has no role to impose what it perceives as ideal solutions under cover of the Wednesbury principle’s application”). 57.2.2 Extreme language is not helpful. R (Scunthorpe United Football Club Ltd) v Greater Lincolnshire LEP Ltd [2018] EWHC 3351 (Admin) at §32 (Judge Kramer, referring to the “danger” in “the adoption of … high threshold tests”), §33 (“The question … is … was the decision in question one which a reasonable authority could reach?”); R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §32 (Lord Cooke, criticising as “unfortunately retrogressive” the idea that “only a very extreme degree [of unreasonableness] can bring an administrative decision within the legitimate scope of judicial invalidation. … It may well be, however, that the law can never be satisfied in any administrative field merely by a finding 136The

equivalent paragraph in a previous edition was relied on in Larder v Warwickshire CC 9 June 2003 unrep. at §§46, 48, 50 (EAT); R (McCormack) v St Edmund Campion Catholic School Governors [2012] EWHC 3928 (Admin) [2013] ELR 169 at §88 (Beatson J).

708

P57 Unreasonableness

that the decision under review is not capricious or absurd”); R v Devon County Council, ex p G [1989] 1 AC 573, 577F (Lord Donaldson MR: “I eschew the synonym of ‘irrational’, because, … it is widely misunderstood … as casting doubt on the mental capacity of the decision-maker”), referred to in R (Mavalon Care Ltd) v Pembrokeshire County Council [2011] EWHC 3371 (Admin) (2012) 15 CCLR 229 at §48; R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 2 AC 418, 452B-F (Lord Cooke, avoiding “admonitory circumlocutions” and “needless complexity”; preferring “unexaggerated criteria [which] give the administrator ample and rightful rein, consistently with the constitutional separation of powers”); Mohammed Jafar v SSHD [1994] Imm AR 497, 500 (preferring “unreasonableness” to “perversity”); R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96 at §40 (Lord Carnwath: “In modern terms, and with respect to Lord Diplock, ‘irrationality’ as a ground of review can surely hold its own without the underpinning of such elusive and subjective concepts as judicial ‘outrage’ (whether by reference to logical or moral standards)”). 57.2.3 Unreasonableness: a strong requirement. R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697 at §66 (Lord Carnwath and Lord Mance: “‘Irrationality’ is a high threshold”); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1074H-1075C (Lord Russell: “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”; “‘unreasonably’ is a very strong word indeed, the strength of which may easily fail to be recognised”); In re W (An Infant) [1971] AC 682, 700D-E (Lord Hailsham: “Two reasonable [persons] can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. … Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable”), cited in Tameside at 1070H. 57.2.4 Unreasonableness: a high threshold, but not unattainable. {57.4.1} 57.2.5 ‘Outrageous defiance of logic or morality’. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410G-H (Lord Diplock: “By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. … It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”), applied in R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §116; AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §97 (Lord Mance, suggesting that this formulation is apt to describe decisions such as the “familiar extreme example, a blatantly discriminatory decision directed at red-headed people”); Anwar v SSHD [2010] EWCA Civ 1275 [2011] 1 WLR 2552 at §25 (Sedley LJ, referring to this phrase in the context of a serious misuse of power). 57.2.6 Decision-maker ‘taking leave of its senses’. R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 247H, 248C-D (Lord Scarman, referring to guidance with consequences “so absurd that he must have taken leave of his senses”; “a pattern of perversity or an absurdity of such proportions that the guidance could not have been framed by a bona fide exercise of political judgment on the part of the Secretary of State”); O’Connor v Chief Adjudication Officer [1999] 1 FLR 1200, 1210F-H (“It is wrong to deduce from [the] dicta a notion of ‘extreme’ irrationality. Good old Wednesbury irrationality is about as an extreme form of irrationality as there is”). 57.2.7 ‘Perversity’. See eg Reid v Secretary of State for Scotland [1999] 2 AC 512, 541G, 542C; United Kingdom Association of Professional Engineers v Advisory Conciliation & Arbitration Service [1981] AC 424, 444D; R v Hillingdon LBC, ex p Puhlhofer [1986] AC 484, 518C; R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 534D; R v SSHD, ex p Brind [1991] 1 AC 696, 751D, 757H; cf Bramston v Haut [2012] EWCA Civ 1637 [2013] 1 WLR 1720 (a bankruptcy case) at §71 (Kitchin LJ, distinguishing between “the Wednesbury unreasonableness test” and acting “perversely”). 709

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57.2.8 Other high threshold formulations. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229 (“something so absurd that no sensible person could ever dream that it lay within the powers of the authority”), 230 (“something overwhelming”); Bromley LBC v Greater London Council [1983] 1 AC 768, 821B (Lord Diplock: “decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them”); R v Hillingdon LBC, ex p Puhlhofer [1986] AC 484, 518C-D (Lord Brightman: “unreasonableness verging on an absurdity”); R v Ministry of Defence, ex p Smith [1996] QB 517, 558C (“high” threshold); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 692d (“notoriously high” threshold); R v Lord Chancellor, ex p Maxwell [1997] 1 WLR 104, 109B (“a mountain to climb”), 109E (“Decisions so unreasonable as to warrant interference jump off the page at you”); {57.2.3} (unreasonableness: a strong requirement).

57.3 Distinct species of unreasonableness. There have been advantages in the invocation of a flexible overarching reasonableness doctrine, as a generally applicable legal criterion for substantive grounds of judicial review at common law. The originating concept of reasonableness can serve as a necessary reminder of the all-important public authority ‘primary decision-maker’ function, with the ‘built-in latitude’, and of the forbidden substitutionary method. Having said that, a number of distinct, nuanced species of substantive public law wrong can provide a specific, principled basis for judicial intervention. They can raise the focused question at the heart of the case. They may have developed in a Wednesbury incubator, but whether they all now need to march under a Wednesbury banner is debatable. Even if they are ‘unreasonable because …’ species, the key still lies in the ‘because’ part. 57.3.1 Reasonableness: the search for more specific tenets and principles. Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §55 (Lord Mance: “it is inappropriate to treat all cases of judicial review together under a general but vague principle of reasonableness, and preferable to look for the underlying tenet or principle which indicates the basis on which the court should approach any administrative law challenge in a particular situation”, giving examples of “where a common law right or constitutional principle is in issue”). 57.3.2 Substantive unfairness: a nuanced species of unreasonableness. {54.1.11} (‘conspicuous unfairness’: Elias LJ’s nuanced species of unreasonableness). 57.3.3 Unreasonableness: flaw in logic/not ‘stacking up’.137 Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin) at §86 (Dove J, explaining that a “legally erroneous decision” includes where “there is an error of reasoning which robs the decision of logic” so that the “decision … does not add up”), referring to R v Parliamentary Commissioner for Administration, ex p Balchin [1998] 1 PLR 1, 13E-F (Sedley J: “What the not very apposite term ‘irrationality’ generally means in this branch of the law is a decision which does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic”); Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §§88-89 (Chamberlain J, applying Balchin); Trail Riders Fellowship v Wiltshire County Council [2018] EWHC 3600 (Admin) at §23 (Swift J: “the decision … was not a rational decision … the reasons … are not logically connected to the question posed”); R (A) v Liverpool City Council [2007] EWHC 1477 (Admin) at §39 (“the defendant’s approach … lacks logic to such a degree as to be unreasonable”); R v Camden LBC, ex p Aranda (1998) 30 HLR 76, 84 (decision illogical); R v Stockport Justices, ex p Conlon [1997] 2 All ER 204 (decision illogical); R v SSHD, ex p Freeman 2 June 1998 unreported (approach “illogical, and therefore lacking in rationality”); R (Interbrew SA) v Competition Commission [2001] EWHC 367 (Admin) (whether reasons “stack up”); R (Norwich and Peterborough Building 137The

equivalent paragraph in a previous edition was relied on in Adamczak-Gawrychowska v Common Services Agency [2018] CSOH 18 [2018] SLT 415 (Court of Session Outer House, Scotland) at §12 (Lord Arthurson).

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Society) v Financial Ombudsman Service Ltd [2002] EWHC 2379 (Admin) at §59 (whether decision does not “add up”); cf R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWCA Civ 649 (applying EU law proportionality) at §96 (describing the situation where “the evidence referred to in the [impact assessment] simply did not stack up”). 57.3.4 Unreasonableness: lacking justification. R (Wells) v Parole Board [2019] EWHC 2710 (Admin) [2019] ACD 146 at §32 (Saini J: “A more nuanced approach in modern public law is to test the decision-maker’s ultimate conclusion against the evidence before it and to ask whether the conclusion can … be safely justified on the basis of that evidence”), §33 (“does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?”); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §§9192 (whether “incapable of rational justification”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §132 (“beyond rational justification”); R (Mackay) v Parole Board [2019] EWHC 1178 (Admin) at §38 (“whether the decision lacks … comprehensible justification”); {57.1.10} (reasonableness: whether ‘capable of being justified’). 57.3.5 Unreasonableness: not ‘sensible’. R (Mackay) v Parole Board [2019] EWHC 1178 (Admin) at §38 (Judge Kramer, asking “whether the decision lacks sensible logic”); HMB Holdings Ltd v Antigua and Barbuda [2007] UKPC 37 at §31 (“The test of irrationality will be satisfied” where decision “which no sensible person who had applied his mind to the question to be decided could have arrived at”); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1064E-F (“conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt”). 57.3.6 Unreasonableness: oppressive. R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §41 (Laws LJ: “Clearly a public body may choose to deploy powers it enjoys under statute in so draconian a fashion that the hardship suffered by affected individuals in consequence will justify the court in condemning the exercise as irrational or perverse. … It may well be that the court’s decision in such cases they would more aptly be articulated in terms of the proportionality principle. … At all events it is plain that oppressive decisions may be held repugnant to compulsory public law standards”), §45 (not oppressive to require homeless applicants to accept housing without first viewing it); R (Barry) v Liverpool City Council [2001] EWCA Civ 384 [2001] LGR 361 at §§16-18 (asking whether licence conditions “oppressive” and so unreasonable); {58.2.9} (oppression and proportionality). 57.3.7 Unreasonableness: uncertainty. R (London School of Science and Technology) v Pearson Education Ltd [2019] EWHC 3129 (Admin) at §64 (Rowena Collins Rice, describing a sanction as “unsatisfactory and unfair” where “unclear on its face, its operation is uncertain, no explanation is given for it, and it was not readily predictable”); Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74 [2016] 1 WLR 85 at §23 (considering the argument that a statutory consent was “so uncertain that it was irrational”) R v Blackpool Borough Council, ex p Red Cab Taxis Ltd [1994] COD 513 (obscurely worded condition Wednesbury unreasonable); R v Newcastle-upon-Tyne City Council, ex p Dixon (1995) 92 LGR 168, 174-178, 179; R v Bradford Metropolitan Borough Council, ex p Sikander Ali [1994] ELR 299, 308G (asking whether “this particular criterion is of so uncertain a nature as to be incapable of providing any meaningful answer which is other than arbitrary”); {55.1.6} (judicial review for uncertainty: common law standards of certainty); {1.2.15} (the rule of law and certainty/transparency); {46.1.12} (uncertainty as ultra vires/invalidity). 57.3.8 Unreasonableness: impossibility/unworkability. R (MK) v SSHD [2017] EWHC 1365 (Admin) [2017] Imm AR 1425 at §40 (Mostyn J, describing it as “unreasonable” for the SSHD to “impose requirements that make it impossible for an individual to obtain a benefit that is his by statute”), §48 (“not entitled to impose requirements that cannot, or practically cannot, be met”); R (Equality and Human Rights Commission) v Prime Minister [2011] EWHC 2401 (Admin) [2012] 1 WLR 1389 at §93 (judicial review granted, on the basis that guidance 711

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for intelligence officers “unworkable”); cf DPP v Haw [2007] EWHC 1931 (Admin) [2008] 1 WLR 379 at §43 (condition unworkable and so not prescribed by law). 57.3.9 Unreasonableness: arbitrariness. Arorangi Timberland Ltd v Minister of the Cook Islands National Superannuation Fund [2016] UKPC 32 [2017] 1 WLR 99 at §35 (“The test of arbitrariness may well be an appropriate way of testing the lawfulness of at least some ordinary administrative decisions and actions, applying the so-called Wednesbury test”); Jamaicans for Justice v Police Service Commission [2019] UKPC 12 at §24 (describing, as “fundamental common law principles governing the exercise of public functions”, the right to protection from “irrationality, fundamental unfairness or the arbitrary exercise of power”). 57.3.10 Unreasonableness: inconsistency. {55.1.20} (unjustified inconsistency: generally covered by legal criterion of reasonableness); {55.1.18} (consistency as an administrative law principle). 57.3.11 Unreasonableness: discrimination/unequal treatment. Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §25 (Lord Sumption: “A measure may … be irrational … by reason of its being discriminatory in some respect that is incapable of objective justification”); {55.1.10} (discrimination lacking objective justification as unreasonableness); {55.1.16} (equal treatment and reasonableness: drawing unreasonable distinctions); (equal treatment and reasonableness: unreasonable failure to treat differently). 57.3.12 Delay as unreasonableness/unreasonable delay.138 R (O) v SSHD [2019] EWHC 148 (Admin) at §67 (“decisions must be taken within in a reasonable time”); R (MK) v SSHD [2019] EWHC 3573 (Admin) [2020] 4 WLR 37 at §§155-157 (applying “rationality approach” to asylum decision-making delay); R (Baraka) v SSHD [2018] EWHC 1549 (Admin) at §31 (delay in providing accommodation under Immigration and Asylum Act 1999 s.4 not unreasonable); R (Birks) v Commissioner of Police of the Metropolis [2018] EWHC 807 (Admin) [2018] ICR 1400 at §33 (Garnham J: “The delay in determining whether or not the Claimant should face disciplinary charges has been extraordinary and indefensible”); R (Sathanantham) v SSHD [2016] EWHC 1781 (Admin) [2016] 4 WLR 128 at §77 (“unacceptable delay”); Oliveira v Attorney General of Antigua and Barbuda [2016] UKPC 24 at §40 (“relevant test” being whether citizenship determination made “within a reasonable time”); R (C) v Secretary of State for Work and Pensions [2015] EWHC 1607 (Admin) [2015] ACD 118 at §§34, 93-94 (unacceptable and unlawful failure to determine personal independence payments claims within a reasonable time); R (HA (Nigeria) v SSHD [2012] EWHC 979 (Admin) at §§169, 171 (“manifestly unreasonable” delay to secure transfer of immigration detainee to hospital), applying R (D) v SSHD [2004] EWHC 2857 (Admin) at §166 (duty expeditiously to take reasonable steps to obtain appropriate medical advice and transfer); R (M) v Criminal Injuries Compensation Authority [2002] EWHC 2646 (Admin) at §39 (unreasonable delay in dealing with compensation claim); R v Children and Family Court Advisory and Support Service [2003] EWHC 235 (Admin) [2003] 1 FLR 953 at §91(3) (delay “controlled by the application of established public law principles (which include the Wednesbury test)”); R v Gloucestershire County Council, ex p P [1994] ELR 334, 337F (whether delay constituted a breach of statutory duty and/or was unreasonable), 338D, 340B-D (delay not “reprehensible”); R v Merton LBC, ex p Sembi (2000) 32 HLR 439 (whether unreasonable delay so that no lawful discharge of statutory duty); R (J) v Newham LBC [2001] EWHC Admin 992 (2002) 5 CCLR 302 (irrational to postpone Children Act assessments because of intended housing transfer); R v Cambridge County Council, ex p Leach [1998] COD 101 (whether discharge of statutory duties culpably slow). 57.3.13 Unsustainable conclusion of fact. {49.4} 57.3.14 Duty of sufficient inquiry: an aspect of reasonableness. {51.1.3} 138The

equivalent paragraph in a previous edition was relied on in Ngunguru [2011] NZHC 470 [2011] NZAR 354 at §25 (Asher J); Al Fawwaz [2015] EWHC 166 (Admin) at §82 (Burnett LJ); JJ Management LLP v HMRC [2019] EWHC 2006 (Admin) [2020] QB 619 at §77 (Nugee J).

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57.3.15 Relevancy/irrelevancy: the role of reasonableness. {56.2.4} (evaluative relevance: primarily a matter for the decision-maker); {56.3.2} (weight is for the primary decisionmaker’s evaluative assessment). 57.3.16 Lack of proportionality at common law. {58.3} (proportionality at common law). 57.3.17 Soft review and the forbidden method. {P15} (the forbidden method); {15.1} (‘soft’ review: the forbidden substitutionary approach); {13.1} (‘soft’ review: reasonableness standard).

57.4 Unreasonableness in action. The reasonableness principle operates as all of the following: (1) a safety-net ensuring that merits outcomes and evaluations of policy, judgment and discretion are not above the law; (2) a flexible standard capable of enhanced or relaxed scrutiny; (3) a broad principle to nurture and stabilise emergent distinct subspecies of substantive public law wrong; and (4) a meaningful standard used successfully, where appropriate, in everyday cases. In living memory, unreasonableness was advanced with timidity, meeting with virtually no success, except perhaps where it was combined with other ways of analysing the same error of approach. Those days have gone. In upholding a reasonableness claim, judges are not ‘stigmatising’ decision-makers, or their decisions. The public law Court is applying a meaningful standard and a practical and effective safeguard. 57.4.1 Unreasonableness: a high threshold, but not unattainable.139 R v DPP, ex p Manning [2001] QB 330 at §23 (Lord Bingham CJ and Morison J, explaining that the Court is slow to interfere on unreasonableness grounds but “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”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010 at §155 (Sir Terence Etherton MR, Green and Dingemans LJJ: “it remains the constitutional duty of the court to ensure that the decision is lawful. The fact that the decision is in an area where the decision maker might be best placed to make the assessment is not a bar to a finding of irrationality”); R (Ahmad) v Newham LBC [2009] UKHL 14 [2009] 3 All ER 755 at §55 (Lord Neuberger, explaining that although “the courts should be very slow to interfere on the ground of irrationality”, nevertheless a housing allocation scheme is “susceptible to judicial review on grounds of irrationality” since the contrary view “would represent an abdication of judicial responsibility”); R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 at §54 (“Constitutional dangers exist no less in too little judicial activism as in too much”); R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §107 (Rose LJ: “The threshold for establishing irrationality is very high, but it is not insuperable”, here “I have concluded that the threshold is met”); R (Suny) v SSHD [2019] EWCA Civ 1019 at §33 (irrationality threshold “described … as ‘notoriously high’”), §42 (but decision irrational here); R (Torpey) v DPP [2019] EWHC 1804 (Admin) [2019] ACD 98 (granting judicial review of decision not to prosecute, for irrationality), §43 (despite “a very strict self-denying ordinance”); R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §57 (“the public law doctrine of irrationality … sets a deliberately high threshold”), §145 (but irrational here); R (Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA 594 at §43 (Lindblom LJ: “an allegation of irrationality is never easy to establish”). 57.4.2 Unreasonableness in action: illustrations from SC/HL. R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2019] UKSC 58 [2020] 2 WLR 1 at §32 (“The inspector’s assessment was irrational”); JR55 v Northern Ireland 139The

equivalent paragraph in a previous edition was relied on in Tower Bridge v HMRC [2019] UKFTT 176 (TC) at §25.6 (Judge Rupert Jones).

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Commissioner for Complaints [2016] UKSC 22 [2016] 4 All ER 779 at §30 (recommendation “lacking any rational basis”); In re appeals by Governing Body of JFS [2009] UKSC 1 [2009] 1 WLR 2353 at §23 (unreasonable for LSC to withdraw funding) R (Walker) v Secretary of State for Justice [2009] UKHL 22 [2010] 1 AC 553 at §3 (not rational for Secretary of State to fail to provide systems to allow IPP prisoners to show eligibility for release on parole); In Re Duffy [2008] UKHL 4 at §§28, 53 (unreasonable appointment of hardliners to Parades Commission). 57.4.3 Unreasonableness in action: 2020 illustrations. (up to September 2020) R (Pantellerisco) v Secretary of State for Work and Pensions [2020] EWHC 1944 (Admin) (Universal Credit regulations calculation irrational); R (Deputy Chief Constable of Kent Police) v Chief Constable of Kent Police [2020] EWHC 2099 (Admin) at §160 (decision that standards not breached was “not open to him”); R (Chief Constable of Dyfed Powys Police) v Police Misconduct Tribunal [2020] EWHC 2032 (Admin) at §71 (finding “irrational”); R (JG) v Southwark LBC [2020] EWHC 1989 (Admin) at §73 (“irrational” care and support provision); R (Somerset County Council) v Secretary of State for Education [2020] EWHC 1675 (Admin) at §§80, 123 (“irrational conclusion of no negative impact”); R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §73 (considering “the rationality of failing to make an exception for this particular group of people”), §76 (“It is irrational to refuse to sort out this problem”), §107 (“refusal to put in place a solution to this very specific problem” irrational “because no reasonable SSWP would have struck the balance in that way”); R (Chief Constable of West Midlands Police) v Panel Chair, Police Misconduct Panel [2020] EWHC 1400 (Admin) [2020] ACD 88 at §65 (Panel’s conclusions “properly to be described as irrational”); R (Lewis) v Senior Coroner for North West Kent [2020] EWHC 471 (Admin) (2020) 174 BMLR 160 at §31 (withdrawal of issue of neglect from jury “was not … reasonably open to the coroner”). 57.4.4 Unreasonableness in action: 2019 illustrations. R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2019] UKSC 58 [2020] 2 WLR 1 at §32 (“The inspector’s assessment was irrational”); R (DPP) v Walsall Magistrates’ Court [2019] EWHC 3317 (Admin) [2020] ACD 21 at §§48, 50 (magistrates could not “reasonably conclude” that disclosure orders appropriate); R (Chief Constable of Northumbria) v Police Appeals Tribunal [2019] EWHC 3352 (Admin) at §62 (decision to substitute a final written warning was irrational); R (AB) v Ealing LBC [2019] EWHC 3351 (Admin) [2020] ACD 23 at §§52-53 (conclusion irrational, in the light of matters not considered); R (Chief Constable of Northumbria) v Independent Office for Police Conduct [2019] EWHC 3169 (Admin) at §§59, 71 (unreasonable because no proper basis for conclusion that case to answer); R (O) v SSHD [2019] EWHC 2734 (Admin) at §66 (unreasonable failure to consider whether to relax affordability criteria); R (Wells) v Parole Board [2019] EWHC 2710 (Admin) [2019] ACD 146 at §36 (unreasonable conclusion that risks could not be managed in the community); Satnam Millenium Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 2631 (Admin) at §63 (Secretary of State’s “approach is irrational”); R (WEN) v SSHD [2019] EWHC 2104 (Admin) at §63 (irrational to conclude that claimant’s evidence could not lead to conclusion that she had been trafficked); R (Phoenix Life Holdings Ltd) v HMRC [2019] EWHC 2043 (Admin) [2019] STC 1829 at §79 (decision was “irrational”); R (Torpey) v DPP [2019] EWHC 1804 (Admin) [2019] ACD 98 at §§28, 62 (successful irrationality challenge to decision not to prosecute); R (McLennan) v Medway Council [2019] EWHC 1738 (Admin) [2019] PTSR 2025 at §37 (stance which “no reasonable authority could take”); R (Suny) v SSHD [2019] EWCA Civ 1019 at §42 (“not one of the points relied on … could found a rational conclusion that this vacancy was not genuine”), §54 (“the reasons given by the Secretary of State are not … capable of justifying his conclusion”); R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §145 (“it was irrational … for the Secretary of State to proceed as he did”); R (EK) v SSHD [2019] EWHC 1696 (Admin) [2019] ACD 87 at §54 (irrational credibility decision in trafficking claim case); Professional Standards Authority for Health and Social Care v General Medical Council [2019] EWHC 1638 (Admin) at §134 (decision on sanction “one which no reasonable tribunal properly directed and applying the law could 714

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reach on the facts of the case”); SS v SSHD [2019] EWHC 1402 (Admin) [2019] ACD 83 at §107 (unreasonable refusal to accept that representations constituting a fresh claim); R (Mackay) v Parole Board [2019] EWHC 1178 (Admin) at §51 (not “logically justifiable”); R (NS) v SSHD [2019] EWHC 861 (Admin) [2019] ACD 60 at §100 (finding “not open to the Defendant” and “perverse”); R (Gwynt-y-Mor Offshore Wind Farm Ltd) v Gas and Electricity Markets Authority [2019] EWHC 654 (Admin) [2019] ACD 54 at §§153, 156, 162 (approach irrational); R (Sergeant) v First Minister of Wales [2019] EWHC 739 (Admin) [2019] 4 WLR 64 at §80 (irrational to breach procedural legitimate expectation as to independent decisions on scope of inquiry); R (JA) v London Borough of Bexley [2019] EWHC 130 (Admin) at §47 (decision that claimant having recourse to other sources of funds one which no reasonable authority could have reached on the evidence available); R (Chief Constable of British Transport Police) v Police Appeals Tribunal [2019] EWHC 73 (Admin) at §57 (Tribunal’s finding was irrational and an error of law). 57.4.5 Unreasonableness in action: 2018 illustrations. Trail Riders Fellowship v Wiltshire County Council [2018] EWHC 3600 (Admin) at §23 (“the decision … not to consult was not a rational decision”); R (Chief Constable of Northumbria Police) v Police Misconduct Panel [2018] EWHC 3533 (Admin) at §§46, 58, 64 (irrationality in panel’s decision); R (K) v SSHD [2018] EWHC 2951 (Admin) [2019] 4 WLR 92 at §§22-23 (42% cut in support for victims of human trafficking irrational); R (Ames) v Lord Chancellor [2018] EWHC 2250 (Admin) [2018] ACD 115 at §81 (decision irrational given errors and breach of transparency duty); R (HMRC) v Maidstone Crown Court [2018] EWHC 2219 (Admin [2018] ACD 106 at §§28, 31 (perverse conclusion as to retention of seized materials); R (CP (Vietnam) v SSHD [2018] EWHC 2122 (Admin [2018] ACD 114 at §67 (competent authority could not “rationally have concluded that they had sufficient information to come to a (negative) conclusive grounds decision”); R (Purvis) v DPP [2018] EWHC 1844 (Admin) [2018] 4 WLR 118 §§65, 85 (unreasonable decision not to prosecute); R (Law Centres Federation Ltd) v Lord Chancellor [2018] EWHC 1588 (Admin) at §§80, 93 (“this decision was one that no reasonable decisionmaker could reach on the state of the evidence … gathered and in the absence of further inquiry”); R (ROO (Nigeria)) v SSHD [2018] EWHC 1295 (Admin) at §87 (decision to reject material as constituting a fresh claim irrational); R (Treohan) v Inner London Crown Court [2018] EWHC 1137 (Admin) [2019] 1 Cr App R 8 at §9 (unreasonable refusal of bail); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §§91-92 (coroner’s policy); R (KS) v Haringey LBC [2018] EWHC 587 (Admin) [2018] HLR 41 at §49 (irrational conclusion in the light of assessment made). 57.4.6 Unreasonableness and fundamental rights: anxious scrutiny. {32.4} (anxious scrutiny). 57.4.7 Unreasonable rules/regulations/orders. R (Pantellerisco) v Secretary of State for Work and Pensions [2020] EWHC 1944 (Admin) at §§47, 81 (unreasonable regulations); R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §§76, 107 (unreasonable refusal to adjust regulations); R (Imam) v SSHD [2019] EWCA Civ 1760 at §18 (“a provision in the Rules can be struck down if it is irrational or unreasonable in the Wednesbury sense”); R (Britcits) v SSHD [2017] EWCA Civ 368 [2017] 1 WLR 3345 at §§67-71 (whether immigration rule unreasonable); R v Immigration Appeal Tribunal, ex p Manshoora Begum [1986] Imm AR 385, 394 (immigration rule partial and unequal in its operation, manifestly unjust and unreasonable); AM (Serbia) v SSHD [2007] EWCA Civ 16 at §29 (unreasonable AIT Procedure Rule); O’Connor v Chief Adjudication Officer [1999] 1 FLR 1200, 1210F-H (Auld LJ: “Irrationality is a separate ground for challenging subsidiary legislation”); McEldowney v Forde [1971] AC 632, 643F (asking whether regulation “too vague and so arbitrary as to be wholly unreasonable”); {32.1.19} (Westminster-approved matters: whether modified review). 57.4.8 Unreasonable policy. R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392 [2006] 1 WLR 2649 at §82 (cancer drug availability policy unreasonable); R v London Borough of Lambeth, ex p Ashley (1997) 29 HLR 385 (housing allocation points scheme illogical and irrational); R v Tower Hamlets LBC, ex p Uddin (2000) 32 HLR 391, 403 715

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(housing transfer points scheme irrational); R v North Derbyshire Health Authority, ex p Fisher (1998) 10 Admin LR 27, 43G (policy “unsustainable”), 46H (a conclusion of “Wednesbury unreasonableness”); R v Islington LBC, ex p Reilly (1999) 31 HLR 651 (policy unreasonable because incapable of producing a fair assessment of relative housing needs); cf R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977 (policy needing a proper starting-point), 992G (“it is important that the starting point against which the exceptional circumstances have to be rated is properly evaluated”). 57.4.9 Reasonableness following choice. R v SSHD, ex p McCartney [1994] COD 528 (having exercised the power to consult the Lord Chief Justice, unreasonable to reject his recommendation); R v London Borough of Newham, ex p Gentle (1994) 26 HLR 466, 471 (no duty to operate appeal mechanism, but having chosen to do so, duty not to operate an irrational/unfair policy); cf {61.1.28} (fairness following choice: procedural fairness when taking voluntary action). 57.4.10 Whether to prefer ultra vires rather than unreasonableness. Bromley LBC v Greater London Council [1983] 1 AC 768, 820D-E, 830F-G, 835F (preferring to identify ultra vires rather than unreasonableness); Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 192F-H (“there is no specific statutory background by reference to which the appropriate Wednesbury questions could be formulated”); R v Inner London Education Authority, ex p Brunyate [1989] 1 WLR 542, 549E-F (Lord Bridge: “I do not believe that this is a matter of reasonableness. The true view, in my opinion, is that [it] … is an unlawful exercise of the power conferred”); Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735, 753E-G (describing unreasonableness of subordinate legislation as a particular application of “the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute”).

716

P58 Proportionality. Often, a public authority must show that its action was rationally connected to a legitimate aim, as the least intrusive effective response, striking a fair balance. 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

58.1 Proportionality.140 Judicial review frequently succeeds on the basis that the public authority has breached the proportionality principle. Proportionality is a method involving a disciplined framework for substantive review. It has been applied in the supervisory jurisdiction: to test the justification for interferences with EU, HRA and common law rights; where specified by Parliament; in cases concerning the imposition of sanctions; and as the test for justifying departure from a substantive legitimate expectation. Its wider application raises open questions. Its characteristics include: a methodical analytical framework; onus on the state to justify its action; variable standards of scrutiny; and an in-built recognition of latitude for the public authority as primary decision-maker. 58.1.1 Proportionality method. {P37} 58.1.2 Proportionality is not substitutionary review. R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 at §133 (Lord Neuberger, explaining that a “move from rationality to proportionality” would not “displace the relevant member of the executive as the primary decision-maker”), §272 (Lord Kerr: “a review based on proportionality is not one in which the reviewer substitutes his or her opinion for that of the decision-maker. At its heart, proportionality review requires of the person or agency that seeks to defend a decision that they show that it was proportionate to meet the aim that it professes to achieve. It does not demand that the decision-maker bring the reviewer to the point of conviction that theirs was the right decision in any absolute sense”); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §31 (Lord Sumption: “However intense or exacting the standard of review in cases where Convention rights are engaged, it stops short of transferring the effective decision-making power to the courts”), §34 (“The court does not make the substantive decision in place of the executive”). 58.1.3 HRA violation. {P59}; {37.1.3} (proportionality and HRA:ECHR rights). 58.1.4 Proportionality and EU law. {37.1.10} (EU proportionality formulations). 58.1.5 Proportionality: latitude and intensity of review. {58.5} 58.1.6 Proportionality and substantive legitimate expectation. {54.2.6} (substantive legitimate expectation: proportionality test (justifying the impact on the legitimate expectations)). 58.1.7 Statutory proportionality. R (Bloomsbury Institute Ltd) v Office for Students [2020] EWHC 580 (Admin) at §251-261 (judicial review of compliance with statutory duty to “ensure that … registration conditions … are proportionate to the … assessment of the regulatory risk”) (CA is [2020] EWCA Civ 1074); Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §§105-108 (discussing court’s approach to public authority’s “statutory obligation to act in a way which was proportionate”); 140The

equivalent paragraph in a previous edition was relied on in Quila v SSHD [2010] EWCA Civ 1482 [2011] 3 All ER 81 at §36 (Sedley LJ).

GROUNDS FOR JUDICIAL REVIEW

R (Dolan) v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin) at §57 (statutory duty to include in regulations only those restrictions which the minister “considers … is proportionate to what is sought to be achieved”). 58.1.8 Proportionality duty arising under policy guidance. R (Yavuz) v Chief Constable of West Yorkshire [2016] EWHC 2054 (Admin) [2017] PTSR 228 at §67 (statutory guidance requiring consideration of whether an investigation was “proportionate”), §153 (judicial review court deciding “that overall the investigation was a proportionate one”); {6.2.6} (duty of adherence to policy guidance). 58.1.9 Proportionality and the 1980 COM Recommendation: Schiemann J’s observation. R v Secretary of State for Transport, ex p Pegasus Holdings (London) Ltd [1988] 1 WLR 990, 1001E-F (Schiemann J: “It would, perhaps, be difficult for anyone appearing for the Government to take issue on the principle of proportionality being applied by administrative authorities, bearing in mind Recommendation No R(80)2 of the Committee of Ministers Concerning the Exercise of Discretionary Powers by Administrative Authorities that was adopted by the Committee of Ministers of the Council of Europe on 11 March 1980 and that recommends governments of member states to be guided in their law and administrative practice by the principles annexed to that recommendation, one of which basic principles is that an administrative authority when exercising a discretionary power should maintain a proper balance between any adverse effects that its decision may have on the rights, liberties or interests of persons and the purpose that it pursues”). 58.1.10 Proportionality is distinct from arbitrariness. Arorangi Timberland Ltd v Minister of the Cook Islands National Superannuation Fund [2016] UKPC 32 [2017] 1 WLR 99 at §35 (“The test of arbitrariness may well be an appropriate way of testing the lawfulness of at least some ordinary administrative decisions and actions, applying the so-called Wednesbury test. However, the proportionality exercise is rather different”).

58.2 Proportionality alongside reasonableness. The proportionality method is frequently compared and contrasted with other public law principles, especially reasonableness. Lack of proportionality has for a long time been seen as an indicator of unreasonableness. 58.2.1 Lack of proportionality as an indicator of unreasonableness. R (McGrath) v Secretary of State for Work and Pensions [2012] EWHC 1042 (Admin) at §33 (Cranston J: “An exercise of discretion which is disproportionate is indicative of administrative action which is Wednesbury unreasonable”); Reid v Secretary of State for Scotland [1999] 2 AC 512, 541G (Lord Clyde, referring to judicial review as being available where a decision is “found to be perverse, or irrational, or grossly disproportionate to what was required”); R v SSHD, ex p Brind [1991] 1 AC 696, 759D (whether “the Secretary of State has used a sledgehammer to crack a nut” as “a picturesque way of describing the Wednesbury ‘irrational’ test”), 762DE (“Clearly a decision by a minister which suffers from a total lack of proportionality will qualify for the Wednesbury unreasonable epithet. It is, ex hypothesi, a decision which no reasonable minister could make”); R v General Medical Council ex p Colman [1990] 1 All ER 489, 503j-504e (proportionality “an aspect of the submission based on Wednesbury unreasonableness”); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 246H (Lord Scarman, referring to the argument that guidance was “so disproportionately disadvantageous … that it is a perversely unreasonable exercise of the power conferred by the statute”); R v Secretary of State for Transport, ex p Pegasus Holdings (London) Ltd [1988] 1 WLR 990, 1001C-H, 1002D-E; R v Brent LBC, ex p Assegai The Times 18 June 1987 (response clearly out of proportion to allegations against the claimant providing a clear indication of Wednesbury unreasonableness); R v Secretary of State for Health, ex p United States Tobacco International Inc [1992] QB 353, 366G (counsel accepting “for the purposes of this case … that proportionality should be considered simply as a facet of irrationality”); R v Secretary of State for Health, ex p Hickey [1992] COD 482 (whether doctor’s remuneration so excessive as to be outside range of lawful decisions); R v SSHD, ex p Cox (1993) 5 Admin LR 17, 27G (“accepted that in English law [proportionality] is a matter which can be considered as an indication of unreasonableness”); R v University of 718

P58 Proportionality

Central England, ex p Iqbal Sandhu [1999] ELR 121, 132H-133E (award of no marks for late dissertation not disproportionate, because no irrationality or error of law); R (Isle of Anglesey County Council) v Secretary of State for Work and Pensions [2003] EWHC 2518 (Admin) [2004] LGR 614 at §25 (proportionality of recoupment of overpaid housing benefit tested by reference to Wednesbury test). R (Tucker) v Secretary of State for Social Security [2001] EWCA Civ 1646 [2002] HLR 500 at §§25-26 (Court considering whether housing benefit regulation infringing “proportionality” at common law, under the head of “irrationality”). 58.2.2 Proportionality as a general ground: reasonableness based on proportionality. {58.3.17} 58.2.3 Rationality is part of proportionality. R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §32 (Lord Sumption: “rationality is a minimum condition of proportionality, but is not the whole test. Nonetheless, there are cases where the rationality of a decision is the only criterion which is capable of judicial assessment”). 58.2.4 Proportionality more exacting that Wednesbury reasonableness. R (H) v A City Council [2011] EWCA Civ 403 [2011] UKHRR 599 at §§43-44 (wrong to equate proportionality and Wednesbury: “it is elementary that the two are fundamentally different”); R (Brookes) v Secretary of State for Work and Pensions [2010] EWCA Civ 420 [2010] 1 WLR 2448 at §41 (comparing Wednesbury and proportionality); R v MAFF, ex parte First City Trading [1997] 1 CMLR 250 at §§68-69 (Laws J: “Wednesbury and European review are different models – one looser, one tighter – of the same juridical concept, which is the imposition of compulsory standards on decision-makers so as to secure the repudiation of arbitrary power”); R v Secretary of State for Health, ex p Eastside Cheese Company [1999] EuLR 968 (EU test whether exercise of power “had been objectively justified and had been shown not to be disproportionate … The test is more demanding than that of ‘manifest error’ and is also more demanding than that of Wednesbury unreasonableness”). 58.2.5 Proportionality more exacting than anxious scrutiny. {58.3.15} (proportionality more intense/sophisticated than Smith test anxious scrutiny). 58.2.6 Reasonableness: stumbling towards an equivalent principle. Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §105 (Lord Sumption: “although English law has not adopted the principle of proportionality generally, it has for many years stumbled towards a concept which is in significant respects similar, and over the last three decades has been influenced by European jurisprudence even in areas of law lying beyond the domains of EU and international human rights law”). 58.2.7 Proportionality and reasonableness: often yielding the same result. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §80 (outcome would be the same, even applying the test of proportionality); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §57 (Lord Carnwath: “in many cases, perhaps most, application of a proportionality test is unlikely to lead to a different result from traditional grounds of review”); R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 2 AC 418, 439E-F (Lord Slynn: “the distinction between the two tests in practice is in any event much less than is sometimes suggested. The cautious way in which the European Court usually applies this test, recognising the importance of respecting the national authority’s margin of appreciation, may mean that whichever test is adopted, and even allowing for a difference in onus, the result is the same”), 1288G-H (Lord Cooke: “on the particular facts of this case the European concepts of proportionality and margin of appreciation produce the same result as what are commonly called the Wednesbury principles. Indeed in many cases that is likely to be so”); R (British Civilian Internees – Far Eastern Region) v Secretary of State for Defence [2003] EWCA Civ 473 [2003] QB 1397 at §40 (“Just as in satisfying the requirements of proportionality, so too in meeting the Wednesbury test, the measures designed to further the objective must be rationally connected to it”); R v SSHD, ex p Fayed [2001] Imm AR 134 at §40 (“In simple language, what is said is that the decision was so out of proportion, or, in simpler language still, so much of an over-reaction, to the unimportance of the facts relied on that no sensible person could have made it. The case 719

GROUNDS FOR JUDICIAL REVIEW

having been put that way, the substance of it, as [counsel] has accepted, can be seen to be conventional irrationality”), §91 (“there will be very few cases where a decision which would otherwise be regarded as rational is struck down because it is found to be disproportionate”). 58.2.8 Abuse of power encompassing proportionality. R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1129F-G (Laws LJ: “Abuse of power has become, or is fast becoming, the root concept which governs and conditions our general principles of public law. It may be said to be the rationale of the doctrines enshrined in [Wednesbury] [1948] 1 KB 223 and [Padfield] [1968] AC 997, of illegality as a ground of challenge, of the requirement of proportionality, and of the court’s insistence on procedural fairness”); {53.1.2} (duty to promote and not frustrate the legislative purpose: the Padfield principle); {45.2.5} (abuse of power as a root concept). 58.2.9 Oppression and proportionality. R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §41 (Laws LJ: “a public body may choose to deploy powers it enjoys under statute in so draconian a fashion that the hardship suffered by affected individuals in consequence will justify the court in condemning the exercise as irrational or perverse. … It may well be that the court’s decision in such cases today would more aptly be articulated in terms of the proportionality principle”); R v Eastbourne Magistrates’ Court, ex p Hall [1993] COD 140 (poll-tax default committal decision harsh and oppressive and as such lacking in proportionality); R v O’Kane and Clarke, ex p Northern Bank Ltd [1996] STC 1249, 1269j (statutory notices “grossly oppressive and unfair and thus ‘irrational’ within the meaning of that term in the field of judicial review”); {57.3.6} (unreasonableness: oppressive).

58.3 Proportionality at common law. The proportionality method, including its variable (and often close) standard of scrutiny, has influenced domestic administrative law. Proportionality has not replaced reasonableness. Proportionality reasoning features strongly in common law judicial review cases in certain areas, notably: sanctions and penalties, fundamental rights, and substantive legitimate expectations. Disproportionate public authority action is a nuanced species of unreasonableness. The virtues of an equivalent disciplined framework of questions can prove irresistible. 58.3.1 The proportionality method. {P37} 58.3.2 Lack of proportionality as an indicator of unreasonableness. {58.2.1} 58.3.3 No general common law duty of proportionality. R (Hackney LBC) v Secretary of State for Housing and Local Government [2019] EWHC 1438 (Admin) at §37 (Andrews J: “The concept of proportionality only arises if the Court is required to consider whether an act of a public body is justified under EU law … or whether there is an interference with rights arising under the ECHR”); R (Horeau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) [2019] 1 WLR 4105 (DC) at §103 (no common law fundamental rights in play), §95 (“the test for judicial review is irrationality. The test is not proportionality. Below the level of the Supreme Court it is not possible to change the law in this respect”) (CA is [2020] EWCA Civ 1010 at §148); R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 at §131 (Lord Neuberger: “The appellants raise the argument that the time has come to reconsider the basis on which the courts review decisions of the executive, and in particular that the traditional Wednesbury rationality basis for challenging executive decisions should be replaced by a more structured and principled challenge based on proportionality”), §132 (“It would not be appropriate for a five-Justice panel of this court to accept, or indeed to reject, this argument, which potentially has implications which are profound in constitutional terms and very wide in applicable scope”). 58.3.4 Uncertainty as to role of proportionality at common law. Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §246 (Lord Carnwath: “it is at best uncertain to what extent the proportionality test … has become part of domestic public law”). R v Plymouth City Council, ex p Plymouth & South Devon Cooperative Society Ltd [1993] 2 PLR 720

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75, 88A-B (status of proportionality as an instrument of English judicial review uncertain); R v Secretary of State for the Environment, ex p National & Local Government Officers’ Association (1993) 5 Admin LR 785, 799E, 800E-801C (proportionality not yet available in a challenge to a decision of the Secretary of State, albeit countenancing the possibility of it being available against other subordinate bodies); R v SSHD, ex p Fayed [2001] Imm AR 134 at §§40, 91 (not necessary to decide whether separate ground of review). 58.3.5 Countenancing proportionality as a general common law principle. General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 at §20 (Lord Kerr: “there have been suggestions that proportionality should join the pantheon of grounds for challenge in the domestic, non-human rights field”); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §55 (Lord Carnwath: “It is to be hoped that an opportunity can be found in the near future for an authoritative review in this court of the judicial and academic learning on [the] issue, including relevant comparative material from other common law jurisdictions”, the issue being “whether this court should authorise a general move away from the traditional judicial review tests to one of proportionality”); R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 at §282 (Lord Kerr: “I envisage a more loosely structured proportionality challenge where a fundamental right is not involved. As Lord Mance said in Kennedy, this involves a testing of the decision in terms of its ‘suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages’”); R (Hurley) v Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin) [2016] PTSR 636 at §42 (a step which only the SC can take); Somerville v Scottish Ministers [2007] UKHL 44 [2007] 1 WLR 2734 at §§55-56, 82, 147, 198 (leaving open whether proportionality an independent ground for judicial review); R (British Civilian Internees – Far Eastern Region) v Secretary of State for Defence [2003] EWCA Civ 473 [2003] QB 1397 at §35 (“we have difficulty in seeing what justification there now is for retaining the Wednesbury test”), §37 (but laying Wednesbury to rest “is a step which can only be taken by the [Supreme Court]”). 58.3.6 General principle of proportionality at common law: Lord Diplock’s prophesy. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410E (Lord Diplock, contemplating “the possible adoption in the future of the principle of ‘proportionality’”); R v SSHD, ex p Brind [1991] 1 AC 696, 750D-F (Lord Roskill: “the present is not a case in which the first step can be taken … [b]ut so to hold in the present case is not to exclude the possible future development of the law in this respect, a possibility which has already been canvassed in some academic writings”), 749H (referring to “possible future development of the law”). 58.3.7 General principle of proportionality at common law: Lord Slynn’s endorsement. R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §51 (Lord Slynn, referring to EU law proportionality and Wednesbury: “the difference in practice is not as great as is sometimes supposed. The cautious approach of the European Court of Justice in applying the principle is shown inter alia by the margin of appreciation it accords to the institutions of the Community in making economic assessments. I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that this principle is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing”); R (Tucker) v Secretary of State for Social Security [2001] EWCA Civ 1646 [2002] HLR 500 at §§25-26 (Court considering whether housing benefit regulation infringing “proportionality” at common law, under the head of “irrationality”, by reference to Lord Slynn’s observation in Alconbury). 58.3.8 General principle of proportionality at common law: potentially profound implications. Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624 at §42 (Lord Carnwath, referring to “the potentially profound constitutional implications of a decision to replace the traditional Wednesbury tests for administrative decisions in general”), 721

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referring to R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 §132 (Lord Neuberger, saying of the argument that “the traditional Wednesbury rationality basis for challenging executive decisions should be replaced by a more structured and principled challenge based on proportionality” that “this argument … potentially has implications which are profound in constitutional terms and very wide in applicable scope”). 58.3.9 Proportionality featuring at common law. Reid v Secretary of State for Scotland [1999] 2 AC 512, 541G (Lord Clyde, referring to judicial review as being available where a decision is “found to be perverse, or irrational, or grossly disproportionate to what was required”); R (Quila) v SSHD [2010] EWCA Civ 1482 [2011] 3 All ER 81 (CA) at §36 (Sedley LJ: “What is … clear … is that proportionality, although it may well overlap in particular cases with irrationality and even tend to subsume it, now has a life of its own in public law”); R (Knight) v Secretary of State for Transport [2017] EWHC 1722 (Admin) [2017] ACD 102 at §58 (Teare J: “where … the Secretary of State concludes that there has been fraud or other dishonest conduct the Secretary of State must then consider whether the reasonable and proportionate course is not to deprive the salvor of an award of salvage but whether deprivation of part only of the salvage award would be the reasonable and proportionate response”); R v Manchester Metropolitan University, ex p Nolan [1994] ELR 380, 395D (Sedley J, proceeding on the basis “that proportionality is potentially available today as a discrete head of challenge in appropriate cases”); R v Coventry City Council, ex p Phoenix Aviation [1995] 3 All ER 37, 63c (council’s resolution to ban Phoenix “was wholly disproportionate to the security risk presented at that time”); Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34 at §25 (Lord Carnwath: “As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking into account of any more economic ways of achieving the same objective”). 58.3.10 Common law variable level of intensity. KV (Sri Lanka) v SSHD [2018] EWCA Civ 2483 at §16 (on statutory appeal against deprivation of citizenship, scrutiny not limited to irrationality test), §20 (deprivation of citizenship, where individual now unable to resume previously enjoyed foreign citizenship: “will necessarily involve a balancing exercise and a judgment as to whether in all the circumstances deprivation of citizenship is proportionate”); 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”); {31.4.6} (unreasonableness as a flexi-principle); {57.1.14} (unreasonableness as variable intensity/sliding scale/spectrum). 58.3.11 Heightened reasonableness scrutiny at common law: fundamental rights. R (Elgizouli) v SSHD [2020] UKSC 10 [2020] 2 WLR 857 at §178 (Lord Reed: “the intensity of rationality review depends on the context, and … a more rigorous approach is required when the courts are reviewing the exercise of discretion in contexts where fundamental rights are at stake”, referring to Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §§105-106, 114); R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697 at §66 (Lord Carnwath and Lord Mance: “There may be scope in an appropriate case to test the legitimacy of the [impugned action] by reference to a broader framework of proportionality”). 58.3.12 Common law proportionality in a rights case: Anthony Lester QC’s submission in Brind. R v SSHD, ex p Brind [1991] 1 AC 696, 705H-707B (Anthony Lester QC, with David Pannick: “In the context of judicial review … a stricter scrutiny is involved where fundamental rights are at stake. … The court will therefore review the minister’s purported exercise of power on the basis of proportionality, which is a principle of English public law. … The court should here apply the heightened scrutiny test applicable because the case concerns fundamental freedoms. … The courts are wrong to consider that the application of the doctrine of proportionality will cause chaos in litigation. That is to misunderstand the principle, which involves no usurpation by the judiciary of the decision maker’s 722

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functions. … While imposing a stricter standard of review than perversity, it does not substitute the discretion of the court for that of the executive”). 58.3.13 Common law proportionality: protecting basic (constitutional) rights. R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §21 (Lord Bingham, explaining that the “degree of intrusion … greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners”), §23 (“I have reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review”); R (Quila) v SSHD [2010] EWCA Civ 1482 [2011] 3 All ER 81 (CA) at §34 (Sedley LJ, explaining that in Daly “the House of Lords, on the eve of the coming into force of the Human Rights Act 1998, took the opportunity to make it clear that proportionality was already required by the common law where an executive measure would interfere with a fundamental individual right. … Their Lordships unanimously held that the rule involved a disproportionate invasion of a prisoner’s fundamental right to free communication with his lawyers and so could not stand”), §36 (“What is … clear … is that proportionality, although it may well overlap in particular cases with irrationality and even tend to subsume it, now has a life of its own in public law”) (SC is [2011] UKSC 45 [2012] 1 AC 621); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §56 (Lord Carnwath, describing the “measure of support for the use of proportionality as a test in relation to interference with ‘fundamental’ rights”); R (Ewing) v Isleworth Crown Court [2019] EWHC 288 (Admin) [2019] 2 Cr App R 9 at §§19, 23 (unjustified interference with open justice principle); R v SSHD, ex p Simms [2000] 2 AC 115, 131H-132A (Lord Hoffmann, explaining that since “much of the Convention reflects the common law”, “the adoption of the text as part of domestic law [by the Human Rights Act 1998] is unlikely to involve radical change in our notions of fundamental human rights”), 142G (Lord Hobhouse, describing a policy as being “both unreasonable and disproportionate and cannot be justified as a permissible restraint upon the rights of the prisoner”); R v SSHD, ex p Brind [1991] 1 AC 696, 751E-F (Lord Templeman: “the courts cannot escape from asking themselves whether a reasonable Secretary of State, on the material before him, could reasonably conclude that the interference with freedom of expression which he determined to impose was justifiable. In terms of the [European] Convention [on Human Rights], as construed by the European Court, the interference with freedom of expression must be necessary and proportionate to the damage which the restriction is designed to prevent”); R v SSHD, ex p Pegg [1995] COD 84 (Steyn LJ, leaving open whether proportionality available as a self-standing ground in cases involving liberty); R v SSHD, ex p McQuillan [1995] 4 All ER 400, 423a (Sedley J, raising the question whether common law anxious scrutiny “in itself is a doctrine of proportionality” and commenting that “if it is, the House of Lords has long since contemplated its arrival with equanimity”); R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855 at §37 (“it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification”); R v SSHD, ex p Turgut [2001] 1 All ER 719 (Simon Brown LJ, commenting that judicial review in a human rights context needing to test whether measure “answers a pressing social need or is proportionate to the aims pursued”); R v Governor of Frankland Prison, ex p Russell [2000] 1 WLR 2027 (policy restricting prisoners to one meal a day falling foul of test whereby “there must be established a self-evident and pressing need for [the] power and the interference must be the minimum necessary to fulfil that need”, because arbitrary and unjustified); Kataria v Essex Strategic Health Authority [2004] EWHC 641 (Admin) [2004] 3 All ER 572 at §§74-75 (treating proportionality as a doctrine applicable at common law only where decision interferes with fundamental right), §76 (little difference between reasonableness and proportionality); R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at §47 (Maurice Kay J: “the greater intensity of review which is required by the proportionality test does not arise in domestic law where … no fundamental right is in play”); {7.6} (constitutional/common law rights); {P35} (principle of legality); {35.1.6} (proportionality and legal rights: principle of legality is in substance 723

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proportionality); {35.1.7} (principle of legality as human rights (common law proportionality) protection); {32.4} (anxious scrutiny: common law principles of justification). 58.3.14 Common law rights: no prescriptive instrument of codified rights. R v SSHD, ex p Simms [2000] 2 AC 115, 131G-132B (Lord Hoffmann, referring to the change whereby “the principles of fundamental human rights which exist at common law will be supplemented by a specific text, namely the European Convention on Human Rights and Fundamental Freedoms”); R (Mahmood) v SSHD [2001] 1 WLR 840 at §§39-40 (Lord Phillips MR, explaining why common law test of justification “requires modification where a decision is reviewed that was required, pursuant to the 1998 Act, to comply with the Convention. In such circumstances the Court can no longer uphold the decision on the general ground that there was ‘substantial justification’ for interference with human rights. Interference with human rights can only be justified to the extent permitted by the Convention itself”). 58.3.15 Proportionality more intense/sophisticated than Smith test anxious scrutiny. {32.4} (anxious scrutiny); {32.4.9} (substantial justification: the Pannick formulation (Smith test)); E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66 [2009] AC 536 at §54 (Smith test “insufficiently intense” for HRA proportionality); R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §27 (Lord Steyn, referring to proportionality principles as “more precise and more sophisticated than the traditional grounds of review”; describing “three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in [Smith] is not necessarily appropriate to the protection of human rights”, referring to Smith and Grady v United Kingdom (1999) 29 EHRR 493”); R (Wilkinson) v Responsible Medical Officer Broadmoor Hospital [2001] EWCA Civ 1545 [2002] 1 WLR 419 at §27 (HRA proportionality not the same as the Smith test), also at §§53 and 83; {58.2} (proportionality alongside reasonableness). 58.3.16 Common law proportionality: a contextual approach. R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 at §134 (Lord Neuberger: “The answer to the question whether the court should approach a challenged decision by reference to proportionality rather than rationality may depend on the nature of the issue”), §280 (Lord Kerr: “As Lord Reed pointed out in Pham at para 113, it is necessary to distinguish between proportionality as a general ground of review of administrative action, confining the exercise of power to means which are proportionate to the ends pursued, from proportionality as a basis for scrutinising justifications put forward for interferences with legal rights”), §304 (Lady Hale: “it is one thing to apply a proportionality analysis to an interference with, or limitation of, a fundamental right and another thing to apply it to an ordinary administrative decision”). 58.3.17 Proportionality as a general ground: reasonableness based on proportionality. Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §113 (Lord Reed, speaking of “proportionality as a general ground of review of administrative action, confining the exercise of power to means which are proportionate to the ends pursued”), §114 (“there are a number of authorities in which a finding of unreasonableness was based upon a lack of proportionality between ends and means. … There are also authorities which make it clear that reasonableness review, like proportionality, involves considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision-maker’s view depending on the context. The variable intensity of reasonableness review has been made particularly clear in authorities … concerned with the exercise of discretion in contexts where fundamental rights are at stake. The rigorous approach which is required in such contexts involves elements which have their counterparts in an assessment of proportionality, such as that an interference with a fundamental right should be justified as pursuing an important public interest, and that there should be a searching review of the primary decision-maker’s evaluation of the evidence”). 724

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58.3.18 Proportionality and legal rights: the POL is in substance proportionality. Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §113 (Lord Reed, speaking of “proportionality as a basis for scrutinising justifications put forward for interferences with legal rights”), §118 (“In a number of cases concerned with important rights, such as the right of access to justice and legal professional privilege, the court has interpreted statutory powers to interfere with those rights as being subject to implied limitations, and has adopted an approach amounting in substance to a requirement of proportionality, although less formally structured than under the Human Rights Act”), §119 (“One can infer from these cases that, where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality”). 58.3.19 The proportionality method is available at common law. {P37} (proportionality method); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §54 (Lord Mance: “The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. There seems no reason why such factors should not be relevant in judicial review even outside the scope of [the HRA] and EU law”), reinforced in Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §95 (also §60), §98 (Lord Mance: “the tool of proportionality is one which would … be both available and valuable”), §§109-110. 58.3.20 Common law proportionality and penalties/sanctions/costs.141 R (Electoral Commission) v City of Westminster Magistrates’ Court [2009] EWHC 78 (Admin) at §45 (Walker J: “long before the Human Rights Act 1998 the courts of England and Wales when considering penalties frequently used the language of proportionality”); R (Taylor) v Honiton Town Council [2016] EWHC 3307 (Admin) [2017] PTSR 271 at §40 (Edis J: “a sanction … must be proportionate to the breach”); Khan v General Pharmaceutical Council [2016] UKSC 64 [2017] 1 WLR 169 at §36 (in disciplinary appeals, court can decide whether sanction “was appropriate and necessary in the public interest or was excessive and disproportionate”); Wallace v Secretary of State for Education [2017] EWHC 109 (Admin) [2017] PTSR 675 (allowing a statutory appeal) at §93 (Holgate J: “The failure to assess the weight to be attached to the sanction of publicising the misconduct and the failure to apply any proper proportionality test when deciding to impose a prohibition order amount to serious irregularities rendering the Secretary of State’s decision ‘unjust’ and also ‘wrong’”); R (Woolcock) v Bridgend Magistrates’ Court [2017] EWHC 34 (Admin) at §30 (suspension period for payment of council tax debt, with prison in default, “excessive and disproportionate”); R (Purnell) v South West Magistrates’ Court [2013] EWHC 64 (Admin) [2013] ACD 49 at §40 (in making an order for payment of fines, “the Magistrates imposed payment of an amount over a period which was not proportionate as it was far too long”); R v SSHD, ex p Hindley [2001] 1 AC 410, 419H-420D (asking whether prisoner’s tariff disproportionate); R (Haigh) v City of Westminster Magistrates’ Court [2017] EWHC 232 (Admin) [2017] ACD 47 (considering proportionality of costs orders made in criminal proceedings); R (Middleton) v Cambridge Magistrates’ Court [2012] EWHC 2122 (Admin) (prosecution costs order grossly disproportionate to level of fine imposed); Sanders v Kingston (No 2) [2005] EWHC 2132 (Admin) [2006] LGR 111 (disqualification of local councillor disproportionate and manifestly excessive); R v Eastbourne Magistrates’ Court, ex p Hall [1993] COD 140 (polltax default committal harsh and oppressive and lacking in proportionality); R v Highbury Corner Justices, ex p Uchendu The Times 28 January 1994 (penalty not imposed with due regard to the principle of proportionality in sentencing); R v London Metal Exchange Ltd, ex p Albatros Warehousing BV 31 March 2000 unreported at §§54-57 (whether fine grossly disproportionate); R v SSHD, ex p Benwell [1985] QB 554, 569A (“in an extreme case an administrative or quasi-judicial penalty can be successfully attacked on the ground that it was 141The

equivalent paragraph in a previous edition was relied on in R (Electoral Commission) v City of Westminster Magistrates’ Court [2009] EWHC 78 (Admin) at §45 (Walker J).

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so disproportionate to the offence as to be perverse”); R v Ramsgate Magistrates’ Court and Thanet District Council, ex p Haddow (1993) 5 Admin LR 359, 363B (whether decision “so widely disproportionate that no reasonable bench of justices could arrive at it”); R v SSHD, ex p Chapman The Times 25 October 1994 (discretionary lifer’s tariff far exceeding any equivalent fixed-term sentence so that no reasonable Home Secretary could have allowed it to stand); R (A) v Head Teacher of P School [2001] EWHC Admin 721 [2002] ELR 244 at §41 (pupil exclusion “manifestly unreasonable and disproportionate”). 58.3.21 Proportionality: substantive legitimate expectation. {54.2.6} (substantive legitimate expectation: proportionality test (justifying the impact on the legitimate expectations)). 58.3.22 Adopting a disciplined framework of questions in addressing reasonableness. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 (unreasonable not to amend regulations to deal with impact) at §50 (Rose LJ, approaching unreasonableness by using this “helpful framework”: “what are the disadvantages of deciding not to ‘finetune’ the Regulations thereby allowing the … problem to persist unresolved; what are the disadvantages of adopting a solution to the … problem; would a solution be consistent or inconsistent with the nature of the … regime; and has a reasonable balance been struck”), discussing the approach in R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §113 (Leggatt LJ and Carr J), applied in R (Pantellerisco) v Secretary of State for Work and Pensions [2020] EWHC 1944 (Admin) at §50; and in R (Caine) v Department for Work and Pensions [2020] EWHC 2482 (Admin) at §201 (Julian Knowles J: “The assessment of rationality is to be carried out according to the methodology in Johnson … and Pantellerisco”); R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 [2011] 1 AC 437 at §§44-45 (describing the planning principle whereby planning conditions “must fairly and reasonably relate to the permitted development”); cf R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 at §282 (Lord Kerr, envisaging “a more loosely structured proportionality challenge where a fundamental right is not involved … [which] involves a testing of the decision in terms of its “suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages”). 58.3.23 Proportionality method and common law: legitimate aim. Chesterfield Properties Plc v Secretary of State for the Environment [1998] JPL 568, 579-580 (recognising the need in a human rights case, at common law, to show “substantial public interest grounds for his interference with the right”, where “[o]nly another interest, a public interest, of greater force may override it”); R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2017] EWHC 659 (Admin) [2017] ACD 63 at §90 (O’Farrell J, describing defendant’s “new approach” which “represents a departure from its previous position”: “it must be able to demonstrate that there is good reason for such change”); {37.1.12} (proportionality method step 1: sufficiently important objective). 58.3.24 Proportionality method and common law: suitability (rational connection). R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2017] EWHC 659 (Admin) [2017] ACD 63 at §90 (O’Farrell J: “Any discretion must be exercised reasonably. There must be a rational connection between the decision and the objective”); R (British Civilian Internees – Far Eastern Region) v Secretary of State for Defence [2003] EWCA Civ 473 [2003] QB 1397 at §40 (Lord Phillips MR, Schiemann and Dyson LJJ: “Just as in satisfying the requirements of proportionality, so too in meeting the Wednesbury test, the measures designed to further the objective must be rationally connected to it”), applied in Ganga v Commissioner of Police [2011] UKPC 28 at §§21, 28 and in Chief Fire Officer v Felix-Phillip [2020] UKPC 12 at §29; R (States of Guernsey) v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 1847 (Admin) [2016] 4 WLR 145 at §91 (Jay J, asking whether a “rational connection between the problem and its solution”); R (Ben Hoare Bell Solicitors) v Lord Chancellor [2015] EWHC 523 (Admin) [2015] 1 WLR 4175 at §72 (scope of regulation incompatible with the statutory purpose because it “extends beyond the circumstances which can be seen as rationally connected 726

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to the stated purpose given for its introduction”); R (Gurung) v SSHD [2012] EWHC 1629 (Admin) at §31 (asking whether policy unlawful on grounds “that it does not rationally reflect its underlying purpose”); R (Law Society) v Legal Services Commission [2010] EWHC 2550 (Admin) at §107 (“the process adopted could not rationally achieve the aim for which it was designed”); R (RSPB) v Natural England [2019] EWHC 585 (Admin) at §83 (Lang J, asking whether licence conditions achieved their stated purpose); R (Gordon-Jones) v Secretary of State for Justice [2014] EWHC 3997 (Admin) [2015] ACD 42 (prison service instruction unlawful because effect was contrary to the stated intention) at §38 (“the PSI’s effect is contrary to what the [defendant] has stated to be his intention”; policy unlawful because “its effect is contrary to the expressed intention and objectives that it was supposed to promote”); R (Wandsworth LBC) v Schools Adjudicator [2003] EWHC 2969 (Admin) [2004] ELR 274 at §73 (“the remedy chosen was not rationally capable of correcting the unfairness”); R v Islington LBC, ex p Reilly (1999) 31 HLR 651 (policy unreasonable because “incapable of producing a fair assessment of [claimants’] respective housing needs”); Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34 at §25 (Lord Carnwath: “As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking into account of any more economic ways of achieving the same objective”); cf R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91 [2016] 1 WLR 2453 at §42 (Longmore LJ, discussing “the Padfield jurisdiction of the court”, whereby discretion “should be used to promote the policy and objects of the statute’” and “may not be exercised in a way that would frustrate the legislation’s objectives”: “Any inquiry as to frustration of purpose must consider whether there is a rational connection between the challenge[d] requirement and the legislation’s purpose”); {53.1.2} (duty to promote and not frustrate the legislative purpose: the Padfield principle); {37.1.13} (proportionality method step 2: rational means–ends connection). 58.3.25 Proportionality method and common law: less intrusive alternative. R (McMorn) v Natural England [2015] EWHC 3297 (Admin) [2016] PTSR 750 at §224 (asking whether the defendant “acted fairly and lawfully in refusing … a licence” constituting “a lesser form of control”); Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34 at §25 (Lord Carnwath: “the authority … generally must … have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking into account of any more economic ways of achieving the same objective”); Dad v General Dental Council [2000] 1 WLR 1538, 1543A (professional conduct committee required to balance the nature and gravity of the offences and their bearing on the appellant’s fitness to practise against the need for the imposition of the penalty and its consequences; should have explored whether possibility of rehabilitation by postponing the effect of the order); R (Saadi) v SSHD [2001] EWCA Civ 1512 [2002] 1 WLR 356 (CA) at §23 (Lord Phillips MR: “If the policy reason for detention is that this is necessary in order to effect speedy processing of applications for asylum and, in fact, it is not necessary for this purpose, then the decision to detain may be open to attack on the ground of irrationality”); R v London (North) Industrial Tribunal, ex p Associated Newspapers Ltd [1998] ICR 1212 (reporting restriction orders required to extend so far and no further than what was necessary); R (W) v Governors of B School [2001] LGR 561 (CA) at §29 (statutory scheme as to reinstatement of pupil to implement decision of panel having the effect that: “the governors are required to act proportionately to any threat of industrial action. That is, they should consider what is the least derogation from the pupil’s full reintegration into the school that must be conceded so as to secure the protection of the other pupils’ interests. … What constitutes such minimal derogation is for their primary judgment; the court exercises a secondary judgment on judicial review”) (HL is R (L (A Minor)) v Governors of J School [2003] UKHL 9 [2003] 2 AC 633); R (Yumsak) v Enfield LBC [2002] EWHC 280 (Admin) [2003] HLR 1 at §32 (asylum housing dispersal decision unreasonable where “no evidence that there was no suitable and costeffective alternative temporary accommodation in or closer to Enfield”); R (Watford Grammar School for Girls) v Adjudicator for Schools [2003] EWHC 2480 (Admin) [2004] ELR 40 at §82 (Collins J, finding that schools adjudicator should have “appreciated that there were other possible ways of achieving the result which he considered to be desirable”), §85 (thus, he 727

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“fail[ed] to have regard to material considerations”); R v O’Kane and Clarke, ex p Northern Bank Ltd [1996] STC 1249, 1269f-g (response unnecessary: “if there were thought to be a need for protection I see no reason why this could not be achieved by the method suggested by the [claimant]”); cf R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 at §38 (question is not whether no alternative course was open to the decision-maker, but whether decision was within the lawful bounds of discretion); {37.1.14} (proportionality method step 3: no equally effective less restrictive/intrusive measure). 58.3.26 Proportionality method and common law: fair balance/reasonable balance. R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §50 (Rose LJ, asking “has a reasonable balance been struck”) §107 (“refusal to put in place a solution to this very specific problem” irrational “because no reasonable SSWP would have struck the balance in that way”); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §113 (Leggatt LJ and Carr J: “What matters is that overall a reasonable balance is struck”); R v SSHD, ex p Chahal [1995] 1 WLR 526, 533A-534F (Secretary of State, in a deportation context, owing an important duty to balance the competing interests of national security and the rights and interests of the deportee); R v SSHD, ex p Saleem [2001] 1 WLR 443 at 451G (rule “not reasonable because it is not necessary to achieve the objective of timely and effective disposal of appeals and may well deny an asylum seeker ‘the just disposal’ of her appeal which is another objective identified in [the] rule”); R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 2 AC 418 (action reasonable where “the Chief Constable had carried out a carefully considered balancing exercise”); R v O’Kane and Clarke, ex p Northern Bank Ltd [1996] STC 1249, 1269e-f (unlawful because “no regard to the burden thereby imposed on the recipients or to the proportionality of that burden and the benefit which is sought to be achieved”); {37.1.15} (proportionality method step 4: fair balance/excessive burden).

58.4 Proportionality and scrutiny of evidence/reasoning. The proportionality method poses a series of structured questions for the reviewing Court. Ultimately, the focus may be squarely on the outcome, not the contemporaneous reasoning. Where the public authority can show that it addressed its mind to relevant questions, its evaluation may be afforded particular respect and weight in the Court’s analysis. Where it has not done so, the unassisted Court will feel driven (or liberated) to ask and answer questions for itself. Justification offered after the event can be relevant. Sometimes the Court will conclude that impugned action is ‘not justified yet’. 58.4.1 Proportionality: focus on outcome not reasoning (Denbigh/Miss Behavin’). R (SB) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 [2007] 1 AC 100 at §29 (HRA focus not “on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated”), §31 (“what matters in any case is the practical outcome, not the quality of the decision-making process that led to it”), §68; Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 [2007] 1 WLR 1420 (where decision not violating rights, no duty to address them), §§13-14, 23 (“if the refusal did not interfere disproportionately with the … right to freedom of expression, then it was lawful … whether or not the council had deliberated on that right before refusing”); R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWCA Civ 649 at §98 (“Proportionality is concerned with the outcome not the quality of the process that leads to the decision or act being challenged”); R (TD) v Secretary of State for Work and Pensions [2020] EWCA Civ 618 (justification under Art 14) at §53 (“under the HRA, the question of justification for an interference with a Convention right is a substantive question. … What matters is whether the ultimate decision taken is or it not objectively justified”); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §116 (“the duty of a public authority under section 6 of the Human Rights Act 1998 to act compatibly with Convention rights is one of result, not of process. … In other words, the fact that a public authority has not taken account of a relevant consideration or followed an appropriate decision-making process is not itself a basis for concluding that it has acted 728

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incompatibly with Convention rights: it goes only to the weight that should be accorded to the judgment made by the public authority”); Dulgheriu v Ealing LBC [2019] EWCA Civ 1490 [2020] 1 WLR 609 at §64 (“the correct approach … is not to determine whether the decision maker has followed a defective decision-making process but rather the court must form its own view as to whether the applicant’s ECHR rights have been infringed”); R (Nasseri) v SSHD [2009] UKHL 23 [2010] 1 AC 1 at §§12-14 (applying Denbigh and Miss Behavin’). 58.4.2 Fundamental rights as a relevant consideration? {56.1.6} 58.4.3 HRA/proportionality: relevance of whether defendant addressed the issue. R (TD) v Secretary of State for Work and Pensions [2020] EWCA Civ 618 at §54 (Singh LJ: “the fact that an issue has been considered by a decision-maker is relevant to the question which the court itself has to determine. It may affect the weight which the court should give to the views of the decision-maker when coming to its own assessment of the issue of justification”); JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §90 (Leggatt LJ: “where the public authority has addressed the particular issue before the court and has taken account of the relevant human rights considerations in making its decision, a court will be slower to upset the balance which the public authority has struck. But where there is no indication that this has been done, ‘The court’s scrutiny is bound to be closer, and the court may … have no alternative but to strike the balance for itself, giving due weight to such judgments as were made by the primary decision-maker on matters he or it did consider’”); R (Hussein) v SSHD [2018] EWHC 213 (Admin) [2018] ACD 32 at §60 (“even under [the HRA Art 14] a minister who has not thought properly or at all about discrimination is unlikely to be able to justify it until he has done so”); DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301 at §74 (Lord Kerr: “What might be considered proportionate if the police view of the limits on their powers was correct might be considered not to be if they had recognised the full panoply of controls that were in fact available”); In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §64 (“where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished”); In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3 [2015] AC 1016 at §56 (Lord Mance: “when the court is considering whether a measure strikes a fair balance, weight attaches to the legislative choice”, but “the extent to which the legislature has as the primary decision maker been in or put in a position to evaluate the various interests may affect the weight attaching to its assessment”); R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621 (immigration rule designed to deter forced marriages but disproportionate interference with unforced marriages), §50 (“The Secretary of State has failed to demonstrate that, when she introduced it, she had robust evidence of any substantial deterrent effect”), §58 (“Neither in the material which she published prior to the introduction of the amendment … nor in her evidence in these proceedings has the Secretary of State addressed [the] imbalance – still less sought to identify the scale of it. … She clearly fails to establish … that the amendment is no more than is necessary to accomplish her objective and … strikes a fair balance”); R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449 at §95 (Lord Reed: “Many of the issues discussed in this appeal were considered by Parliament prior to approving the Regulations. That is a matter to which this court can properly have regard”); R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 [2015] 1 WLR 3820 at §32 (“no evidence” that the Secretary of State addressed the issue), §67; Makhlouf v SSHD [2016] UKSC 59 [2017] 3 All ER 1 (whether sufficient inquiry as to children’s best interests in Art 8 context) at §41 (whether “sufficient material on which to make a proper judgment on the article 8 rights of the appellant and his children”); R (E) v Governing Body of JFS [2009] UKSC 15 [2010] 2 AC 728 (policy not proportionate when school had given no consideration to impact nor alternative means of achievement), §210 (“it was for [the defendant] to show that they had taken account of the effect of the policy … and balanced its effects against what was needed to achieve the aim of the policy”), §211 (defendant not having shown that this was so); {37.1.21} (whether proportionality requires evidence). 729

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58.4.4 Proportionality/justification and ex post facto reasons: greater scrutiny/less weight. R (Ward) v Hillingdon LBC [2019] EWCA Civ 692 [2019] PTSR 1738 at §76 (“It is open to a policy maker to advance an ex post facto justification” but “the court will not have had the benefit of the considered decision of the policy maker”, so “greater scrutiny” appropriate); applying In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §52 (“if reasons are proffered in defence of a decision which were not present to the mind of the decisionmaker at the time that it was made, this will call for greater scrutiny than would be appropriate if they could be shown to have influenced the decision-maker”), §64 (“where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished”); Langford v Secretary of State for Defence [2019] EWCA Civ 1271 [2020] 1 WLR 537 at §61 (“points … raised after the event … [with] no evidence to indicate that they played any part in the formulation of the rule … weigh less heavily in the assessment”), §66 (“not a reason why the rule was introduced and … a difficult one to justify ex post facto absent significant evidential input”); 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) (“where an ex post facto justification is advanced the Court will … apply a more rigorous evidential scrutiny”); OA v Secretary of State for Education [2020] EWHC 276 (Admin) at §49(ii). 58.4.5 Unassisted court strikes its own balance. R (Mott) v Environment Agency [2018] UKSC 10 [2018] 1 WLR 1022 at §37 (Lord Carnwath: “where (unlike this case) the authorities have given proper consideration to the issues of fair balance, the courts should give weight to their assessment”); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §93 (“where a public authority has addressed the particular issue before the court and has taken account of the relevant human rights considerations in making its decision, a court will be slower to upset the balance which was struck. Conversely, where there is no indication that this has been done ‘[t]he court’s scrutiny is bound to be closer and the court may have no alternative but to strike the balance for itself, giving such due weight to such judgments as were made by the primary decision-maker on matters he or it did consider’”, citing Miss Behavin’ at §47); Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 [2007] 1 WLR 1420 at §31 (Lady Hale: where human rights not addressed by decision-maker, court decides for itself whether rights infringed), §37 (court strikes the balance for itself if decisionmaker has not balanced rights and interests), §47 (Lord Mance), §92 (Lord Neuberger), §27 (Lord Rodger); Gilham v Ministry of Justice [2019] UKSC 44 [2019] 1 WLR 5905 at §35 (Lady Hale: “While there is evidence of consideration given to whether certain excluded groups should be included (such as police officers), there is no evidence that the position of judges has ever been considered. There is no ‘considered opinion’ to which to defer”); R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin) [2013] PTSR 378 at §45 (Beatson J: “If … the process is defective, less weight will be accorded to the judgment of the primary decision-maker”); R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621 at §58 (“Even had it been correct to say that the scale of the imbalance was a matter for the Secretary of State rather than for the courts, it is not a judgment which, on the evidence before the court, she has ever made”); R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3 [2010] 1 AC 410 at §§48, 65, 86 (where error of approach as to Art 8 and disclosure, Court asking whether clear that information ought to have been disclosed); 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) (“heightened judicial scrutiny” not meaning “the margin of appreciation otherwise attributable to the state disappears or is necessarily significantly modified. … A court might … still conclude that a significant margin of appreciation be accorded to the decision maker”). 58.4.6 Not justified yet. R (Hussein) v SSHD [2018] EWHC 213 (Admin) [2018] ACD 32 at §66 (declaration that lock-in regime breaching Art 14 “unless justified” and that “[n]o such justification has yet been shown”); R (Coll) v Secretary of State for Justice [2017] UKSC 40 [2017] 1 WLR 2093 at §42 (breach of public sector equality duty meaning Secretary of State “cannot show that the present distribution of [approved premises] for women is a proportionate means of achieving a legitimate aim”), §45 (declaration that direct discrimination contrary 730

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to Equality Act 2010 s.13(1), for which no justification “has yet been shown”); R (Ward) v Hillingdon LBC [2019] EWCA Civ 692 [2019] PTSR 1738 (housing allocation policy indirect discrimination which not justified yet); {24.2.8} (declaration that measure not justified yet). 58.4.7 Whether proportionality questions treated as built-into statutory scheme.142 McDonald v McDonald [2016] UKSC 28 [2017] AC 273 at §40 (and §59) (distinct proportionality defence unavailable against private landlord in possession proceedings, “at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants” and which “reflect the state’s assessment of where to strike the balance”), §35 (different in the case of public authority landlords; not sufficient to say that “the proportionality of making the order was already taken into account by Parliament”, referring to Pinnock [2010] UKSC 45 (see Pinnock at §52)); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §§62-63 (immigration rules not to be applied as having “determined the weight which tribunals must give to the public interest in deportation in all cases”), §53 (“a relevant and important consideration”); Independent News and Media Ltd v A [2010] EWCA Civ 343 [2010] 1 WLR 2262 (anonymity and private hearings in Court of Protection) at §27 (“the considerations which arise under article 8 are effectively encompassed within the legislative structure”); Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 [2007] 1 WLR 1420 at §§37, 41, 87 (legislation not taken as striking the balance); R (London and Continental Stations and Property Ltd) v Rail Regulator [2003] EWHC 2607 (Admin) at §44 (“the statutory procedure … itself requires a balancing exercise between the public interest and [the claimant]’s rights”; compliance with statutory “obligation on the Regulator to exercise his functions in the manner best calculated to impose the minimum of restrictions consistent with the performance of his functions … ensures that he strikes a fair balance”). 58.4.8 Evidence to justify legislation. {17.1.9} (materials/evidence and HRA/proportionality). 58.4.9 Justification involving a reasoning duty: DPA illustration. R (Elgizouli) v SSHD [2020] UKSC 10 [2020] 2 WLR 857 at §219 (Data Protection Act 2018 s.73 requiring “specific consideration by the relevant controller of the statutory tests, including the strict test of necessity. The clear purpose of the provisions is to set out a structured framework for decisionmaking, with appropriate documentation”), §225 (“the Act requires a specific assessment … and … this did not take place”), §6 (Act “required a conscious, contemporaneous consideration of whether the criteria for … processing were met”). R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058 at §153 (pilot scheme in breach of s.64 of Data Protection Act 2018, for failure lawfully to assess risks and measures relating to rights and freedoms).

58.5 Proportionality: latitude and intensity of review.143 A key feature of proportionality review is the concept of latitude (area of judgment). This avoids the forbidden substitutionary approach, recognising that the Court does not become the primary decision-maker on matters of policy, judgment and discretion. Intensity of review, and corresponding width of latitude, are contextually-variable. The Strasbourg Court (ECtHR) is an international court which recognises the ‘margin of appreciation’ (MOA): an enhanced latitude afforded to the national UK authorities including the domestic Courts. The domestic Courts do not therefore replicate the MOA and may, in an appropriate case, find within it an HRA breach by a public authority. 58.5.1 Proportionality: an objective question for the Court. R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWCA 142The

equivalent paragraph in a previous edition was relied on in TG v SSWP [2015] UKUT 50 (AAC) at §79 (UTJ Ward). equivalent paragraph in a previous edition was relied on in R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185 at §138 (Lord Walker); Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §36 (Lord Carswell); Re Tweed [2007] NIQB 69 at §55 (Weatherup J); Re The Christian Institute [2007] NIQB 66 at §82 (Weatherup J); Langley v Liverpool City Council [2005] EWCA Civ 1173 [2006] 1 WLR 375 at §58 (Dyson LJ); Re Magennis [2008] NIQB 97 (Weatherup J). 143The

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Civ 649 at §98, applying R (SB) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 [2007] 1 AC 100 at §30 (Lord Bingham: “The domestic court must … make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time. … Proportionality must be judged objectively, by the court”), §56 (judge correct to “make an objective appraisal of the evidence before him”); Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §105 (Chamberlain J: “In some contexts where the proportionality of action by a public authority is in issue, the authorities require that the court determines the question of proportionality for itself (giving whatever weight is appropriate in the circumstances to the view of the public authority)”); 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”); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §57 (Lord Neuberger: “whatever the issue, once a Convention right is affected by a decision of the executive, the court has a duty to decide for itself whether the decision strikes a fair balance between the rights of an individual or individuals and the interests of the community as a whole”), §67 (“where human rights are adversely affected by an executive decision, the court must form its own view on the proportionality of the decision”); Re B (A Child) (Care Proceedings: Appeal) [2013] UKSC 33 [2013] 1 WLR 1911 at §84 (Lord Neuberger: “It is well established that a court entertaining a challenge to an administrative decision, ie. a decision of the executive rather than a decision of a judge, must decide the issue of proportionality for itself”); R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621 at §46 (proportionality to be judged objectively by the court), §61 (“Ultimately, it is for the court to decide whether or not the Convention rights have been breached”); Norris v Government of the United States of America (No 2) [2010] UKSC 9 [2010] 2 AC 487 at §68 (“it is for this court to reach its own decision as to whether [the appellant’s] extradition would be compatible with his article 8 rights”); R (Baiai) v SSHD [2008] UKHL 53 [2009] AC 287 at §25 (“the court cannot abdicate its function of deciding whether as a matter of law the [statutory] scheme, as promulgated and operated, violate[s] the … [Convention] right”); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 at §40 (“domestic courts must themselves form a judgment whether a Convention right has been breached”); DPP v Ziegler [2019] EWHC 71 (Admin) [2020] QB 253 at §100 (proportionality not a “question of fact” but an “evaluative assessment”); R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §23 (“domestic courts must themselves form a judgment whether a convention right has been breached (conducting such inquiry as is necessary to form that judgment)”); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §141 (“Whether a particular statutory provision offends against any of the ‘Convention rights’ is an objective question to be answered having regard to all relevant evidence”), §116 (court “forming its own view … as to whether or not the legislation is compatible”); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §§62-63 (proportionality of legislation a question involving a “value judgment”), §§141-142 (ECHR-compatibility of legislation “an objective question to be answered having regard to all relevant evidence”; here involving “a sociological assessment”); {16.6.2} (proportionality as a hard-edged question for the Court). 58.5.2 Proportionality: not a ‘full merits review’. General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 at §20 (Lord Kerr: “an inquiry into the proportionality of a decision should not be confused with a full merits review”); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §58 (rejecting a “full merits review” approach to proportionality in asset freezing context); Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §21 (Lord Sumption, explaining that proportionality review does not mean “that the court is to take over the function of the decision-maker”); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §131 (Lord Reed: “Although the courts must decide whether, in their judgment, the requirement of proportionality is satisfied, there is at the same time nothing in the Convention, or in the domestic legislation giving effect to Convention rights, which requires the courts to substitute their own views for those of other public authorities on all matters of policy, judgment and discretion”); R (Naik) v SSHD [2011] EWCA Civ 1546 at §88(v) (Gross LJ: “whatever the intensity of the review, it is crucial that the Court should not substitute its views for those of the SSHD”); R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §27 732

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(“the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions” and “may require attention to be directed to the relative weight accorded to interests and considerations”), §28 (“This does not mean that there has been a shift to merits review”); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §52 (HRA proportionality “does not go as far as to provide for a complete rehearing on the merits of the decision”); Huang v SSHD [2007] UKHL 11 [2007] 2 AC 167 (on human rights appeal, immigration judge required to decided compatibility of removal as primary not reviewing function), applied in MS (Pakistan) v SSHD [2020] UKSC 9 [2020] 1 WLR 1373 at §14 (FTT and UT having primary function of deciding Art 4-compatibility on the facts); {58.5.6} (HRA latitude: the ‘discretionary area of judgment’); {15.4.5} (‘full merits review’ under the HRA). 58.5.3 Variable latitude/variable intensity: proportionality as a flexi-principle. R (Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542 at §§140-141 (Hickinbottom LJ, describing the absence of a “bright line” between a “manifestly without reasonable foundation test” and the “usual balancing exercise inherent in the assessment of proportionality”, since “the degree of social and economic policy involved in any measure will be infinitely variable” and “the greater the element of economic and/or social policy involved, the greater the margin of judgment and the greater the deference that should be afforded”); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §90 (Leggatt LJ: “in assessing proportionality, the intensity with which a court will scrutinise a policy justification for a difference in treatment will depend on the circumstances”); In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §64 (need for restraint where decisions on social and economic policy; but lessened imperative for reticence where impact not considered by decision-maker); R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [2015] AC 657 at §170 (Lord Mance, emphasising the “flexibility of proportionality”); Tweed v Parades Commission for Northern Ireland [2006] UKHL 5 [2007] 1 AC 650 at §3 (Lord Bingham, describing HRA cases as ones which “tend to be very fact-specific and any judgment on the proportionality of a public authority’s interference with a protected Convention right is likely to call for a careful and accurate evaluation of the facts”); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 at §39 (Lord Bingham: “while any decision made by a representative democratic body must of course command respect, the degree of respect will be conditioned by the nature of the decision”), §29 (“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. … Conversely, the greater the legal content of any issue, the greater the potential role of the court”), §80 (Lord Nicholls: “The latitude will vary according to the subject matter under consideration, the importance of the human right in question, and the extent of the encroachment upon that right”); R (Mahmood) v SSHD [2001] 1 WLR 840 at §18 (“the intensity of review in a public law case will depend on the subject matter in hand”), endorsed in R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §28; R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 [2006] 1 AC 173 at §17 (Lord Hoffmann, distinguishing between cases where “the right to respect for the individuality of a human being is at stake” and where “merely a question of general social policy”); R (Countryside Alliance) v Attorney General [2007] UKHL 52 [2008] 1 AC 719 (wide latitude in EC/HRA challenge to Hunting Act); {31.4.4} (principled flexibility and human rights: Laws LJ’s quicksilver). 58.5.4 Latitude, flexibility and EU law proportionality. R (Seabrook Warehousing Ltd) v HMRC [2019] EWCA Civ 1357 (discussing R (Lumsdon) v Legal Services Board [2015] UKSC 41 [2016] AC 697 and the distinction between a “manifestly disproportionate” standard and a “less restrictive means” standard), §106 (“the EU law principle of proportionality is a flexible one”); R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437 [2012] QB 394 at §133 (Arden LJ: “proportionality is to be applied with considerable flexibility dependent on the nature of the case”) 58.5.5 Latitude and the legislature. R (Animal Defenders International) v Secretary of State for Culture Media and Sport [2008] UKHL 15 [2008] 1 AC 1312 (giving great weight 733

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to Parliament’s views); R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15 [2005] 2 AC 246 at §51 (Lord Nicholls: “The legislature is to be accorded a considerable degree of latitude”); R (Countryside Alliance) v Attorney General [2007] UKHL 52 [2008] 1 AC 719 at §45 (pre-eminently a case where respect to be shown to what House of Commons decided), §132; Marcic v Thames Water Utilities Ltd [2003] UKHL 66 [2004] 2 AC 42 at §71 (a broad discretion); R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 [2006] 1 AC 173 at §25 (“very much a case in which Parliament is entitled to decide whether the differences justify a difference in treatment”), §§45, 80; R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15 [2005] 2 AC 246 at §51 (“broad social policy … pre-eminently well suited for decision by Parliament”); Campbell v MGN Ltd (No 2) [2005] UKHL 61 [2005] 1 WLR 3394 at §26 (Parliament entitled to have “a general rule in order to enable the scheme to work in a practical and effective way”); Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 at §19 (“National housing policy is a field where the court will be less ready to intervene”); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §70 (“Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. … The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation”) §110 (HRA leaving the “effect … on the relationship between the courts and Parliament … to be worked out in accordance with familiar constitutional principles”); R v Johnstone [2003] UKHL 28 [2003] 1 WLR 1736 at §51 (“Parliament, not the court, is charged with the primary responsibility for deciding, as a matter of policy, what should be the constituent elements of a criminal offence”); R v Lichniak [2002] UKHL 47 [2003] 1 AC 903 at §14 (“a degree of deference is due to the judgment of a democratic assembly on how a particular social problem is best tackled”); R v A (No 2) [2001] UKHL 25 [2002] 1 AC 45 at §36 (“when the question arises whether in the criminal statute in question Parliament adopted a legislative scheme which makes an excessive inroad into the right to a fair trial the court is qualified to make its own judgment and must do so”); cf Arorangi Timberland Ltd v Minister of the Cook Islands National Superannuation Fund [2016] UKPC 32 [2017] 1 WLR 99 at §39 (“The legislature is entitled to a wider margin of judgment than the executive. Unlike a person exercising delegated powers, the legislature has a wider range of options open to it and, as a result of being elected, it enjoys democratic legitimacy and has direct democratic accountability”). 58.5.6 HRA latitude: the ‘discretionary area of judgment’. DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301 at §76 (“area of discretionary judgment” applicable to police operational functions); R v DPP, ex p Kebilene [2000] 2 AC 326, 381B-D (Lord Hope: “In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made [by Lester and Pannick] where the area in which these choices may arise is conveniently and appropriately described as the ‘discretionary area of judgment’”); Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 703D (Lord Bingham: “While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies”); R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185 at §132 (Lord Walker, using the concept of the “discretionary area of judgment”); Evans v Amicus Healthcare Ltd [2004] EWCA Civ 727 [2005] Fam 1 at §63 (explaining why “discretionary area of judgment” a better phrase than “margin of discretion”). 58.5.7 Margin of discretion/judgment. R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §178 (“margin of discretion”); R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322 at §63 (“wide margin of discretion”); R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279 [2008] QB 289 at §148 (“broad margin of discretion” as to foreign relations); Marcic v Thames Water Utilities Ltd [2003] UKHL 66 734

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[2004] 2 AC 42 at §71 (“broad margin of discretion”); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 at §107; R (Blewett) v Derbyshire County Council [2004] EWCA Civ 1508 [2004] Env LR 293 at §85 (“margin of discretion” used in EU law context); R (Haq) v Walsall Metropolitan Borough Council [2019] EWHC 70 (Admin) [2019] PTSR 1192 [2019] ACD 45 at §§73, 95 (defendant’s “margin of judgment”). 58.5.8 Proportionality and ‘objective justification’. Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §55 (Lord Brown, identifying “the critical question in any proportionality case” as being “whether the interference with the right in question is objectively justified”). 58.5.9 Proportionality: ‘fair balance’. {37.1.15} (proportionality method step 4: fair balance/ excessive burden); R (Razgar) v SSHD [2004] UKHL 27 [2004] 2 AC 368 at §20 (Lord Bingham, explaining that proportionality “must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention”); DPP v Ziegler [2019] EWHC 71 (Admin) [2020] QB 253 at §65 (“fair balance” as “inherently a fact-specific inquiry”); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §103 (“The fundamental difficulty with the defendant’s policy is that it does not strike a fair balance between the rights concerned at all”); R (Agyarko) v SSHD [2017] UKSC 11 [2017] 1 WLR 823 at §41 (“Ultimately … the question … is whether a fair balance has been struck”, echoing Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §32); Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 at §114 (Lord Mance, asking whether the human rights interference “was necessary in a democratic society, in the sense that, having regard to all the relevant matters, it struck a fair balance”); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §34 (“fair balance” test in the context of A1P1); In Re Officer L [2007] UKHL 36 [2007] 1 WLR 2135 at §21 (fair balance in Art 2 context); R v A (No 2) [2001] UKHL 25 [2002] 1 AC 45 at §91 (Lord Hope: “The principle of proportionality directs attention to the question whether a fair balance has been struck between the general interest of the community and the protection of the individual”); Marcic v Thames Water Utilities Ltd [2003] UKHL 66 [2004] 2 AC 42 (“fair balance” test in analysing statutory scheme as ECHR-compatible); R (Baiai) v SSHD [2008] UKHL 53 [2009] AC 287 at §24 (“fair balance” test inapt in considering proportionality of immigration marriage-approval provision); {58.3.26} (proportionality method and common law: fair balance/reasonable balance). 58.5.10 Beware of the Strasbourg margin of appreciation (MOA): general. R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 [2020] 2 All ER 813 at §80 (Lord Burnett CJ, King and Singh LJJ: “The concept of a margin of appreciation is not directly relevant when courts in this country apply the HRA. This is because it is a concept of international law and not domestic law, governing the relationship between an international court and Contracting States. Nevertheless, it is well established that there is an analogous concept which does apply in domestic law under the HRA, which has been variously described as a ‘discretionary area of judgement’, a ‘margin of discretion’ or in other ways, for example to refer to the appropriate weight which is to be given to the judgement of the executive or legislature depending upon the context”); Re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250 at §34 (“Strictly speaking, the margin of appreciation has no application in domestic law. Nevertheless, when considering whether a measure does fall within the margin, it is necessary to consider what test would be applied in Strasbourg”); R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 [2020] AC 1 at §28 (Lord Kerr: “the approach of the ECtHR to the question of what margin of appreciation should be accorded is not mirrored by the exercise which a national court is required to carry out in deciding whether an interference with a Convention right is justified”), §29 (“a national court must confront the interference with a Convention right and decide whether the justification claimed for it has been made out. It cannot avoid that obligation by reference to a margin of appreciation to be allowed the Government or Parliament, (at least not in the sense that the expression has been used by ECtHR”). 735

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58.5.11 MOA is afforded by ECtHR as an international court. AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §32 (Lord Hope: “the doctrine by which a margin of appreciation is accorded to the national authorities is an essential part of the supervisory jurisdiction which is exercised over state conduct by the international court. It is not available to national courts when they are considering Convention issues arising within their own countries”), §131; R v DPP, ex p Kebilene [2000] 2 AC 326, 380E-381A (Strasbourg MOA as based on the insight “that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court”); R (Mahmood) v SSHD [2001] 1 WLR 840 at §31 (MOA “a self-denying ordinance adopted by an international court”). 58.5.12 MOA is shared between branches of the state: HRA-breach within the MOA. Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 at §115 (Lord Mance, explaining why the domestic court under the HRA does not apply the MOA, that being divided between the branches of government); In re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250 [2018] 1 WLR 4250 at §34 (Lady Hale: “In cases which … fall within the margin which Strasbourg will allow to member states, the domestic courts will then have to consider which among the domestic institutions is most competent and appropriate to strike the necessary balance between the individual and the public interest”); In re G (Adoption: Unmarried Couple) [2008] UKHL 38 [2009] AC 173 (HL finding HRA violation albeit ECtHR would uphold as within MOA) at §31 (where ECtHR would uphold measure as within the UK’s margin of appreciation, domestic court entitled to decide for itself whether rights-interference justified so as to be HRA-compatible), §32 (MOA as international deference), §37 (MOA shared between the arms of government), §§118, 120; R (Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 [2020] QB 1 at §56 (because ECtHR would uphold blanket ban on assisted suicide as within the MOA, whether to grant a declaration of incompatibility needing to be addressed under “the domestic law under the Human Rights Act 1998”), applying In re G; D v Commissioner of Police of the Metropolis [2018] UKSC 11 [2019] AC 196 at §153 (Lord Mance: “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”); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §86 (“the margin of appreciation afforded to national authorities by an international court” not the same as “the approach which a national court should take towards a policy choice made by its own legislature”), §87 (here, “compelling reasons for according the full area of judgment allowed to the UK under the Convention in matters of social and economic policy”, explaining use of the “manifestly without reasonable foundation” test); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §35 (“the margin of appreciation of the national authorities”); R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [2015] AC 657 at §§70-75 (Lord Neuberger), 163 (Lord Mance), 295 (Lord Reed), 299 (Lady Hale), §342 (Lord Kerr); In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3 [2015] AC 1016 at §54 (Lord Mance: “At the domestic level, the margin of appreciation is not applicable … The fact that a measure is within a national legislature’s margin of appreciation is not conclusive of proportionality when a national court is examining a measure at the national level”); {9.1.8} (HRA and autonomous human rights jurisprudence). 58.5.13 MOA underlines the need for closer autonomous scrutiny by the national court. A v SSHD [2004] UKHL 56 [2005] 2 AC 68 at §131 (Lord Hope: “When the European Court talks about affording a margin of appreciation to the assessment of the British Government it assumes that its assessment will at the national level receive closer scrutiny”), §176 (Lord Rodger: “the considerable deference which the European Court of Human Rights shows to the views of the national authorities in such matters really presupposes that the national courts will police those limits”). 58.5.14 MOA authoritatively governs the nature of the Convention right. R (S) v Secretary of State for Justice [2012] EWHC 1810 (Admin) at §54 (Sales J: “the domestic courts are 736

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required to interpret the Convention rights by applying the same margin of appreciation … as the ECtHR would apply”), §56 (ambit of Convention rights “directly governed by” Strasbourg MOA); R v Stratford Justices, ex p Imbert [1999] 2 Cr App R 276 (wrong to “apply or have recourse to the doctrine of the margin of appreciation as implemented by the Strasbourg Court”, but right to “recognise the impact of that doctrine upon the Strasbourg Court’s analysis of the meaning and implications of the broad terms of the Convention provisions”). 58.5.15 MOA may indicate an appropriate scope for latitude under the HRA. R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §87 (“compelling reasons for affording the full area of judgment allowed to the UK under the Convention in matters of social and economic policy to the legislature and the executive”); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §32 (referring to the similar “questions of balance between competing interests” and “area of discretionary judgment”); R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182 [2018] QB 149 at §227; Montgomery v Her Majesty’s Advocate and the Advocate General for Scotland [2003] 1 AC 641, 650E (Lord Hoffmann: “The doctrine of a ‘margin of appreciation’ exists to enable the concepts in the Convention to be given somewhat different content in the various contracting states, according to their respective histories and cultures”); R (Countryside Alliance) v Attorney General [2007] UKHL 52 [2008] 1 AC 719 at §126 (wrong to second-guess Parliament where the Court “can reasonably predict that Strasbourg would regard the matter as within the margin of appreciation left to the member states”); R (Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 153 (Admin) [2004] Env LR 828 at §63 (Ouseley J: “the width of the margin of appreciation accorded in such cases by the ECtHR is an indication of the appropriate width of the area of discretionary judgement”) (CA is [2004] EWCA Civ 1580 [2005] 1 WLR 1267).

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P59 HRA violation. Unless giving effect to primary legislation incapable of compatibleinterpretation, a public authority must not breach an HRA-protected Convention right. 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 provisions

59.1 Identifying an HRA violation. A public authority which acts incompatibly with (ie violates) a Convention right breaches its statutory duty under HRA s.6 (unless excused because it was implementing primary legislation which it is not ‘possible’ to interpret compatibly). The remedy of judicial review is available to provide a suitable remedy. Whether a Convention right (HRA:ECHR right) has been violated depends on: (1) whether the right is applicable, engaged and interfered with; and if so (2) whether such interference can lawfully be justified (a) under the terms of the relevant Convention right and (b) applying relevant legal principles enunciated in the case law. 59.1.1 The HRA. {P9} 59.1.2 The HRA and authority/precedent. {11.1.10} (precedent and HRA: binding domestic precedent governs). 59.1.3 Importance of the design of the relevant Convention right. {9.1.23} (meaning of ‘the Convention rights’); R (Mahmood) v SSHD [2001] 1 WLR 840 at §39 (Lord Phillips MR: “Interference with human rights can only be justified to the extent permitted by the Convention itself. Some articles of the Convention brook no interference with the rights enshrined within them. Other articles qualify the rights, or permit interference with them”); R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §27 (Lord Steyn, emphasising the need to make “due allowance for important structural differences between various convention rights”); {58.3.14} (common law rights: no prescriptive instrument of codified rights). 59.1.4 ‘Qualified’ HRA:ECHR rights: questions of (i) interference and (ii) justification. R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §27 (Leggatt LJ explaining that, in the case of a “qualified right” where “the Convention permits interference with it in certain prescribed circumstances”: “To determine whether there has been a violation … two questions therefore need to be asked. The first is whether there has been an interference by a public authority with the exercise of the claimant’s right. … This is often expressed by asking whether [the] article [in question] is ‘engaged’. If it is, the second question arises of whether the interference with the exercise of the claimant’s rights is justified by one of the exceptions set out in [the] article”). 59.1.5 The ECHR ‘requirement of legality’ (‘prescribed by law’ etc): general. R (P) v Secretary of State for Justice [2019] UKSC 3 [2020] AC 185 at §§12, 14-19 (Lord Sumption discussing “in accordance with the law”, describing it as “the test of legality”), cited in R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §86 (Singh LJ and Holgate J); Beghal v DPP [2015] UKSC 49 [2016] AC 88 at §§30, 92 (referring to “the requirement of legality”), §29 (Lord Hughes: “It is well established that

P59 HRA violation

the primary constituent of the requirement that interference with a Convention right must be in accordance with the law (‘legality’) is that there must be a lawful domestic basis for it, that this law must be adequately accessible to the public and that its operation must be sufficiently foreseeable, so that people who are subject to it can regulate their conduct”), §30 (“The requirement of legality … [also] calls for the law to contain sufficient safeguards to avoid the risk that power will be arbitrarily exercised and thus that unjustified interference with a fundamental right will occur”); R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland [2015] UKSC 9 [2015] AC 1065 at §11; R (Eastenders Cash & Carry Plc) v HMRC [2014] UKSC 34 [2015] AC 1101 at §24(4); R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058 at §§55-56 (CA endorsing DC’s six wellestablished principles applicable to the ‘in accordance with the law’ standard), based on Catt at §§11-14 and Re Gallagher [2019] UKSC 3 [2020] AC 185 at §§16-31. 59.1.6 ECHR formulations of the requirement of legality. See especially Art 2 (right to life: death penalty must be “provided by law”); Art 5 (right to liberty/freedom from imprisonment: deprivation of liberty must be “in accordance with a procedure prescribed by law”); Art 6 (fair hearing: independent and impartial tribunal must be “established by law”); Art 8 (privacy: interference must be “in accordance with the law”); Art 9 (freedom of religion: limitations must be “prescribed by law”); Art 10 (freedom of expression: restrictions must be “prescribed by law”); Art 11 (freedom of association: restrictions must be “prescribed by law”); A1P1 (protection of property: deprivation must be “subject to the conditions provided for by law”). 59.1.7 ECHR requirement of legality requires domestic lawfulness as a precondition. McCann v State Hospitals Board for Scotland [2017] UKSC 31 [2017] 1 WLR 1455 at §58 (Art 8 interference not in accordance with the law because of failure to address domestic statutory requirements); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §73 (Art 8 interference a violation because of “failure to obtain authorisation … [in] breach of domestic law”); Langley v Liverpool City Council [2005] EWCA Civ 1173 [2006] 1 WLR 375 at §52 (violation of Art 8 since not “in accordance with law” where act interfering with family life and not compatible with domestic law); R (AB) v Secretary of State for Justice [2009] EWHC 2220 (Admin) [2010] 2 All ER 151 at §56 (decision not “in accordance with the law” if relevant issues not considered); A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14 [2006] 2 AC 363 at §61 (incompatibility with domestic law only involving a breach of a Convention right if the Convention right is thereby removed). 59.1.8 ECHR requirement of legality: certainty, accessibility and foreseeability. R (Ngole) v University of Sheffield [2019] EWCA Civ 1127 [2019] ELR 443 at §103 (regulations and guidance sufficiently clear); Christian Institute v Lord Advocate [2016] UKSC 51 [2016] SLT 805 at §85 (Scottish ‘named person’ enactment incompatible with Art 8 by reason of lack of precision and foreseeability in information sharing provisions); Beghal v DPP [2015] UKSC 49 [2016] AC 88 (powers of questioning at ports not infringing the requirement of legality); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §§232-234 (Orders not contravening ECHR principles of certainty); R (Purdy) v DPP [2009] UKHL 45 [2010] 1 AC 345 (Art 8 requiring DPP to formulate a policy on assisted suicides abroad, to provide the requisite foreseeability for individuals to regulate their conduct); R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 [2006] 2 AC 148 at §34 (sufficient that governed by guidance and policy, albeit hospital entitled to depart from it for good reason). 59.1.9 ECHR requirement of necessity: necessary/in a democratic society/pressing need. ECHR Art 2 (deprivation of right to life: use of force to defend from violence must be “no more than absolutely necessary”); Art 5 (right to liberty/freedom from imprisonment: deprivation of liberty “when it is reasonably considered necessary” to prevent offence); Art 6 (fair hearing: exclusion of press/public where “in the interest of morals, public order or national security in a democratic society” or where “strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”); Art 8 (privacy: interference must be “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms 739

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of others”); Art 9 (freedom of religion: limitations must be “necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”); Art 10 (freedom of expression: restrictions must be “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”); Art 11 (freedom of association: restrictions must be “necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”); A1P1 (protection of property: deprivation must be “in the public interest” and state control on use must be “to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §102 (emphasising “in a democratic society”, as reflecting that “not everything that the state asserts to be necessary will be acceptable in a democratic society”, whose “hallmarks … are pluralism, tolerance and broad-mindedness”). 59.1.10 HRA proportionality. {P37} (proportionality method); {37.1.3} (proportionality and HRA:ECHR rights).

59.2 Article 2: life. Article 2 violations occur, in particular, in cases where public authorities have (1) taken life, (2) failed to safeguard life or (3) failed to ensure a sufficient investigation into the taking, endangerment or safeguarding of life. 59.2.1 Article 2: the right to life. See HRA Sch 1 Art 2 (HRA:ECHR Art 2) (“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection”); R (Middleton) v West Somerset Coroner [2004] UKHL 10 [2004] 2 AC 182 at §5 (Lord Bingham: “Compliance with the [Art 2] substantive obligations … must rank among the highest priorities of a modern democratic state governed by the rule of law. Any violation or potential violation must be treated with great seriousness”). 59.2.2 Article 2: state use of lethal force. R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) [2016] QB 862 at §50 (absolute necessity as “requirement of strict proportionality”); R (Middleton) v West Somerset Coroner [2004] UKHL 10 [2004] 2 AC 182 at §2 (referring to the Art 2 “substantive obligation[] not to take life without justification”); R (A) v Lord Saville of Newdigate [2001] EWCA Civ 2048 [2002] 1 WLR 1249 at §§10-11 (Art 2 engaged in relation to Bloody Sunday inquiry, arising out of deaths at the hands of the state). 59.2.3 Article 2: protective/safeguarding/framework duty. R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2020] EWCA Civ 738 (whether Art 2 engaged by healthcare failures); R (LXD) v Chief Constable of Merseyside Police [2019] EWHC 1685 (Admin) at §92 (no “real and immediate risk to … life of the claimants requiring … preventive operational measures to protect [them]”); R (X) v General Medical Council [2019] EWHC 493 (Admin) at §173 (GMC refusal to anonymise determination Art 2 incompatible, given real and immediate suicide risk); R (Scarfe) v Governor of Woodhill Prison [2017] EWHC 1194 (Admin) [2017] ACD 92; Sarjantson v Chief Constable of Humberside [2013] EWCA Civ 1252 [2014] QB 411 (police Art 2 duty to protect from real and imminent risks to life); R (Middleton) v West Somerset Coroner [2004] UKHL 10 [2004] 2 AC 182 at §2 (Art 2 “substantive obligation[] to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life”); Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] 2 AC 72 (duty to protect voluntary psychiatric patient from real 740

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and immediate risk of suicide); Mitchell v Glasgow City Council [2009] UKHL 11 [2009] AC 874 (no Art 2 violation in failure to protect neighbours from violent council tenant); In Re Officer L [2007] UKHL 36 [2007] 1 WLR 2135 (public inquiry witness anonymity and real and immediate risk to life); Savage v South East Partnership NHS Foundation Trust [2008] UKHL 74 [2009] AC 681 (NHS Hospital’s Art 2 duty to take steps to prevent suicide); Van Colle v Hertfordshire Chief Constable [2008] UKHL 50 [2009] AC 225 (Art 2 violation where failure of witness protection). 59.2.4 Article 2: procedural duty (state investigation). Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 (Art 2 investigative duty in the context of a pre-HRA death); R (Silvera) v HM Senior Coroner for Oxfordshire [2017] EWHC 2499 (Admin) [2017] ACD 135 (decision not to resume inquest a breach of Art 2 investigative duty); R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 (no Art 2 duty to investigate 1948 military massacre); R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 [2011] 1 AC 1 (investigative duty in the context of whether soldier’s death said to be attributable to default by the state); R (L) v Secretary of State for Justice [2008] UKHL 68 [2009] AC 588 (injurious near-suicides triggering Art 2 investigative duty); R (Gentle) v Prime Minister [2008] UKHL 20 [2008] 1 AC 1356 (no Art 2 duty to investigate approach to legality of Iraq war in which British soldiers killed); R (Middleton) v West Somerset Coroner [2004] UKHL 10 [2004] 2 AC 182 (coroners’ statutory function of investigating “how” death occurred including “by what means and in what circumstances”, to satisfy Art 2 duty of effective investigation into death where arguable substantive Art 2 breach); R (Green) v Police Complaints Authority [2004] UKHL 6 [2004] 1 WLR 725 at §11 (Art 2 investigation needed where police alleged to have driven at victim with intent to kill); R (GS) v HM Senior Coroner for Wiltshire & Swindon [2020] EWHC 2007 (Admin) at §48 (no Art 2 obligation to investigate wider Russian responsibility for death by poisoning).

59.3 Article 3: cruelty. Article 3 is violated where public authorities engage in, or fail to protect against or respond to, harm constituting torture or inhumane or degrading treatment or punishment. 59.3.1 Article 3: torture, inhuman and degrading treatment. See HRA:ECHR Art 3 (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”). 59.3.2 Article 3: positive obligation (safeguarding). R (Limbuela) v SSHD [2005] UKHL 66 [2006] 1 AC 396 (positive Art 3 obligation and asylum welfare); E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66 [2009] AC 536 (police having complied with Art 3 safeguarding duty as to child protection en route to school); R (Pretty) v DPP [2001] UKHL 61 [2002] 1 AC 800 (Art 3 not bearing on right to live or die). 59.3.3 Article 3: procedural duty (state investigation). D v Commissioner of Police of the Metropolis [2018] UKSC 11 [2019] AC 196 (police violated Art 3 duty effectively to investigate rapes); R (Green) v Police Complaints Authority [2004] UKHL 6 [2004] 1 WLR 725 (Police Complaints Authority satisfying duty of state investigation arising under Art 3). 59.3.4 Article 3: removal/extradition. AM (Zimbabwe) v SSHD [2020] UKSC 17 [2020] 2 WLR 1152 (application of Art 3 in cases concerning availability of medical treatment in country to which being deported); Devani v SSHD [2020] EWCA Civ 612 [2020] 1 WLR 2613 at §59 (identifying the principles applicable to assurances from a foreign state in Art 3 cases); Hafeez v Government of the USA [2020] EWHC 155 (Admin) [2020] 1 WLR 1296 (Art 3 and extradition); Lord Advocate v Dean [2017] UKSC 44 [2017] 1 WLR 2721 at §§25-26 (Art 3 and extradition in the context of absence of reasonable state protection against ill-treatment by non-state agents); R (EM (Eritrea) v SSHD [2014] UKSC 12 [2014] AC 1321 (Art 3 application to ‘Dublin return’ of asylum-seekers to another European country); R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323 (applicability of Art 3 to immigration removals based on ill-treatment in receiving state). 741

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59.3.5 Article 3: other illustrations. R (B) v Secretary of State for Justice [2019] EWCA Civ 9 [2019] 4 WLR 42 at §148 (segregation of young offender not breaching Art 3); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §37 (prisoner segregation not attaining “the minimum level of severity required for a violation of article 3”); R v Lichniak [2002] UKHL 47 [2003] 1 AC 903 (mandatory life sentence not incompatible with Art 3); Napier v Scottish Ministers [2004] UKHRR 881 (slopping out prison regime violating Art 3); R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 [2006] 2 AC 148 (seclusion policy not violating Art 3); R (Limbuela) v SSHD [2005] UKHL 66 [2006] 1 AC 396 (withholding of welfare benefits from asylum-seekers violating Art 3 where left on the streets, seriously hungry and unable to satisfy basic hygiene needs); R (Pretty) v DPP [2001] UKHL 61 [2002] 1 AC 800 (no breach of Art 3 in declining to rule out prosecution for assisted suicide; Art 3 not bearing on right to live or die).

59.4 Article 5: liberty. Article 5 is violated where a relevant deprivation of liberty has taken place which cannot be justified under prescribed permissible bases. 59.4.1 Article 5: right to liberty. See HRA:ECHR Art 5 (“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drugs addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”). See HRA s.14 (designated derogations), Schedule 3 Part I (the 1988 and 1989 notifications, in relation to statutory powers of detention of suspected terrorists) and s.16 (period for which designated derogations have effect); also ECHR Art 15 and HRA s.14(6). Re B (Secure Accommodation Order) [2019] EWCA Civ 2025 [2020] Fam 221 at §§82, 118 (suggesting that Art 5, albeit an unqualified right, as requiring that detention be proportionate to a legitimate aim). 59.4.2 Article 5: ‘deprivation of liberty’ (DOL). R (Jollah) v SSHD [2020] UKSC 4 [2020] 2 WLR 418 (curfew requirements not an Art 5 DOL); R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12 [2006] 2 AC 307 at §25 (stop and search not a DOL, absent special circumstances); SSHD v JJ [2007] UKHL 45 [2008] 1 AC 385 (confinement to a flat 18 hours a day a DOL); SSHD v AP (No 1) [2010] UKSC 24 [2011] 2 AC 1 (overall effect of 16-hour curfew and social isolation constituting a DOL); Austin v Metropolitan Police Commissioner [2009] UKHL 5 [2009] AC 564 (reasonable and proportionate police containment not a DOL). 59.4.3 Article 5: mental health illustrations. R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52 (failure to give prompt and adequate reasons for mental 742

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health recall not rendering detention a violation of Art 5); Surrey County Council v P [2014] UKSC 19 [2014] AC 896 (whether care arrangements a deprivation of liberty under Art 5); R (Modaresi) v Secretary of State for Health [2013] UKSC 53 [2013] PTSR 1031 (Art 5(4) and review of Mental Health Act 1983 detention); R (H) v Secretary of State for Health [2005] UKHL 60 [2006] 1 AC 441 (Art 5-compatibility of statutory scheme regarding incompetent patient’s access to MHRT or county court, where next-of-kin displacement sought); R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 [2006] 2 AC 148 (seclusion policy Art 5-compatible); R (H) v SSHD [2003] UKHL 59 [2004] 2 AC 253 (Art 5 implications of mental health review tribunal failure to review its decision where discharge conditions proving unsustainable); Anderson v Scottish Ministers [2001] UKPC D5 [2003] 2 AC 602 (whether treatment a requirement of mental health detention under Art 5(1)(e)). 59.4.4 Article 5: immigration/extradition illustrations. Pomiechowski v District Court of Legnica [2012] UKSC 20 [2012] 1 WLR 1604 at §26 (Art 5(4) not applying, in cases of removal or extradition detention, to provide a judicial remedy as to the removal or extradition decision to which the detention relates); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 (unlawful detention for departure from published policy); R (Kambadzi) v SSHD [2011] UKSC 23 [2011] 1 WLR 1299 (unlawful detention where failure to conduct detention reviews required under published detention policy); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 (derogation from Art 5, where non-nationals detained without trial on security grounds, not strictly necessary under Art 15); R (Saadi) v SSHD [2002] UKHL 41 [2002] 1 WLR 3131 (detention of asylum-seekers for short period pending decision-making compatible with Art 5(1)(f)). 59.4.5 Article 5: parole/release/recall illustrations. R (Youngsam) v Parole Board [2019] EWCA Civ 229 [2020] QB 387 (Art 5(4) not applicable to determinate-sentence prisoners); R (Bate) v Parole Board [2018] EWHC 2820 (Admin) [2019] ACD 4 (HRA damages for delays in breach of Art 5(4)); R (Whiston) v Secretary of State for Justice [2014] UKSC 39 [2015] AC 176 (Art 5(4) not applicable to recall during custodial period); In re Corey [2013] UKSC 76 [2014] AC 516 (procedural unfairness in breach of Art 5(4) not a basis for judicial review court to grant bail); R (Sturnham) v Parole Board [2013] UKSC 23 [2013] 2 AC 254 (whether Art 5 damages arising from parole delays); In Re D [2008] UKHL 33 [2008] 1 WLR 1499 at §35 (no undue delay by Life Sentence Review Commissioners violating Art 5(4)); R v Lichniak [2002] UKHL 47 [2003] 1 AC 903 (mandatory life sentence not incompatible with Art 5); R (Giles) v Parole Board [2003] UKHL 42 [2004] 1 AC 1 (no need for periodic review of protective element of extended sentence); R (West) v Parole Board [2005] UKHL 1 [2005] 1 WLR 350 at §37 (parole board oral hearings); R (Roberts) v Parole Board [2005] UKHL 45 [2005] 2 AC 738 (use of special advocate). 59.4.6 Article 5: other illustrations. Brown v Parole Board [2017] UKSC 69 [2018] AC 1 (nature of Art 5 obligation to provide rehabilitative treatment courses to post-tariff/penal element prisoners); R (Hicks) v Commissioner of Police of the Metropolis [2017] UKSC 9 [2017] AC 256 (Art 5 and short-term detention to prevent breach of the peace); Al-Waheed v Ministry of Defence [2017] UKSC 2 [2017] AC 821 (Art 5 compatibility of extra-territorial detention for imperative reasons of security); R (O) v Harrow Crown Court [2006] UKHL 42 [2007] 1 AC 249 (“exceptional circumstances” test for bail in certain cases not incompatible with Art 5(3), if read down as imposing only an evidential burden); R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12 [2006] 2 AC 307 (stop and search not violating Art 5); R (Wardle) v Crown Court at Leeds [2001] UKHL 12 [2002] 1 AC 754 (custody time limits regulations not arbitrary detention incompatible with Art 5).

59.5 Article 6: fair hearing. Article 6 violations occur where there has been a failure to secure the necessary civil and criminal due process guarantees for achieving basic fairness and impartiality. 59.5.1 Article 6(1): fair hearing (civil protections). See HRA:ECHR Art 6(1) (“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent 743

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and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”); HM Advocate v R [2002] UKPC D3 [2004] 1 AC 462 at §8 (Art 6(1) containing “three separate, distinct, and independent guarantees”). 59.5.2 Article 6(2)-(3): fair trial (criminal protections). See HRA:ECHR Art 6(2) (“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”) and Art 6(3) (“Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court”). 59.5.3 Article 6: classification as civil or criminal. Birmingham City Council v Jones [2018] EWCA Civ 1189 [2019] QB 521 (gang-related violence injunctions not a criminal charge); SSHD v MB [2007] UKHL 46 [2008] 1 AC 440 (control orders civil not criminal); R (Greenfield) v SSHD [2005] UKHL 14 [2005] 1 WLR 673 (prison disciplinary offence a criminal charge); R v Benjafield; R v Rezvi [2002] UKHL 1 & 2 [2003] 1 AC 1099 (confiscation orders not a new criminal charge); Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 at §§83-86 (district auditor surcharge not a criminal charge for Art 6 purposes); R v H [2003] UKHL 1 [2003] 1 WLR 411 (jury procedure for dealing with defendant unfit to stand trial not the determination of a criminal charge); R (R) v Durham Constabulary [2005] UKHL 21 [2005] 1 WLR 1184 (warning under Crime and Disorder Act 1998 not determination of a criminal charge). 59.5.4 Article 6 criminal cases and protections: general. Montgomery v Her Majesty’s Advocate and the Advocate General for Scotland [2003] 1 AC 641, 673C (need for “‘sufficient’ guarantees or safeguards and for the exclusion of any ‘legitimate doubt’”); R (Greenfield) v SSHD [2005] UKHL 14 [2005] 1 WLR 673 (violation of Art 6 (criminal) where prison disciplinary finding without legal representation); R v H [2004] UKHL 3 [2004] 2 AC 134 (Art 6-compliance in the context of prosecution disclosure, public interest immunity and use of special counsel); R v A (No 2) [2001] UKHL 25 [2002] 1 AC 45 (construing statutory restrictions on evidential admissibility to protect fair trial right); McLean v Buchanan [2001] UKPC D3 [2001] 1 WLR 2425 (fixed fee payments for criminal defence work not preventing effective legal assistance under Art 6(3)); R v P [2002] 1 AC 146 (fair hearing test in Art 6 and admissibility of telephone intercept evidence); R (D) v Camberwell Green Youth Court [2005] UKHL 4 [2005] 1 WLR 393 (special measures directions compatible with Art 6 (criminal) fair trial); Montgomery v Her Majesty’s Advocate and the Advocate General for Scotland [2003] 1 AC 641 (Art 6 and whether pre-trial publicity preventing fair trial); R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 (mandatory tariff-setting a judicial sentencing function and so incompatible with Art 6 for Secretary of State to undertake it). 59.5.5 Article 6 (criminal): presumption of innocence/onus/standard of proof. R (Hallam) v Secretary of State for Justice [2019] UKSC 2 [2020] AC 279 (miscarriage of justice compensation restriction, to cases of proven innocence, not breaching Art 6 presumption of innocence); R v Briggs-Price [2009] UKHL 19 [2009] AC 1026 (Art 6 presumption of innocence requiring criminal standard of proof for drug-trafficking confiscation proceedings); Sheldrake v DPP [2004] UKHL 43 [2005] 1 AC 264 (disproportionate legal reverse-burden read as evidential only under HRA s.3), §21; R v Lambert [2001] UKHL 37 [2002] 2 AC 545 (whether objective justification for imposing burden of proof as to certain defences on the accused); R v Johnstone [2003] UKHL 28 [2003] 1 WLR 1736 (Art 6 and presumption of innocence/reverse burden of proof in context of prosecution under Trade Marks Act 1994 s.92); 744

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Serious Organised Crime Agency v Gale [2011] UKSC 49 [2011] 1 WLR 2760 (Art 6 presumption of innocence not requiring criminal standard in proving criminal conduct in civil recovery proceedings). 59.5.6 Article 6 (criminal): self-incrimination/right to silence. R (Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin) [2019] 1 WLR 6660 at §57 (disciplinary tribunal having power to draw adverse inferences from silence of individual charged with regulatory breaches); Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681 (provision permitting use of confession made under compulsion not disproportionate interference with privilege against self-incrimination, being a right implied within Art 6); R v Dimsey; R v Allen [2001] UKHL 46 and 45 [2002] 1 AC 509 (convictions for failure to declare income to the revenue not a breach of Art 6 self-incrimination protection). 59.5.7 Article 6: determination of civil right or obligation (DOCRO).144 QX v SSHD [2020] EWHC 1221 (Admin) [2020] ACD 83 at §78 (statutory review of temporary exclusion order conditions a DOCRO); Pomiechowski v District Court of Legnica [2012] UKSC 20 [2012] 1 WLR 1604 at §§31-33 (decision to extradite a UK citizen a DOCRO); R (Wright) v Secretary of State for Health [2009] UKHL 3 [2009] AC 739 (interim listing as unsuitable care worker a DOCRO); Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624 at §§20, 37 (local authority homelessness decision not a DOCRO, because a welfare benefit “dependent upon … evaluative judgments”); R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §§117, 121,123 (prison segregation decision not a DOCRO); R (G) v Governors of X School [2011] UKSC 30 [2012] 2 AC 167 (school governors disciplinary decision regarding teacher not a DOCRO given subsequent function of Independent Safeguarding Authority); R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48 [2006] 1 AC 42 (enforcement of maintenance arrears not a DOCRO). 59.5.8 Article 6: independent and impartial tribunal. R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 (Secretary of State not an independent and impartial tribunal in setting mandatory lifer tariffs); R v Spear [2002] UKHL 31 [2003] 1 AC 734 (military court martial having sufficient independence and impartiality despite practice of having permanent presidents); R v Abdroikov [2007] UKHL 37 [2007] 1 WLR 2679 (Art 6 incompatibility where serving police officer on jury in criminal trial involving conflict of evidence between police and accused); Sadler v General Medical Council [2003] UKPC 59 [2003] 1 WLR 2259 (GMC’s Committee on Professional Performance an independent and impartial tribunal); {63.3.5} (bias: real possibility test and Art 6 independent and impartial tribunal). 59.5.9 Article 6: judicial review/appeal (‘full jurisdiction’) suffices. R (British Medical Association) v Secretary of State for Health and Social Care [2020] EWHC 64 (Admin) [2020] Pens LR 10 at §108 (here, “nothing less than a full right of appeal to a court on the merits would suffice”); R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §§123, 126 (judicial review would satisfy Art 6); R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 at §45 (judicial review deciding the key, objective question of fact sufficient); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 (Secretary of State not independent and impartial, but planning system together with judicial review compliant with Art 6); Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430 (judicial review-type appeal sufficient “full jurisdiction” in the context of homeless decisions); Ali v Birmingham City Council [2010] UKSC 8 [2010] 2 AC 39 at §54 (county court would not need full fact-finding jurisdiction to meet Art 6); Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 (no breach of Art 6 as to independence and impartiality given combined procedures of district auditor and Divisional Court on appeal). 59.5.10 Article 6: fair hearing. Kapri v Lord Advocate [2013] UKSC 48 [2013] 1 WLR 2324 (whether extradition incompatible with Art 6 because of flagrant denial of fair 144The

equivalent paragraph in a previous edition was relied on in R (Pelling) v Newham LBC [2011] EWHC 3265 (Admin) at §35 (Blake J).

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trial rights); Pomiechowski v District Court of Legnica [2012] UKSC 20 [2012] 1 WLR 1604 at §37 (absence of power to extend time for extradition appeal would be disproportionate and Art 6-incompatible); SSHD v AF (No 3) [2009] UKHL 28 [2010] 2 AC 269 (Art 6 requiring that control orders must involve the gist or essence of the case being disclosed to the controlee); R (Wright) v Secretary of State for Health [2009] UKHL 3 [2009] AC 739 at §28 (Art 6 requiring right to make representations before provisional listing as unsuitable to work with children); Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 at §87 (the “rights to a fair hearing, to a public hearing and to a hearing within a reasonable time”); R v Mirza [2004] UKHL 2 [2004] 1 AC 1118 (rule regarding non-investigation into jury deliberations Art 6-compatible); R (A) v Director of Establishments of Security Service [2009] UKSC 12 [2010] 2 AC 1 at §30 (closed procedure in the Investigatory Powers Tribunal not necessarily incompatible with Art 6); Tariq v Home Office [2011] UKSC 35 [2012] 1 AC 452 (no absolute right under Art 6 to the essence of the case in a security-cleared employment discrimination claim). 59.5.11 Article 6: public hearing/judgment in public. Clark v Kelly [2003] UKPC D1 [2004] 1 AC 681 (criminal trial before the Scottish District Court a “public hearing”, since clerk’s advice given in private was provisional and ventilated in open court); R (Dudson) v SSHD [2005] UKHL 52 [2006] 1 AC 245 (tariff resetting not requiring oral hearings for Art 6-compatibility here); R (Hammond) v SSHD [2005] UKHL 69 [2006] 1 AC 603 (Art 6 requiring statutory implied condition allowing oral hearing of tariff-reconsideration in an appropriate case). 59.5.12 Article 6: equality of arms. McLean v Buchanan [2001] UKPC D3 [2001] 1 WLR 2425 at §39 (considering equality of arms in context of fixed legal aid fees). 59.5.13 Article 6: delay/hearing within a reasonable time. Attorney General’s Reference No 2 of 2001 [2003] UKHL 68 [2004] 2 AC 72 (consequences of Art 6 delay on whether trial unfair); Moore v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) at §172 (delays as breach of HRA:ECHR Art 6); Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 at §§108-109 (whether “time taken to determine the person’s rights and obligations was unreasonable”); Procurator Fiscal, Linlithgow v Watson [2002] UKPC D1 [2004] 1 AC 379 (delay in prosecution incompatible with Art 6 “reasonable time” requirement); HM Advocate v R [2002] UKPC D3 [2004] 1 AC 462 (unreasonable delay rendering continuance of prosecution incompatible with Art 6). 59.5.14 Article 6: access to court. Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 [2017] ICR 1327 at §14 (“article 6 implicitly confers a right of access to a court to determine a dispute and not just a right to have it tried fairly”; “the right to a court is not absolute … the rule of law … may justify restrictions if they pursue a legitimate objective by a proportionate means and do not impair the essence of the claimant’s right”), §76 (statutory immunity from employment claims incompatible with Art 6 access to court); R (Connor) v Secretary of State for Work and Pensions [2020] EWHC 1999 (Admin) at §§15, 28 (regulation held incompatible with Art 6 on basis that disproportionate interference with right of access to a court). 59.5.15 Article 6: other. Volaw Trust and Corporate Services Ltd v Office of the Comptroller of Taxes (Jersey) [2019] UKPC 29 (Art 6 and privilege against self-incrimination in tax context); A v SSHD [2005] UKHL 71 [2006] 2 AC 221 at §26 (use of torture-induced evidence in domestic court incompatible with Art 6); {31.3.7}-{31.3.8} (waiver); Millar v Procurator Fiscal [2001] UKPC D4 [2002] 1 WLR 1615 (in context of right to an independent and impartial tribunal, waiver needing voluntary, informed and unequivocal election); {64.2.12} (reasons, duty and fundamental rights: Art 6). 59.5.16 Relationship between the common law and Article 6. R (Murungaru) v SSHD [2008] EWCA Civ 1015 at §§25-26 (ECHR not needed here, where common law due process sufficient); R v Legal Aid Board, ex p Duncan [2000] COD 159 (transcript at §457) (“The position in the law of England and Wales is in line with the jurisprudence of the European Court of Human Rights”); R v SSHD, ex p Abid Jamil [2000] Imm AR 51, 55 (Tucker J: “the portions 746

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of [Art 6] which apply to the present case do no more than reflect what has been part of the common law of England for many years”); R v Cambridge University, ex p Beg (1999) 11 Admin LR 505, 512g (“for present purposes I do not see any distinction between the right to a fair trial under the rules of natural justice at Common Law and the right to a fair trial under art 6”); Nwabueze v General Medical Council [2000] 1 WLR 1760, 1775F (PC describing common law requirement of disclosure of advice to GMC, for comment by parties; “In this respect the requirements of the common law would appear to be at one with those of article 6 of the Convention”); R v SSHD, ex p Q [2000] UKHRR 386 (allocation to a particular prison not an infringement of right to a fair trial at common law, being the same for these purposes as Art 6); R (Bright) v Central Criminal Court [2001] 1 WLR 662, 679E (Judge LJ: “the principles to be found in articles 6 and 10 of the European Convention are bred in the bone of the common law”); R v Looseley [2001] UKHL 53 [2001] 1 WLR 2060 (no appreciable difference between well-established English law as to excluding evidence or staying criminal proceedings as an abuse of process and the right to a fair hearing under HRA:ECHR Art 6); 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 (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 at §46 (“the common law sets high standards of due process in non-judicial settings to which the European Court of Human Rights at Strasbourg declines to apply article 6”). 59.5.17 Article 6 as a flexi-principle. R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin) at §29 (Article 6 involving “a contextual and fact-sensitive approach to the question of disclosure”); Tariq v Home Office [2011] UKSC 35 [2012] 1 AC 452 at §81 (as to whether individuals entitled to the essence of the case against them, “the context for the argument is what matters”), §81 (“There are no hard edged rules in this area of the law”); Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430 (approaching the Art 6 requirements of independence as being contextual, with judicial review readily ensuring compatibility in the context of an “administrative” decision-making context); R (Fleurose) v Securities and Futures Authority [2001] EWCA Civ 2015 at §14 (Schiemann LJ, speaking in the context of Art 6: “What fairness requires will vary from case to case”).

59.6 Article 8: private and family life. Violations of Article 8 involve public authorities unjustifiedly interfering with, or failing to protect against interference with, the basic right to respect for private and family life, home and correspondence. 59.6.1 Article 8: right to respect for home, private and family life. HRA:ECHR Art 8 (“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”). 59.6.2 Article 8 ‘positive’ obligation: illustrations. R (LW) v Sodexo Ltd [2019] EWHC 367 (Admin) [2019] 1 WLR 5654 (positive obligation under Art 8 to secure effective arrangements to protect prisoners at contracted-out prisons from non-compliant strip searches); R (Agyarko) v SSHD [2017] UKSC 11 [2017] 1 WLR 823 at §41 (Lord Reed: “the boundary between cases best analysed in terms of positive obligations, and those best analysed in terms of negative obligations, can be difficult to draw”); R (McDonald) v Kensington and Chelsea Royal LBC [2011] UKSC 33 [2011] PTSR 1266 at §15 (Art 8 “can impose a positive obligation on a state to take measures to provide support”); R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621 at §69 (erosion of distinction between ‘positive’ and ‘negative’ obligation in the context of Art 8 and immigration entry or removal). 59.6.3 Article 8 ‘procedural’ obligation: illustrations. Re XY [2020] UKSC 26 [2020] 1 WLR 2703 at §27 (“Article 8 includes procedural as well as substantive rights”), §41; R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380 at §§49-50 (Art 8 together with Art 13 requiring deportation appeal to be effective); R (N) v Lewisham LBC [2014] UKSC 62 747

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[2015] AC 1259 at §62 (procedural aspect of Art 8), §74 (sufficient procedural safeguards here); Principal Reporter v K [2010] UKSC 56 [2011] 1 WLR 18 at §41 (“there are positive procedural obligations inherent in the right to respect for family life”), §48 (Art 8 procedural breach); R (F (A Child) v SSHD [2010] UKSC 17 [2011] 1 AC 331 (sex offender lifelong notification requirements disproportionate absent any provision for individual review); R (Wright) v Secretary of State for Health [2009] UKHL 3 [2009] AC 739 at §37 (Art 8 procedural breach). 59.6.4 Article 8: immigration illustrations (entry). R (MM (Lebanon)) v SSHD [2017] UKSC 10 [2017] 1 WLR 771 (minimum income requirement); SSHD v Abbas [2017] EWCA Civ 1393 [2018] 1 WLR 533 §§16, 18 (unlike family life, private life not a basis for an Art 8 positive obligation to allow entry to the UK); R (Bibi) v SSHD [2015] UKSC 68 [2015] 1 WLR 5055 (language precondition entry clearance rule Art 8-compatible); R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621. 59.6.5 Article 8: immigration illustrations (removal). Akinyemi v SSHD [2019] EWCA Civ 2098 [2020] 1 WLR 1843 (approach to Art 8 in deportation case); R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380 (breach of Art 8 because no system for out-of-country appeal to ensure ability to give live evidence); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799; Zoumbas v SSHD [2013] UKSC 74 [2013] 1 WLR 3690 (Art 8 and child’s best interests in immigration removal context); ZH (Tanzania) v SSHD [2011] UKSC 4 [2011] 2 AC 166; Beoku-Betts v SSHD [2008] UKHL 39 [2009] AC 115; EB (Kosovo) v SSHD [2008] UKHL 41 [2009] AC 1159 (relevance of delay in decision-making); EM (Lebanon) v SSHD [2008] UKHL 64 [2009] AC 1198 (whether flagrant breach of family life on return). 59.6.6 Article 8: extradition illustrations. Konecny v District Court in Brno-Venkov [2019] UKSC 8 [2019] 1 WLR 1586 at §57 (relevance of Art 8 to address passage of time in a conviction in absentia case); Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin) [2016] 1 WLR 551 at §§14(ii), 15 (‘balance sheet’ approach to Art 8 extradition proportionality); H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 [2013] 1 AC 338; Norris v Government of the United States of America (No 2) [2010] UKSC 9 [2010] 2 AC 487. 59.6.7 Article 8: prisoner/detention illustrations. R (LW) v Sodexo Ltd [2019] EWHC 367 (Admin) [2019] 1 WLR 5654 (ineffective arrangements to protect prisoners at contracted-out prisons from systemic non-compliant strip searches); McCann v State Hospitals Board for Scotland [2017] UKSC 31 [2017] 1 WLR 1455 (mental hospital smoking ban proportionate); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §86 (segregation a disproportionate interference with private life); R (McE) v Prison Service of Northern Ireland [2009] UKHL 15 [2009] AC 908 (covert surveillance of lawyer–detainee consultations and Art 8-compatibility); R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 (blanket policy of searching legal correspondence in prisoners’ absence violating ECHR Art 8). 59.6.8 Article 8: data/information/publicity illustrations. R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058 (Art 8 compatibility of pilot project for use of automated facial recognition technology); R (P) v Secretary of State for Justice [2019] UKSC 3 [2020] AC 185 (Art 8 compatibility of statutory scheme for police disclosure of spent convictions to potential employers); R (Butt) v SSHD [2019] EWCA Civ 256 [2019] 1 WLR 3873 at §§110, 145 (no Art 8 breach in Home Office sharing of information about claimant); R (R) v Chief Constable of Manchester [2018] UKSC 47 [2018] 1 WLR 4079 (no Art 8 violation where police sharing with potential employer information as to acquittal); R (C) v Secretary of State for Work and Pensions [2017] UKSC 72 [2017] 1 WLR 4127 (no Art 8 breach in DWP policies regarding retention of transgender history); Christian Institute v Lord Advocate [2016] UKSC 51 [2016] SLT 805 (Scottish ‘named person’ enactment incompatible with Art 8 by reason of lack of precision and foreseeability in information sharing provisions); In re JR 38 [2015] UKSC 42 [2016] AC 1131 (rioting children having no reasonable expectation of privacy from police publicising photographs to identify those involved in criminality, so no Art 8 interference); Gaughran v Chief Constable of the Northern Ireland Police [2015] 748

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UKSC 29 [2016] AC 345 (indefinite retention of DNA profile, fingerprints and photograph of person convicted of drink-driving offence Art 8-compatible); R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland [2015] UKSC 9 [2015] AC 1065 (police retention of demonstration-attendance and harassment-allegation information Art 8-compatible); R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35 [2015] AC 49 (police retention of cautions, warnings and reprimands Art 8-incompatible); R (GC) v Metropolitan Police Commissioner [2011] UKSC 21 [2011] 1 WLR 1230 (indefinite police retention of biometric data incompatible with Art 8); R (F (A Child) v SSHD [2010] UKSC 17 [2011] 1 AC 331 (sex offender lifelong notification requirements with no review incompatible with Art 8). 59.6.9 Article 8: housing illustrations. McDonald v McDonald [2016] UKSC 28 [2017] AC 273 (Art 8 not giving rise to distinct proportionality defence against private sector landlord); R (N) v Lewisham LBC [2014] UKSC 62 [2015] AC 1259 (termination of temporary homelessness accommodation); Hounslow LBC v Powell [2011] UKSC 8 [2011] 2 AC 186 (availability of Art 8 necessity and proportionality as a defence in local authority possession proceedings); Manchester City Council v Pinnock (No 1) [2010] UKSC 45 [2011] 2 AC 104 (Art 8 defence to possession proceedings meaning power to make appropriate findings of fact). 59.6.10 Article 8: other illustrations. Sutherland v HM Advocate [2020] UKSC 32 [2020] 3 WLR 327 at §§31, 64 (no Art 8-interference when evidence obtained by a ‘paedophile hunter’ group admitted at criminal trial); R (Elan-Cane) v SSHD [2020] EWCA Civ 363 [2020] 3 WLR 386 (refusal to allow an “X” gender marker in passport compatible with Art 8); Husson v SSHD [2020] EWCA Civ 329 at §36 (Art 8 arguably engaged where claimant wholly or substantially deprived of the ability to work); Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 (statutory scheme requiring women to carry a pregnancy to term even in cases of rape, incest and fatal foetal abnormality incompatible with Art 8); AB v HM Advocate [2017] UKSC 25 [2017] SLT 401 (Scottish enactment removing child sex offence ‘reasonable belief’ defence, where previous relevant charge but irrespective of whether proper warning actually given, a disproportionate interference with Art 8); SXH v CPS [2017] UKSC 30 [2017] 1 WLR 1401 (Art 8 not engaged by decision to prosecute conduct which is not itself within the scope of Art 8); R (Roberts) v Metropolitan Police Commissioner [2015] UKSC 79 [2016] 1 WLR 210 (police stop and search power Art 8-compatible); Beghal v DPP [2015] UKSC 49 [2016] AC 88 (coercive anti-terrorism questioning powers at ports compatible with Art 8); R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [2015] AC 657 (law on assisted suicide not incompatible with Art 8); R (McDonald) v Kensington and Chelsea Royal LBC [2011] UKSC 33 [2011] PTSR 1266 at §19 (Art 8 non-interference and justification in context of response to care needs) R (Countryside Alliance) v Attorney General [2007] UKHL 52 [2008] 1 AC 719 (Art 8 not engaged by hunting ban); R v P [2002] 1 AC 146 (admissibility of telephone intercept evidence not a breach of Art 8); Marcic v Thames Water Utilities Ltd [2003] UKHL 66 [2004] 2 AC 42 (statutory sewerage scheme Art 8-compatible); Re B (A Minor) [2001] UKHL 70 [2002] 1 WLR 258 (Art 8 and adoption orders).

59.7 Article 10: expression. Article 10 is violated where freedom of expression and communication is unjustifiedly interfered with or inadequately protected by public authorities. 59.7.1 Article 10: Freedom of expression (speech). See HRA:ECHR Art 10 (“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of 749

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disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”). 59.7.2 Article 10: media illustrations. R (Autonomous Non-Profit Organisation TV-Novosti) v Office of Communications [2020] EWHC 689 (Admin) [2020] 1 WLR 3130 (broadcasting impartiality provisions compatible with Art 10); A v British Broadcasting Corporation [2014] UKSC 25 [2015] AC 588 (anonymity order compatible with Art 10); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 (journalist and access to information) at §§90-96 (discussing whether Art 10 involves a general right to receive information); R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185 (BBC’s refusal to broadcast a party election broadcast on grounds of taste and decency not an unjustified interference with freedom of political speech, given the admitted legitimacy of a power to prevent the broadcast of “offensive material”); Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29 [2002] 1 WLR 2033 (circumstances to justify necessity for an order requiring newspaper to disclose identify of intermediary, in order to identify original source releasing medical information in breach of confidence); Campbell v MGN Ltd [2004] UKHL 22 [2004] 2 AC 457 (HL considering interrelationship between Art 10 and Art 8). 59.7.3 Article 10: other illustrations. R (Miranda) v SSHD [2016] EWCA Civ 6 [2016] 1 WLR 1505 at §119 (in context of journalists, Terrorism Act 2000 Sch 7 powers to stop, question and detain having insufficient safeguards to be compatible with Art 10); R (Miller) v College of Policing [2020] EWHC 225 (Admin) at §§283-286 (police violating Art 10 in actions dealing with complaint about claimant’s tweets); R (Ngole) v University of Sheffield [2019] EWCA Civ 1127 [2019] ELR 443 (disciplinary action and sanction disproportionate by reference to Art 10); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 (exclusion order preventing dissident Iranian resident in France from entering UK, invited for discussions with MPs, Art 10-compatible); BBC v Sugar (No 2) [2012] UKSC 4 [2012] 1 WLR 439 (considering Art 10 in the context of freedom of information); Attorney General v Scotcher [2005] UKHL 36 [2005] 1 WLR 1867 (statutory confidentiality of jury room deliberations Art 10-compatible, since allowing bona fide disclosures to court authorities); R v Shayler [2002] UKHL 11 [2003] 1 AC 247 (Official Secrets Act restrictions on any public immunity defence Art 10-compatible given other whistleblowing safeguards); Times Newspapers Ltd v Flood [2017] UKSC 33 [2017] 1 WLR 1415 (when CFA success fees Art 10-incompatible). 59.7.4 HRA and remedies: freedom of expression. {9.4.10}

59.8 Article 14: non-discrimination. A violation of Article 14 arises where, in a case falling within the ambit of another Convention right, there is an unjustified (disproportionate) inequality of treatment, on some status-related basis, of persons in relevantly comparable positions. 59.8.1 Article 14: Prohibition of discrimination. See HRA:ECHR Art 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”). 59.8.2 Declaration that Art 14 rights have been violated. R (TD) v Secretary of State for Work and Pensions [2020] EWCA Civ 618 at §93 (granting “a declaration that these [claimants’] rights under Article 14 have been violated”, being “similar to the remedy which the [ECtHR] usually grants …”), §94 (“It will be a matter for the Secretary of State to decide how to respond … the design of any … scheme will in the first instance be for the Secretary of State, although it must be done in a way which is lawful, including by reference to the Convention rights”). 59.8.3 Article 14 ‘indirect discrimination’. OA v Secretary of State for Education [2020] EWHC 276 (Admin) at §30 (“The Convention does not use the language of direct or indirect discrimination, but the European Court of Human Rights has developed a very similar 750

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concept to indirect discrimination … ‘[in] the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group’”). 59.8.4 Article 14: failing to treat dissimilar groups differently. R (Vincent) v Secretary of State for Work and Pensions [2020] EWHC 1976 (Admin) at §§7, 18 (Art 14 claim for “failure to treat differently persons whose situations are significantly different”); R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21 [2019] 1 WLR 3289 at §44 (discrimination from similar treatment of groups in relevantly different situations). 59.8.5 Article 14: four stages. In re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250 [2018] 1 WLR 4250 at §15 (Lady Hale, identifying the “four questions …: (1) Do the circumstances ‘fall within the ambit’ of one or more of the Convention rights? (2) Has there been a difference of treatment between two persons who are in an analogous situation? (3) Is that difference of treatment on the ground of one of the characteristics listed or ‘other status’? (4) Is there an objective justification for that difference in treatment?”). Examples of equivalent four stages include: R (Stott) v Secretary of State for Justice [2018] UKSC 59 [2020] AC 51 at §8 (Lady Black); Gilham v Ministry of Justice [2019] UKSC 44 [2019] 1 WLR 5905 at §28 (Lady Hale); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §41 (Leggatt LJ). Another version is R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449 at §8 (Lord Reed: “A violation of article 14 … arises where there is: (1) a difference in treatment, (2) of persons in relevantly similar positions, (3) if it does not pursue a legitimate aim, or (4) if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised”). 59.8.6 Article 14: no rigid formulism. In re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250 [2018] 1 WLR 4250 at §15 (Lady Hale, describing the “four questions” as “not rigidly compartmentalised”); Worley v Secretary of State for Work and Pensions [2019] EWCA Civ 15 [2019] PTSR 1667 at §33 (a “rigidly formulaic approach is to be avoided”, citing Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 at §134). 59.8.7 Justification: the essential question. R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 [2006] 1 AC 173 at §3 (“The essential question is whether the alleged discrimination, that is the difference in treatment of which complaint is made, can withstand scrutiny … the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate to its adverse impact”), discussed in R (Stott) v Secretary of State for Justice [2018] UKSC 59 [2020] AC 51 at §8 (Lady Black) and applied in Worley v Secretary of State for Work and Pensions [2019] EWCA Civ 15 [2019] PTSR 1667 at §33. 59.8.8 Justifying not the measure but the differential treatment: Lord Bingham in A. A v SSHD [2004] UKHL 56 [2005] 2 AC 68 at §68 (Lord Bingham: “What has to be justified is not the measure in issue but the difference in treatment between one person or group and another”), applied in R (TD) v Secretary of State for Work and Pensions [2020] EWCA Civ 618 at §85 (“what must be justified is the difference in treatment and not merely the underlying policy”); Re A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) [2017] EWCA Civ 2164 [2018] 4 WLR 60 at §108 (“The point that, in an article 14 case, what must be justified is the discrimination and not only the underlying measure is very important and sight must never be lost of it”); cf {54.2.6} (substantive legitimate expectation: proportionality test (justifying the impact on the legitimate expectations)). 59.8.9 Article 14: Bank Mellat four-step proportionality approach to justification (Art 14 stage 4). {37.1.7} (Bank Mellat four-step formulation: applicable to HRA:ECHR Art 14 at stage 4); R (Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542 at §113; R (A) v Secretary of State for Health [2017] UKSC 41 [2017] 1 WLR 2492 at §32 (question (4) justification itself involving “four well-known questions” applicable to proportionality); R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 [2015] 1 WLR 3820 at §33 (asking “(i) does the measure have a legitimate aim to 751

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justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?”). 59.8.10 Article 14: within the ambit/scope of a Convention right. In re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250 [2018] 1 WLR 4250 at §17 (whether “the subject matter of the disadvantage … constitutes one of the modalities of the exercise of the right guaranteed”); R (Johnson) v SSHD [2016] UKSC 56 [2017] AC 365 at §27 (denial of citizenship within the ambit of Art 8); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §§43-44 (discussing the test of ambit). 59.8.11 Article 14: ‘status’. R (TP) v Secretary of State for Work and Pensions [2020] EWCA Civ 37 at §92 (moving home across a local authority boundary an Art 14 ‘status’); R (Khan) v Secretary of State for Justice [2020] EWHC 2084 (Admin) at §58 (statutory increase in custodial term to be served by those convicted of terrorism offences not involving a ‘status’); R (Stott) v Secretary of State for Justice [2018] UKSC 59 [2020] AC 51 (extended determinate sentenced prisoners having an Art 14 ‘status’); AL (Serbia) v SSHD [2008] UKHL 42 [2008] 1 WLR 1434 (persons who entered UK as unaccompanied minors having ‘status’); R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 [2009] AC 311 at §41 (homelessness as a ‘status’); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §§61-69 (discussing the test of ‘status’). 59.8.12 Article 14: analogous situation. R (Stott) v Secretary of State for Justice [2018] UKSC 59 [2020] AC 51 (extended determinate sentence prisoners not in analogous position to other prisoners for Art 14 purposes); In re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250 [2018] 1 WLR 4250 at §24 (question whether “a difference of treatment between two persons in an analogous situation”); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 at §53 (nonnationals and UK nationals posing terrorist threat constituting analogous groups). 59.8.13 Article 14: differential treatment. Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 (housing legislation treating homosexual surviving partners less favourably than heterosexual ones); R (Parkin) v Secretary of State for Work and Pensions [2019] EWHC 2356 (Admin) [2019] ACD 138 at §103 (employed and self-employed not in analogous situations for purposes of Universal Credit). 59.8.14 Article 14 justification: cost/saving alone cannot justify discrimination. R (TD) v Secretary of State for Work and Pensions [2020] EWCA Civ 618 at §86 (“cost alone does not justify a difference in treatment: if resources are finite then a non-discriminatory solution is required”); R (TP) v Secretary of State for Work and Pensions [2020] EWCA Civ 37 at §170 (“budgetary considerations alone cannot justify discrimination”); R (Coll) v Secretary of State for Justice [2017] UKSC 40 [2017] 1 WLR 2093 at §40 (Lady Hale: “Saving cost is, of course, a legitimate objective of public policy. But … ‘budgetary considerations cannot justify discrimination’”); R (RF) v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) [2018] PTSR 1147 at §§44-45 (welfare regulations breaching Art 14 because the objective was to save money, which could not justify discrimination). 59.8.15 Article 14 and manifestly without reasonable foundation (MWRF): applicability. R (Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542 at §134 (MWRF standard applicable to general measure implementing economic or social policy), §140 (no sensible “bright line” between MWRF and the usual balancing exercise); R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502 at §§70-71 (MWRF test applicable to allocation of scarce public resources, outside the context of welfare benefits), §76 (“no material difference”, in the context of resource allocation, between conventional proportionality and MWRF test); R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199 at §§39, 88; Gilham v Ministry of Justice [2019] UKSC 44 [2019] 1 WLR 5905 at §34 (MWRF test applicable to welfare benefits system); R (DA) v Secretary of State 752

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for Work and Pensions [2019] UKSC 21 [2019] 1 WLR 3289 at §65 (MWRF applicable to welfare benefits); JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §86 (applying MWRF standard to other “matters of economic or social policy” including compensation scheme for victims of crime); In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §55 (applying MWRF test to welfare benefits); R (Sanneh) v Secretary of State for Work and Pensions [2017] UKSC 73 [2019] AC 845 at §32 (MWRF standard applicable); R (A) v Secretary of State for Health [2017] UKSC 41 [2017] 1 WLR 2492 at §33 (MWRF standard inapplicable to question of ‘fair balance’). R (Pritchard) v Secretary of State for Work and Pensions [2020] EWHC 1495 (Admin) at §136 (MWRF test not breached); Worley v Secretary of State for Work and Pensions [2019] EWCA Civ 15 [2019] PTSR 1667 at §§43-44 (MWRF test not breached). 59.8.16 MWRF and the conventional standard: a fine line. R (Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542 (general measure implementing economic or social policy), §140 (no sensible “bright line” between MWRF and the usual balancing exercise); R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502 (allocation of scarce public resources, outside the context of welfare benefits), §76 (“no material difference”, in the context of resource allocation, between conventional proportionality and MWRF test); R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §63 (“the distinction … is in some cases a fine one, if not academic”). 59.8.17 MWRF standard breached: illustrations. R (TD) v Secretary of State for Work and Pensions [2020] EWCA Civ 618 at §92 (MWRF because “manifestly disproportionate in its impact on these [claimants] having regard to the legitimate aim which the [defendant] sought to achieve”); R (Hughes) v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin) at §147; Jackson v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin) [2020] 1 WLR 1441 at §§46, 58; In re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250 [2018] 1 WLR 4250 §§34, 38 (legislation not “a proportionate means of achieving the legitimate aim”); R (TP) v Secretary of State for Work and Pensions [2020] EWCA Civ 37 at §§125-128; R (K) v SSHD [2018] EWHC 2951 (Admin) [2019] 4 WLR 92 at §40; R (British Medical Association) v Secretary of State for Health and Social Care [2020] EWHC 64 (Admin) [2020] Pens LR 10 at §139; Langford v Secretary of State for Defence [2019] EWCA Civ 1271 [2020] 1 WLR 537 at §67 (exclusion in public service pension scheme breaching MWRF standard), §§50, 54, 56 (standard breached if court not persuaded that foundation is reasonable); JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §115; In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §67. 59.8.18 Article 14: illustrations. Gilham v Ministry of Justice [2019] UKSC 44 [2019] 1 WLR 5905 at §36 (exclusion of judges from whistleblowing protection Art 14-incompatible); R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) (decisions relating to Statutory Sick Pay and the Coronavirus Job Retention Scheme Art 14-compatible); Jackson v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin) [2020] 1 WLR 1441 (former cohabitee disentitlement to bereavement support violating Art 14); R (British Medical Association) v Secretary of State for Health and Social Care [2020] EWHC 64 (Admin) [2020] Pens LR 10 at §139 (power to suspend pension upon charge alone Art 14-incompatible); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 (two-child limit on child tax credit not a violation of Art 14); R (JP) v SSHD [2019] EWHC 3346 (Admin) [2020] 1 WLR 918 at §167 (no sufficient objective justification for scheduling rule applicable to asylum-seeking trafficking victims); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §125 (coroner’s policy violating Art 14); R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 [2020] AC 1 (unjustified prohibition on different-sex couples entering civil partnership); R (A) v Secretary of State for Health [2017] UKSC 41 [2017] 1 WLR 2492 (refusal to provide abortion services free of charge to those coming to England from Northern Ireland a justified difference in treatment); In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 (regulation requiring nomination form for pension survivorship by unmarried cohabiting partner manifestly without reasonable foundation); R (MA) v Secretary of State for 753

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Work and Pensions [2016] UKSC 58 [2016] 1 WLR 4550 at §46 (housing benefit restriction manifestly without reasonable foundation in failing to include category of exceptions for all transparent medical need); R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 [2015] 1 WLR 3820 (immigration status-based restriction to student loan Art 14-incompatible); Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 [2015] 1 WLR 3250 (suspension of Disability Living Allowance during hospitalisation Art 14-incompatible); R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449 (benefits cap Art 14-compatible). 59.8.19 Article 14: further illustrations. Humphreys v HMRC [2012] UKSC 18 [2012] 1 WLR 1545 (rule paying child tax credit to person mainly responsible for child Art 14-compatible); In re G (Adoption: Unmarried Couple) [2008] UKHL 38 [2009] AC 173 (bar on adoption by unmarried couples an unjustified bright-line rule); AL (Serbia) v SSHD [2008] UKHL 42 [2008] 1 WLR 1434 (differential approach to indefinite leave to remain of those who entered UK as unaccompanied minors justified); R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 [2009] AC 311 at §56 (unavailability of disability premium upon homelessness justified); R (Clift) v SSHD [2006] UKHL 54 [2007] 1 AC 484 (lack of objective justification for statutory disentitlement to parole board review of longterm prisoners liable to deportation); 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 justified where law and social values were in state of transition); R (Wilkinson) v Commissioners of Inland Revenue [2005] UKHL 30 [2005] 1 WLR 1718 (widow’s bereavement allowance discriminatory); R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29 [2005] 1 WLR 1681 (previous payments of widows pension justified; s.6(2) defence regarding widows’ payments and widowed mothers’ allowance); R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 [2006] 1 AC 173 at §41 (justification from “need for legal certainty and a workable rule”); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 (derogation and detention without trial violating Art 14 (with Art 5) because targeting non-nationals only: unjustified discrimination on nationality grounds); Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 (less favourable treatment of homosexual former partners lacking any rational or fair basis); Bellinger v Bellinger [2003] UKHL 21 [2003] 2 AC 467 (statutory requirement that marriage be between male and female declared incompatible with Art 14 read with Art 8); R (Pretty) v DPP [2001] UKHL 61 [2002] 1 AC 800 (refusal to rule out prosecution for assisted suicide Art 14-compatible).

59.9 A1P1: property-interference. Violations of A1P1 arise where there is an unjustified deprivation of property or control of its use. 59.9.1 A1P1. HRA:ECHR A1P1 (“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”). For the shorthand “A1P1”, see eg In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §44. 59.9.2 A1P1: ‘possession’. R (Bloomsbury Institute Ltd) v Office for Students [2020] EWHC 580 (Admin) at §299 (“marketable goodwill is a possession but expected future revenues are not”), §§317, 325 (refusal of registration not adversely affecting marketable goodwill) (CA is [2020] EWCA Civ 1074); R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 [2009] AC 311 at §34 (non-contributory welfare benefit as an A1P1 “possession”). 59.9.3 Legitimate expectation protected by A1P1. In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §45 (A1P1 protecting “existing possessions” and “claims, in respect of which the applicant can argue that he or she has at least a ‘legitimate expectation’ of obtaining effective enjoyment of a property right”); Times Newspapers Ltd v Flood [2017] UKSC 33 [2017] 1 WLR 1415 at §§47, 52 (legitimate expectation of legal right to recover success fee falling within A1P1). 754

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59.9.4 A1P1: illustrations. R (Granger-Taylor) v High Speed Two (HS2) Ltd [2020] EWHC 1142 (Admin) [2020] ACD 80 (whether HS2-proposed tunnels constituting a violation of A1P1 rights of homeowner); R (Mott) v Environment Agency [2018] UKSC 10 [2018] 1 WLR 1022 (salmon fishing restriction a violation of A1P1); R v M [2017] UKSC 58 [2017] 1 WLR 3006 at §19 (criminal provisions regarding counterfeit goods a proportionate regulated use of goods); In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3 [2015] AC 1016 (Bill retrospectively imposing NHS-costs liability on employers and insurers incompatible with A1P1); R v Harvey [2015] UKSC 73 [2017] AC 105 (VAT inclusion in confiscation order A1P1-incompatible); Coventry v Lawrence [2015] UKSC 50 [2015] 1 WLR 3485 (conditional fee arrangements provisions A1P1-compatible); Sims v Dacorum Borough Council [2014] UKSC 63 [2015] AC 1336 (termination of joint tenancy A1P1compatible); Cusack v Harrow LBC [2013] UKSC 40 [2013] 1 WLR 2022 (uncompensated loss of vehicular access to property A1P1-compatible); R v Waya [2012] UKSC 51 [2013] 1 AC 294 (A1P1 and criminal confiscation orders regime); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 (legislation enabling damages claims A1P1compatible); R (Countryside Alliance) v Attorney General [2007] UKHL 52 [2008] 1 AC 719 (Hunting Act A1P1-compatible); Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 [2007] 1 WLR 1420 (refusal of sex shop licence not violating A1P1); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 (automatic unenforceability of non-compliant consumer credit agreement compatible with A1P1); Marcic v Thames Water Utilities Ltd [2003] UKHL 66 [2004] 2 AC 42 (statutory sewerage remedies A1P1-compatible).

59.10 Other HRA/ECHR rights and provisions. The HRA guarantees protection against violation of other important listed Convention rights. There are also further ECHR provisions which inform issues of HRA-violation, whether because (1) the HRA in terms says so (eg HRA s.1 referring to Articles 16-18) or (2) the fact of the HRA in domesticating Convention rights delivers this (eg Articles 1, 13 and 15). 59.10.1 HRA:ECHR Article 4: freedom from slavery/forced labour/trafficking. HRA:ECHR Art 4 (“1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations”); MS (Pakistan) v SSHD [2020] UKSC 9 [2020] 1 WLR 1373 at §§34-35 (failure effectively to investigate trafficking risk a breach of Art 4); TDT v SSHD [2018] EWCA Civ 1395 [2018] 1 WLR 4922 (Art 4 breach where potential victim of trafficking released from administrative detention without adequate measures to protect from real and imminent risk of re-trafficking); R (K) v SSHD [2018] EWHC 2951 (Admin) [2019] 4 WLR 92 at §37 (Art 4 positive obligation to provide appropriate support and assistance); R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68 [2014] AC 453 at §90 (work condition for state benefit not an Art 4 breach). 59.10.2 HRA:ECHR Article 7: no punishment without law. HRA:ECHR Art 7 (“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations”); R v Docherty [2016] UKSC 62 [2017] 1 WLR 181 at §§29-41 (considering Art 7 in the context of arrangements to repeal provisions on imprisonment for public protection); R (Uttley) v SSHD [2004] UKHL 38 [2004] 1 WLR 2278 (statutory licence provisions post-dating relevant offence Art 7-compatible); R (Khan) v Secretary of State for Justice [2020] EWHC 2084 755

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(Admin) at §105 (statutory increase in custodial term to be served by terrorist offenders not an Art 7 violation). 59.10.3 HRA:ECHR Article 9: freedom of thought, conscience and religion. HRA:ECHR Art 9 (“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”); HRA s.13 (“(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”); R (Haq) v Walsall Metropolitan Borough Council [2019] EWHC 70 (Admin) [2019] PTSR 1192 [2019] ACD 45 (prohibition on raised edgings in lawn cemetery not violating Art 9); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §107 (coroner’s non-prioritisation policy violating Art 9); R (Hussein) v SSHD [2018] EWHC 213 (Admin) [2018] ACD 32 at §66 (immigration detention lock-in regime breaching Art 9 unless and until justification shown); R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15 [2005] 2 AC 246 (statutory prohibition on corporal punishment, preventing disciplinary measures at Christian school administered in the name of biblical observance, a justified interference with Art 9); R (SB) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 [2007] 1 AC 100 (school uniform policy barring jilbab compatible with Art 9 because other schools available and justified in any event); R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323 (Art 9 capable of being engaged by immigration removal to country where flagrant denial of religious freedoms). 59.10.4 HRA:ECHR Article 11: Freedom of assembly and association. HRA:ECHR Art 11 (“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”); DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301 at §61 (Art 11 not requiring illegal unnotified parade to be facilitated by police); R (Independent Workers Union of Great Britain) v Central Arbitration Committee [2018] EWHC 3342 (Admin) [2019] ACD 27 (decision not to recognise trade union for collective bargaining purposes compatible with Art 11); R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55 [2007] 2 AC 105 (preventing attendance at anti-war demonstration violating Art 11); R (Countryside Alliance) v Attorney General [2007] UKHL 52 [2008] 1 AC 719 (Art 11 not engaged by hunting ban). 59.10.5 HRA:ECHR Article 12: right to marry. See HRA:ECHR Art 12 (“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”); R (Baiai) v SSHD [2008] UKHL 53 [2009] AC 287 (certified approval of all immigration control marriages violating Art 12). 59.10.6 A2P1: Right to education. See HRA:ECHR Article 2 Protocol 1 (“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”); HRA s.15 (designated reservations), Schedule 3 Part II (UK reservation of 20 March 1952: “declar[ing] that, in view of certain provisions of the Education Acts in the United Kingdom, the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only so far 756

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as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure”), s.17 (periodic review of designated reservations); R (E) v Islington LBC [2017] EWHC 1440 (Admin) [2018] PTSR 349 at §86 (local authority’s actions denied the claimant the essence of her right to education for a year, in violation of A2P1); R (Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin) [2016] PTSR 405 (new syllabus content violating A2P1); In re Application for Judicial Review by JR17 [2010] UKSC 27 [2010] HRLR 27 (pupil suspension not a violation of A2P1); A v Essex County Council [2010] UKSC 33 [2011] 1 AC 280 (delay in securing new placement not a violation of A2P1); R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15 [2005] 2 AC 246 at §36 (education under A2P1 “wide enough to include the manner in which discipline is maintained in a school”); A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14 [2006] 2 AC 363 (exclusion from school not a violation, A2P1 being concerned with non-discriminatory access to state education, not attendance at a particular school); R (SB) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 [2007] 1 AC 100 (school uniform policy barring jilbab compatible with A2P1); OA v Secretary of State for Education [2020] EWHC 276 (Admin) (restriction on student loan incompatible with Art 14 read with A2P1). 59.10.7 A3P1: Right to free elections. See HRA:ECHR Art 3 Protocol 1 (“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”); Moohan v Lord Advocate [2014] UKSC 67 [2015] AC 901 (ban on prisoners voting in Scottish independence referendum A3P1-compatible); R (Chester) v Secretary of State for Justice [2013] UKSC 63 [2014] AC 271 (ban on prisoners voting in elections A3P1-incompatible); R (Barclay) v Lord Chancellor [2009] UKSC 9 [2010] 1 AC 464 (legislative reforms for Sark A3P1-compatible). 59.10.8 Protocol VI and the death penalty (Articles 1-2 Protocol VI). See Protocol VI Art 1 (“The death penalty shall be abolished. No one shall be condemned to such penalty or executed”), Art 2 (“A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law”). 59.10.9 Additional restrictions: HRA:ECHR Articles 16-18. See HRA s.1(1) (meaning of “Convention rights”); HRA:ECHR Art 16 (“Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens”); Art 17 (“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention”); Art 18 (“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed”). 59.10.10 ECHR Article 1 (not in HRA): territoriality. {9.1.18} (issues of HRA territoriality). 59.10.11 ECHR Article 13 (not in HRA): the right to an effective remedy. See ECHR Art 13 (“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”); TN (Afghanistan) v SSHD [2015] UKSC 40 [2015] 1 WLR 3083 at §31 (describing the “important general principle” that “judicial review is capable of satisfying the requirement of providing an effective remedy within the meaning of article 13”); and see CA [2013] EWCA Civ 1609 [2014] 1 WLR 2095 at §15 (Maurice Kay LJ: “it was the trust in judicial review as an effective remedy which resulted in the exclusion of article 13 from the provisions which were incorporated into domestic law by the Human Rights Act 1998”); R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55 [2005] 2 AC 1 at §42 (HRA means 757

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ECHR is “incorporated into our law without article 13”); R (Regentford Ltd) v Canterbury Crown Court [2001] HRLR 362 (“Article 13 has not been incorporated into English law, but not to provide a remedy would seem to run the risk of rendering the United Kingdom in breach of its Treaty obligations, something which the English courts should strive to avoid”); R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240 [2002] QB 198 at §53 (“important that the courts, as part of the State, should satisfy themselves so far as possible that the common law affords adequate control, in conformity with [ECHR] article 13”); R v SSHD, ex p Turgut [2001] 1 All ER 719 (adopting a rigorous reasonableness test having regard to Art 13); Attorney General’s Reference No 2 of 2001 [2003] UKHL 68 [2004] 2 AC 72 at §164 (Lord Rodger (dissenting in the result): “Parliament did not incorporate article 13 into our domestic law: it assumed that under the Human Rights Act 1998 courts would have at their disposal all the necessary remedies for dealing with violations of the Convention. Experience suggests this is indeed so”); In re S (Care Order: Implementation of Care Plan) [2002] UKHL 10 [2002] 2 AC 291 at §59 (failure to provide an effective remedy for breach of Art 8 not itself a breach of Art 8), §60 (Art 13 not a Convention right); {32.4.16} (whether anxious scrutiny would satisfy Art 13); Webster v Lord Chancellor [2015] EWCA Civ 742 [2016] QB 676 at §39 (Article 13 not capable of being invoked to find HRA s.9 incompatible with the ECHR). 59.10.12 HRA s.14/ECHR Article 15: derogation. HRA s.14 (derogations); ECHR Art 15 (“(1) 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. (2) No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. (3) Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed”); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 (Art 15 relevant in testing, and ultimately quashing, Derogation Order permitting detention without trial of non-nationals, as not being “strictly necessary”), §10 (Art 15 not scheduled to the HRA but dealt with by HRA s.14), cf §146 (Lord Scott, describing Art 15 as not part of domestic law). 59.10.13 HRA s.8/ECHR Article 41 (not in HRA): just satisfaction. R (Sturnham) v Parole Board [2013] UKSC 23 [2013] 2 AC 254 at §25 (Lord Reed, explaining that: “Article 41 is not one of the articles scheduled to the 1998 Act, but it is reflected in section 8 of the Act”); {9.5} (HRA just satisfaction).

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P60 Constitutionality. A public authority must not exercise power to abrogate a constitutional right or value, unless such action is held constitutional based on clear statutory authority. 60.1 Constitutionality

60.1 Constitutionality. Within the case law are these truths. (1) Certain values and rights have constitutional status. (2) Under the rule of law, the judicial review Court has the constitutional role of safeguarding against public authority power being exercised so as to abrogate such a value or right. (3) An abrogation of that nature could be lawful only if found by the Court to be legitimate, applying the constitutional principle of legislative supremacy, based on clear statutory authority. (4) Principles of constitutionality are being applied in this context. From these truths emerge two observations. (i) Some judicial review claims can properly be seen, straightforwardly, as judicial review for ‘unconstitutional public authority action’: there is unlawfulness because there is abrogation of a constitutional right or value. (ii) The ‘principle of legality’, which helped bring public law to this position, can be seen as bringing with it (if not within it) a ‘principle of constitutionality’. 60.1.1 The Courts’ responsibility to make constitutional principles and values effective. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §39 (Lady Hale and Lord Reed: “Although the United Kingdom does not have a single document entitled ‘The Constitution’, it nevertheless possesses a constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their 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”), §40 (“The legal principles of the constitution are not confined to statutory rules, but include constitutional principles developed by the common law”). 60.1.2 Judicial review of statutory power based on effect on constitutional principle/ value. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §49 (Lady Hale and Lord Reed, describing: “how the courts have dealt with situations where the exercise of a power conferred by statute … was liable to affect the operation of a constitutional principle. The approach which they have adopted has concentrated on the effect of the exercise of the power upon the operation of the relevant constitutional principle. Unless the terms of the statute indicate a contrary intention, the courts have set a limit to the lawful exercise of the power by holding that the extent to which the measure impedes or frustrates the operation of the relevant principle must have a reasonable justification”). 60.1.3 Judicial review of prerogative power based on effect on constitutional principle/ value. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §49 (“A prerogative power is … different from a statutory power: since it is not derived from statute, its limitations cannot be derived from a process of statutory interpretation. However, a prerogative power is only effective to the extent that it is recognised by the common law. … A prerogative power is therefore limited by statute and the common law, including, in the present context, the constitutional principles with which it would otherwise conflict”); {60.1.8} (prerogative/ common law power is limited by constitutional principles); {35.1.10} (POL (or its twin) applicable to non-statutory public powers: beyond statutory interpretation). 60.1.4 Judicial review for unjustified effect on constitutional principle/value. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §50 (“the relevant limit upon the power

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to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course”), §51(“The extent to which prorogation frustrates or prevents Parliament’s ability to perform its legislative functions and its supervision of the executive is a question of fact which presents no greater difficulty than many other questions of fact which are routinely decided by the courts. The court then has to decide whether the Prime Minister’s explanation for advising that Parliament should be prorogued is a reasonable justification for a prorogation having those effects”). 60.1.5 Judicial review courts ‘apply principles of constitutionality’. R v SSHD, ex p Simms [2000] 2 AC 115, 131E-G (Lord Hoffmann, explaining that by virtue of the principle of legality “the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document”), cited in J v Welsh Ministers [2018] UKSC 66 [2019] 2 WLR 82 at §24 (Lady Hale); R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787 at §56 (Lord Neuberger); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §151 (Lord Reed); Tariq v Home Office [2011] UKSC 35 [2012] 1 AC 452 at §108 (Lord Kerr); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §111 (Lord Phillips); {7.2} (the rule of law); {7.3} (separation of powers); {7.4} (legislative supremacy); {1.3.5} (cardinal principle: Courts secure the scope of judicial review required by the rule of law); {P35} (principle of legality); {35.1.2} (POL is a principle of constitutionality). 60.1.6 Constitutional fundamentals. {P7} (constitutional fundamentals); {7.5} (access to justice); {7.6} (constitutional/common law rights). 60.1.7 The principle of legality articulated in terms of constitutional principle. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §49 (Lady Hale and Lord Reed, describing cases in which “the exercise of a power conferred by statute … was liable to affect the operation of a constitutional principle” and where the courts’ “approach … has concentrated on the effect of the exercise of the power upon the operation of the relevant constitutional principle”, by the application of this (the principle of legality): “Unless the terms of the statute indicate a contrary intention, the courts have set a limit to the lawful exercise of the power by holding that the extent to which the measure impedes or frustrates the operation of the relevant principle must have a reasonable justification”); {P35} principle of legality); {35.1.2} (POL is a principle of constitutionality). 60.1.8 Prerogative/common law power is limited by constitutional principles. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §30 (addressing “a prerogative power”, namely “a power recognised by the common law and exercised by the Crown”), §49 (“a prerogative power is only effective to the extent that it is recognised by the common law. … A prerogative power is therefore limited by statute and the common law, including … the constitutional principles with which it would otherwise conflict”); R (Ewing) v Cardiff and Newport Crown Court [2016] EWHC 183 (Admin) (no applicable primary or secondary legislation; decision breaching the open justice principle {60.1.12}). 60.1.9 Primacy of the common law. R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 at §57 (Lord Reed: “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. … Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate”); {7.1.2} (start with the common law/domestic law). 60.1.10 Judicial review for unconstitutionality: a paradigm case (UNISON). R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 (judicial review of statutory instrument 760

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made in the exercise of statutory power), §65 (engaging “the constitutional right of access to justice”), §66 (“The constitutional right of access to the courts”), §76 (“the constitutional right of unimpeded access to the courts”), §98 (concluding that the impugned statutory instrument “effectively prevents access to justice, and is therefore unlawful”); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §49 (describing UNISON as a case where the court adopted an “approach which … concentrated on the effect of the exercise of the power upon the operation of the relevant constitutional principle” and “set a limit to the lawful exercise of the power by holding that the extent to which the measure impedes or frustrates the operation of the relevant principle must have a reasonable justification”). 60.1.11 Judicial review for unconstitutionality: a paradigm case (Miller). R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 (judicial review of action in exercise of prerogative power), §40 (applying “constitutional principles developed by the common law”), §50 (asking whether the decision “has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive”), §§55-56 (holding that “the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account”), §58 (asking “whether there is a reasonable justification for taking action which had such an extreme effect upon the fundamentals of our democracy”), §61 (finding no good reason). 60.1.12 Judicial review because action abrogated a constitutional right/value: illustrations. Raymond v Honey [1983] 1 AC 1 (HL) at 10E (Lord Wilberforce, identifying the “constitutional right to have … legal rights and obligations ascertained and enforced by courts of law”), 13C (the impugned action of the prison governor in stopping the claimant prisoner’s application to the court was unlawful because it served “to deny … the … right of access to the court”), 13A (the statutory power was “quite insufficient to authorise hindrance or interference with so basic a right”, and any regulations which purported to do so would themselves be unlawful), applied in R v SSHD, ex p Anderson [1984] QB 778 (DC) at 792B-794C, especially 793E (Robert Goff LJ and Mann J: “unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts forms an inseparable part of the right of access to the courts”), 793G (rule requiring prisoner to raise a complaint internally as a precondition to consulting a solicitor unlawful as it “constitutes an impediment to the right of access to a solicitor”), 794A (and “an impediment to his right of access to the civil court … an inmate’s right of access to a solicitor for the purposes of obtaining advice and assistance with a view to instituting proceedings should be unimpeded”); R v Lord Chancellor, ex p Witham [1998] QB 575 (DC) at 581E (Laws J, explaining that “a constitutional right” has the consequence that “the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate”), 585G (“the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament”; “this is the meaning of the constitutional right”), 586E-F (here, statutory instrument was unlawful because having “the effect … to bar absolutely many persons from seeking justice from the courts”), 586F-G (for which there was no statutory authority, because the “constitutional right … can only be denied by … legislation which specifically – in effect by express provision – permits the executive to turn people away from the court door. That has not been done in this case”); R v SSHD, ex p Saleem [2001] 1 WLR 443 (CA, holding that a rule which unjustifiably interfered with the right of appeal was unlawful) at 449E (Roch LJ, explaining that in the case of a “fundamental or basic right akin to the right of unimpeded access to a court, then there is this consequence, that infringement of such a right must be either expressly authorised by Act of Parliament or arise by necessary implication from an Act of Parliament”), 456E (Hale LJ, confirming by reference to Witham that: “a constitutional right … could be abrogated only by a specific statutory provision in primary legislation or by delegated legislation expressly authorised by statute to do so”); R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 (policy unlawful because unjustified interference with legal professional privilege); A v SSHD [2005] UKHL 71 [2006] 2 AC 221 (admitting of evidence obtained by torture abrogating a constitutional 761

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principle) at §§11-12 (Lord Bingham, explaining that the common law prohibition on torture is “a constitutional principle”), §51 (“The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court”), §52 (concluding that: “The principles of the common law, standing alone, … compel the exclusion of third party torture evidence”); R (Medical Justice) v SSHD [2011] EWCA Civ 1710 at §5 (holding an immigration removal policy “unlawful because it abrogated the constitutional right of access to justice”); R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 [2013] QB 618 (magistrates’ court abrogated the open justice principle) at §69 (“The open justice principle is a constitutional principle”); R (Ewing) v Cardiff and Newport Crown Court [2016] EWHC 183 (Admin) at §28 (Burnett LJ, explaining that judicial review granted because the defendant court “denied the claimant the right to make notes of the proceedings in open court in breach of the common law principle of open justice”), §16 (open justice principle at common law, as “central to the rule of law”), §§17-18 (no applicable primary or secondary legislation in this case); R (Bruton) v Governor of Swaleside Prison [2017] EWHC 704 (Admin) [2017] ACD 69 at §47 (Judge McKenna, under the heading: “Failure at common law to provide access to justice”, holding as follows: “The right of a prisoner to have unimpeded access to his lawyer is part of the constitutional right to access to justice safeguarded by the common law and that right has clearly been breached in this case”). 60.1.13 Judicial review of primary legislation. {12.3} (judicial review of primary legislation at common law). 60.1.14 Direct constitutional review of primary legislation: open questions. {12.3.5}; {7.4.5} (legislative supremacy is a constitutional principle developed by the common law). 60.1.15 Judicial review’s constitutional inalienability. {1.3}

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P61 Procedural unfairness.145 A public authority must adopt a fair decision-making procedure, giving those affected an informed prior chance to have their say. 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

61.1 Procedural fairness.146 The common law imposes minimum standards of procedural fairness (or ‘due process’). These are objective, hard-edged standards delineated by the Courts. The ‘right to be heard’ was one of the twin pillars of natural justice. It has become a general principle of procedural fairness applicable, contextually, to all public authorities. Specific procedural duties also arise from honouring procedural legitimate expectations which the authority has engendered. Procedural fairness (and its twin natural justice pillar: the rule against bias) stand alongside the Article 6 process rights guaranteed by the Human Rights Act 1998. 61.1.1 The rule of law and minimum standards of fairness. {54.1.1} (minimum standards of substantive and procedural fairness: the rule of law); {1.2.16} (the rule of law and basic fairness/due process); {7.7} (basic fairness/natural justice). 61.1.2 Procedural fairness as objective, hard-edged standards. {16.5} (procedural fairness as hard-edged review). 61.1.3 Fairness in a substantive sense. {P54} (substantive unfairness); {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). 61.1.4 Rationales for procedural fairness. R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §82 (Singh LJ, “the underlying rationales for why fairness is important … include that ‘one of the virtues of procedurally fair decision-making is that it is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested’. … Another important rationale is the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. … [Also], fairness is conducive to the rule of law”), citing R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 at §§67-68, 71; R (Karagul) v SSHD [2019] EWHC 3208 (Admin) at §108; R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §97 (Lord Reed, referring to “the instrumental value of enabling persons to participate in decision-making when they may be able to contribute relevant information or to test other information before the decision-maker, and the ethical value of allowing persons to participate in decision-making which concerns them and is liable to have a significant effect on their rights or interests, where they may have something to say which is relevant to the decision to be taken”).

145The

equivalent section in a previous edition was relied on in Bamboo Marketing Ltd v CCE [2012] TTHC 9 at §45 (Hon Pemberton J). 146The equivalent paragraph in a previous edition was relied on in Abrahaem v GMC [2008] EWHC 183 (Admin) at §41 (Blake J); BT Plc v Ofcom [2011] CAT 5 at §206(1); Barnett v Commissioner of Police [2012] TTHC 82 at §12 (Dean-Armorer J).

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61.1.5 Twin pillars of natural justice: fair hearing and absence of bias. R (Sergeant) v First Minister of Wales [2019] EWHC 739 (Admin) [2019] 4 WLR 64 at §94 (Haddon-Cave LJ and Swift J, describing: “the principles audi alteram partem (the right to be heard or to have a fair hearing) and nemo iudex in causa sua (no-one should be judge in their own case, or the rule against bias)”); R (Talpada) v SSHD [2018] EWCA Civ 841 at §57 (“two limbs” of “natural justice”); Kanda v Government of Malaya [1962] AC 322, 337 (“two rules” as “the essential characteristics of … natural justice” and “the twin pillars supporting it”); O’Reilly v Mackman [1983] 2 AC 237, 279F-G (Lord Diplock: “the two fundamental rights accorded to him by the rules of natural justice or fairness, viz. to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1164H (“the rules of natural justice”); {P63} (bias). 61.1.6 The duty to act fairly. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 414G-H (Lord Roskill, referring to: “what are often called ‘principles of natural justice’” as being a “phrase … no doubt hallowed by time and much judicial repetition, but it is a phrase often widely misunderstood and therefore as often misused. That phrase perhaps might now be allowed to find a permanent resting-place and be better replaced by speaking of a duty to act fairly”), 399A-B (Lord Fraser, speaking of the “obligation to act fairly” as “sometimes referred to as an obligation to obey the rules of natural justice, but that is a less appropriate description, at least when applied, as in the present case, to a power which is executive and not judicial”); R v Oxford Regional Mental Health Review Tribunal, ex p SSHD [1988] AC 120, 126H (Lord Bridge, referring to “[a] decision … made in breach of the rules of natural justice, which in a word means unfairly”); Cheall v Association of Professional Executive Clerical & Computer Staff [1983] 2 AC 180, 190C-D (Lord Diplock, agreeing with the description of natural justice as “fair play in action”). 61.1.7 ‘Due process’. Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §237 (Lord Carnwath, referring to the Charity Commission as being “subject to the ordinary public law principles of fairness and due process”); R (FNM) v DPP [2020] EWHC 870 (Admin) [2020] 2 Cr App R 17 at §51 (Bean LJ and Carr J, referring to a “simple failure of due process” in making decision reviewing decision not to prosecute, without awaiting and considering complainant’s representations, as indicated in email communication); R (Hackney LBC) v Secretary of State for Housing and Local Government [2019] EWHC 1438 (Admin) at §54 (referring to “due process” in making a direction); R (Murungaru) v SSHD [2008] EWCA Civ 1015 at §§26, 39 (referring to “a common law due process claim”); Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1220, 1230D-E (Lord Mustill, identifying “what in the vocabulary of judicial review would be called a breach of natural justice … a material irregularity in the conduct of the committal; or, if one prefers the transatlantic terminology, a want of due process”); R v SSHD, ex p Hindley [2000] 1 QB 152 (CA), 163B-164H (Lord Woolf MR, referring to the doctrine of “due process”, having both procedural and substantive aspects); R (Ramda) v SSHD [2002] EWHC 1278 (Admin) at §8 (Sedley LJ, using the phrase “due process” to describe requirements of procedural fairness); Higgs v Minister of National Security [2000] 2 AC 228, 246A (referring to “the ordinary common law concept of due process” and its implication into the Constitution of the Bahamas as being “in accordance with law and general principles of fairness”); R v London Borough of Camden, ex p Paddock [1995] COD 130 (transcript) (referring to “due process” and material irregularity); R v SSHD, ex p Moon (1996) 8 Admin LR 477, 485C (Sedley J, referring to “the safeguards of due process”); R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 324f (Sedley J: “Since Ridge v Baldwin, although not without occasional deviations, public law has returned to the broad highway of due process across the full range of justiciable decision-making”); Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381G (courts’ duty to give reasons “a function of due process, and therefore of justice”); cf R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58 [2016] 1 WLR 4550 at §67 (public sector equality duty as “a form of due process”); De Smith, Judicial Review of Administrative Action (1st edition, 1959) at 101 (“In English law the rules of natural justice 764

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perform a function … similar to the concept of procedural due process as it exists in the United States, a concept in which they lie embedded”). 61.1.8 ‘Material irregularity’. Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1220, 1230D-E (Lord Mustill, identifying “a material irregularity”); R (Lock) v Leicester City Council [2012] EWHC 2058 (Admin) at §63 (“no material irregularity”); R (B) v Carlisle Crown Court [2009] EWHC 3540 (Admin) at §18 (asking whether there was “a material irregularity in the procedure adopted in the [Crown] court hearing the appeal”), §25 (finding that such an irregularity here); R (Bridgerow Ltd) v Cheshire West and Chester Borough Council [2014] EWHC 1187 (Admin) [2015] PTSR 91 at §42 (“serious procedural irregularity” where full committee arrogated to itself a decision-making function delegated to a panel of three); R (Longato) v Camberwell Green Magistrates’ Court [2009] EWHC 691 (Admin) at §16 (“irregular” to extend closure order where no summons had been served on person affected, resulting in “real injustice”); R (Broxbourne Borough Council) v North & East Hertfordshire Magistrates’ Court [2009] EWHC 695 (Admin) (impermissible for chairman of magistrates to visit the site without the other justices), §63 (“entirely irregular”); R v Number 8 Area Committee of the Legal Aid Board, ex p Megarry [1994] PIQR 476 (“a procedural irregularity”); De Four v The State [1999] 1 WLR 1731, 1737H (trial judge’s 30-minute time limit given to jury a material irregularity); {4.2.10} (procedural unfairness/ procedural flaw and prejudice). 61.1.9 Natural justice: traditional link to ‘judicial’/‘quasi-judicial’ functions. {30.1.7} (‘judicial’/‘administrative’); {30.1.8} (‘judicial’/‘administrative’ and procedural fairness/Art 6). 61.1.10 Natural justice: traditional link to decisions affecting rights/interests. R v Secretary of State for the Environment, ex p Hammersmith & Fulham LBC [1991] 1 AC 521, 598D-G (Lord Bridge, referring to the existence of “a person whose ‘rights’ in the broadest sense, are liable to be detrimentally affected by any action taken by the Secretary of State” as being “the necessary assumption on which to base an argument … that the court must supplement the procedural requirements which the Act itself stipulates by implying additional requirements said to be necessary to ensure that the principles of natural justice are observed”); AttorneyGeneral v Ryan [1980] AC 718, 727D (“the Minister was a person having legal authority to determine a question affecting the rights of individuals. This being so it is a necessary implication that he is required to observe the principles of natural justice when exercising that authority”); Mahon v Air New Zealand Ltd [1984] AC 808, 820H (“adversely affected”); Pearlberg v Varty [1972] 1 WLR 534, 546B-C (Viscount Dilhorne: “judicial determination affecting a person’s rights and liabilities”); Public Disclosure Commission v Isaacs [1988] 1 WLR 1043 (decision to reject claimant’s complaint not adverse to him, so no duty to allow opportunity to comment on material being taken into account). 61.1.11 Natural justice: traditional emphasis on person ‘condemned’. General Medical Council v Spackman [1943] AC 627, 636 (Viscount Simon LC: “the accused should not be condemned without being first given a fair chance of exculpation”); O’Reilly v Mackman [1983] 2 AC 237, 276B-C (Lord Diplock: “the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any civilised legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement”); Furnell v Whangarei High Schools Board [1973] AC 660, 682D (Lord Morris: “One of the principles of natural justice is that a man should not be condemned unheard. But the sub-committee do not condemn. Nor do they criticise”); Ridge v Baldwin [1964] AC 40, 113-114 (Lord Morris: “It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet. … [H]ere is something which is basic to our system: the importance of upholding it far transcends the significance of any particular case”); Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §29 (Lord Sumption: “The duty to give advance notice 765

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and an opportunity to be heard to a person against whom a draconian statutory power is to be exercised is one of the oldest principles of what would now be called public law”). 61.1.12 Natural justice: the McInnes classification (forfeiture/application/expectation). McInnes v Onslow Fane [1978] 1 WLR 1520, 1529A-C (Sir Robert Megarry V-C, distinguishing between three situations: “First, there are what may be called the forfeiture cases. In these, there is a decision which takes away some existing right or position, as where a member of an organisation is expelled or a licence is revoked. Second, at the other extreme there are what may be called the application cases. These are cases where the decision merely refuses to grant the applicant the right or position that he seeks, such as membership of the organisation, or a licence to do certain acts. Third, there is an intermediate category, which may be called the expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted. This head includes cases where an existing licence-holder applies for a renewal of his licence, or a person already elected or appointed to some position seeks confirmation from some confirming authority”); R (Abbey Mine Ltd) v Coal Authority [2008] EWCA Civ 353 at §31 (McInnes categorisations merely a pointer); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2001] EWHC Admin 1174 at §§67-68 (fairness applying even though an “application” case under the McInnes classification) (CA is at [2002] EWCA Civ 1409); Naidike v Attorney-General of Trinidad and Tobago [2004] UKPC 49 [2005] 1 AC 538 at §24 (“between on the one extreme cases of forfeiture and on the other mere application cases there lies an intermediate category of cases where the applicant seeks the renewal or confirmation of some benefit … which properly ought not to be denied him without good reason and without his having a chance to satisfy whatever concerns the decision maker may have”); Manning v Ramjohn [2011] UKPC 20 at §46 (“clearly unfair” to veto an application without giving a reason), §48 (McInnes classification “of little assistance in the present context”); R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) [2018] PTSR 26 at §63 (duty to act fairly applicable although claimant not being deprived of some benefit or advantage); R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §26 (Lord Wilson, adopting the proposition, in the context of consultation, that “the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit”). 61.1.13 Systemic unfairness/unfair system. {32.5.2} 61.1.14 Fairness as a trigger for consultation. R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871 at §77 (Sharp LJ and McGowan J: describing “orthodox grounds” for a consultation duty to arise as including “where a failure to consult will lead to conspicuous unfairness, amounting to an abuse of power”); R (Dudley Metropolitan Borough Council) v Secretary of State for Communities and Local Government [2012] EWHC 1729 (Admin) at §47 (consultation required by duty of fairness), §65 (small identifiable class affected by application of change of policy, in circumstances where legitimate expectation of advantage continuing); R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074 at §74 (defendant should have consulted education providers), §69 (applying an unfairness test: “whether the process was so unfair as to be unlawful”). 61.1.15 PLE: procedural legitimate expectation. {P41} (legitimate expectation); {41.2} (anatomy of a legitimate expectation). 61.1.16 PLE: the right to have the case considered under current policy criteria. R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at §72 (Hickinbottom LJ: “where there is a policy with published criteria against which the conferring of a potential benefit will be assessed, an individual is entitled to be assessed against the criteria which were in place at the time of the assessment, with a reasonable expectation that, if he satisfies them, he will obtain the benefit”), §74; R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 at §73 (individual entitled “to have his individual circumstances considered by the decision-maker in the light of the policy then in force”); In re Findlay [1985] AC 318, 766

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338E-F (prisoner entitled to have “his case … examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion”); {50.4.2} (right to individualised examination under a lawful, current policy); {48.1.12} (unlawfulness: application of an undisclosed policy). 61.1.17 PLE: whether promise or practice (illustrations). Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §68 (“unequivocal undertaking to hold a public inquiry”), §63 (being “a policy statement about procedure”), §157; Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 638G (“a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty”); R (Sergeant) v First Minister of Wales [2019] EWHC 739 (Admin) [2019] 4 WLR 64 at §91 (clear and unambiguous representation as to independent setting of terms for an inquiry a procedural legitimate expectation); R (FNM) v DPP [2020] EWHC 870 (Admin) [2020] 2 Cr App R 17 at §§50-51 (email communicated that representations would be awaited and considered); R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, at §57(b) (“the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it … in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires”), §62 (court decides fairness); R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 at §50 (defendant having a duty to consult where “without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so”); State of Mauritius v CT Power Ltd [2019] UKPC 27 at §60 (no promise or assurance given here); {41.2.2} (two sources of a legitimate expectation: promise or practice). 61.1.18 PLE of consultation: promise/practice regarding consultation. R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871 at §77 (Sharp LJ and McGowan J: describing “orthodox grounds” for a consultation duty to arise as including “where there has been a promise to consult [or] an established practice of consultation”); R (Buckingham) v NHS Corby Clinical Commissioning Group [2018] EWHC 2080 (Admin) [2018] ACD 111 at §41 (legitimate expectation of public consultation arising from assurances); R (FDA) v Minister for the Cabinet Office [2018] EWHC 2746 (Admin) at §75 (“The common law is slow to require a public body to engage in consultation where there has been no assurance either of consultation or that a policy to consult will continue”), §84 (no promise of consultation); R v Save Guana Cay Reef Association [2009] UKPC 44 at §32 (“the public had a legitimate expectation of consultation arising out of official statements recognising the need to take account of the residents’ concerns and wishes”); R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) [2007] Env LR 623 at §§48, 54, 120 (promise of full public consultation); {62.2.5} (consultation trigger: legitimate expectation/fairness). 61.1.19 PLE of consultation: without a promise/practice regarding consultation. R (Luton Borough Council) v Secretary of State for Education [2011] EWHC 217 (Admin) [2011] ELR 222 at §§93-97 (procedural legitimate expectation of consultation in the circumstances, notwithstanding no promise or practice); R v Rochdale Metropolitan Borough Council, ex p Schemet [1994] ELR 89, 106H-108E (previous practice of providing free transport giving rise to legitimate expectation of consultation prior to any change in policy); {62.2.2} (triggers for duty of consultation); {62.2.5} (consultation trigger: legitimate expectation/fairness). 61.1.20 Departure from a PLE: rationality/proportionality/fairness test? R (Sergeant) v First Minister of Wales [2019] EWHC 739 (Admin) [2019] 4 WLR 64 at §91 (procedural legitimate expectation), §§79-80 (leaving open whether rationality or proportionality test); R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, at §57(b) (asking whether “there is an overriding reason to resile from it … in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires”), §62 (court decides fairness); R v Secretary of State for Education 767

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and Employment, ex p Amraf Training Plc [2001] ELR 125 at §52 (Elias J: “the doctrine [of legitimate expectation] will only in very exceptional circumstances entitle a public authority to override procedural as opposed to substantive rights”). 61.1.21 PLE in action: other illustrations. Naidike v Attorney-General of Trinidad and Tobago [2004] UKPC 49 [2005] 1 AC 538 at §24 (legitimate expectation that work permit renewal not refused without opportunity to address concerns); R (Cornwall Waste Forum St Dennis Branch) v Secretary of State for Communities and Local Government [2012] EWCA Civ 379 at §§35, 37 (clear expectation that inspector would conduct requisite assessment, but change of circumstances); R (Vieira) v Camden LBC [2012] EWHC 287 (Admin) at §§77, 83, 92 (planning permission quashed for breaches of legitimate expectations (a) to send revised drawings to objecting neighbour claimants (b) to make officers’ report available online (c) to refer the matter back to the briefing panel); R (K and AC Jackson & Son) v Department for the Environment Food and Rural Affairs [2011] EWHC 956 (Admin) at §67 (legitimate expectation arising from instruction not to mix animal samples); R (Majed) v Camden LBC [2009] EWCA Civ 1029 at §§14-15 (legitimate expectation of notification of neighbour’s planning application); R (Actis SA) v Secretary of State for Communities & Local Government [2007] EWHC 2417 (Admin) at §§136, 155 (legitimate expectation of consultation before changes in technical regulation); R (Montpeliers & Trevors Association) v City of Westminster [2005] EWHC 16 (Admin) [2006] LGR 304 at §44 (breach of legitimate expectation of consultation). 61.1.22 Procedural fairness: whether need for prejudice. {4.2.10} (procedural unfairness/ procedural flaw and prejudice); {61.1.8} (‘material irregularity’); {61.4.4} (whether procedural ultra vires needs prejudice); Boddington v British Transport Police [1999] 2 AC 143, 174B-D (Lord Steyn, rejecting the proposition that in a case of procedural invalidity of a bylaw a claimant must “show that he has suffered substantial prejudice”); General Medical Council v Spackman [1943] AC 627, 644-645 (“If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision”); Ridge v Baldwin [1964] AC 40, 128 (Lord Hodson: “I do not find that the answer put by counsel for the watch committee to your Lordships that the case was as plain as a pike-staff is an answer to the demand for natural justice”); In re Evans [1994] 1 WLR 1006, 1013D (“The accused is given an opportunity to make representations by himself or his counsel because no order for committal should be made against a person who has not been allowed to object and to state his reasons for objection, good or bad, relevant or irrelevant”); Kanda v Government of Malaya [1962] AC 322, 337 (Lord Denning: “It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1161H (Lord Hailsham: “might … have influenced the decision”); R v Leicester City Justices, ex p Barrow [1991] 2 QB 260, 290D-E (Lord Donaldson MR: “Any unfairness, whether apparent or actual and however inadvertent, strikes at the roots of justice. I cannot be sure that the [claimants] were not prejudiced and accordingly I have no doubt that the justices’ order should be quashed”); Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1595B (need “something of substance which has been lost by the failure”); R v London Borough of Camden, ex p Paddock [1995] COD 130 (transcript) (in certain cases of formal procedure “formality itself is a matter of substance”, but “beyond this class there must at least be a general, though rebuttable, presumption that departures from fair procedure matter”). 61.1.23 Whether procedural unfairness ‘cured’. {36.4} (whether action/avenue curative of public law wrong). 61.1.24 Blameless unfairness/objective unfairness. R (Harrison) v Birmingham Magistrates’ Court [2011] EWCA Civ 332 at §§44, 54 (objectively unfair for forfeiture order to be made without claimant having received notice), §61 (“the jurisdiction which is here invoked is 768

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exercisable even if the tribunal has behaved with complete propriety and even if there has been no misconduct or misbehaviour on the part of the prosecutor or complainant”); R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 345C-D (Lord Slynn: “what happened in these proceedings was a breach of the rules of natural justice and constituted unfairness. It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness”); R (Marsh) v Lincoln District Magistrates Court [2003] EWHC 956 (Admin) at §45 (applying Lord Slynn’s “simple statement of principle” in A); E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 at §63 (describing A as a case which “turned, not on issues of fault or lack of fault on either side; it was sufficient that ‘objectively’ there was unfairness”), §65 (“fault” was “not essential to the reasoning”); R (Maqsood) v Special Adjudicator [2002] Imm AR 268 (decision of immigration appellate authorities could be unfair notwithstanding lack of fault by the decision-maker); Khan v SSHD [1987] Imm AR 543, 555 (Bingham LJ: “If a procedural mishap occurs as a result of a misunderstanding, confusion, failure of communication, or perhaps even inefficiency, and the result is to deny justice to the applicant, I should be very sorry to hold that the remedy of judicial review was not available”), applied in R (Ganidagli) v SSHD [2001] EWHC Admin 70 at §36; R (Tataw) v Immigration Appeal Tribunal [2003] EWCA Civ 925 [2003] INLR 585 (justice requiring IAT decision to be quashed where erroneously, albeit blamelessly, treated asylum appeal as out of time); R (Ford) v Leasehold Valuation Tribunal [2005] EWHC 503 (Admin) at §§45-46 (injustice where full material not before the tribunal); {14.2.4} (nothing personal: unfairness); {P65} (external vitiation); R v SSHD, ex p Al-Mehdawi [1990] 1 AC 876 (HL treating factual unfairness as not sufficing because attributable to the fault of claimant’s legal advisers); Pomiechowski v District Court of Legnica [2012] UKSC 20 [2012] 1 WLR 1604 at §36 (Lord Mance, explaining that Al-Mehdawi not a universal principle); FP (Iran) v SSHD [2007] EWCA Civ 13 [2007] Imm AR 450 at §46 (distinguishing Al-Mehdawi); Haile v Immigration Appeal Tribunal [2001] EWCA Civ 663 [2002] Imm AR 170 at §26 (Simon Brown LJ: “I am [not] persuaded that … Al-Mehdawi precludes this court having regard to the wider interests of justice”); R (Mathialagan) v Southwark LBC [2004] EWCA Civ 1689 at §38 (applying Al-Mehdawi). 61.1.25 Procedural fairness: the procedure that was bargained for. R (Med Chambers Ltd) v Medco Registration Solutions Ltd [2017] EWHC 3258 (Admin) at §27 (judicial review court can stay proceedings where claimant in breach of agreement as to how to decide disputes); Modahl v British Athletic Federation [2001] EWCA Civ 1447 [2002] 1 WLR 1192 at §61 (“where an apparently sensible appeal structure has been put in place, the court is entitled to approach the matter on the basis that the parties should have been taken [to] have agreed to accept what in the end is a fair decision”), §115 (Mance LJ); Tariq v Home Office [2011] UKSC 35 [2012] 1 AC 452 (closed process in employment claim) at §75 (“it was his own choice to seek employment in a post for which, in the interests of national security, security clearance was required”); Ceylon University v Fernando [1960] 1 WLR 223, 233 (“he must be taken to have agreed, when he became a member of the university, to be bound by the statutes of the university”); Furnell v Whangarei High Schools Board [1973] AC 660, 683B (“a teacher knows that under the terms governing his employment if charges are made and are to be investigated a suspension ‘pending the determination of the matter’ may take place”); Calvin v Carr [1980] AC 574, 594F (asking whether “the complainant has had a fair deal of the kind he bargained for”); Hamlet v General Municipal Boilermakers & Allied Trades Union [1987] 1 WLR 449, 456B (Harman J: “where a man has expressly agreed by contract to accept a tribunal containing certain persons, he cannot thereafter come bleating to the courts complaining of breach of natural justice when the contract is carried out exactly according to its terms”). 61.1.26 Procedural fairness and waiver/failure to complain/request. {31.3.7} (waiver: actual/apparent bias/disqualification); {31.3.8} (waiver: procedural fairness); {31.3.11} (procedural fairness and failure to request/complain/act: defendant’s onus). 61.1.27 Procedural fairness: fairness not best practice. R v SSHD, ex p Doody [1994] 1 AC 531, 560H-561A (Lord Mustill: “it is not enough for [the claimants] to persuade the court that 769

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some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the 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”); R v Devon County Council, ex p Baker [1995] 1 All ER 73, 85c-d (Dillon LJ: “Obviously it could be said to be best practice, in modern thinking, that before an administrative decision is made there should be consultation in some form, with those who will clearly be adversely affected by the decision. But judicial review is not granted for a mere failure to follow best practice. It has to be shown that the failure to consult amounts to a failure by the local authority to discharge its admitted duty to act fairly”); Hobbs v London Borough of Sutton (1994) 26 HLR 132, 147 (“It is obvious that in the field of administrative decision-making, there must be some compromise between what is administratively practical and what is ideally desirable”); R v Wokingham District Council, ex p J [1999] 2 FLR 1136, 1147B (although desirable, not a requirement of natural justice that natural parent should have been permitted to make written representations to adoption panel); R (Thompson) v Law Society [2004] EWCA Civ 167 [2004] 1 WLR 2522 at §50 (applying Doody); {16.5.6} (procedural latitude/ procedural discretion). 61.1.28 Fairness following choice: procedural fairness when taking voluntary action. {62.2.10} (consultation trigger: voluntary consultation must be legally adequate); {64.3.17} (adequacy of reasons: reasons given voluntarily); R (Sergeant) v First Minister of Wales [2019] EWHC 739 (Admin) [2019] 4 WLR 64 (breach of legitimate expectation as to arrangements for scope of non-statutory inquiry) at §92 (“unfair for the First Minister both to retain the political capital of the announcement that the work necessary to establish the investigation would be undertaken independently from his office, and to retain the power to decide what the arrangements for the investigation should be”); R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §86 (duty of procedural fairness applying although “the expedited process was one which was entirely discretionary and which the Secretary of State had no obligation to introduce in the first place”); R v SSHD, ex p McCartney [1994] COD 160 DC (having decided to take judicial advice, Minister obliged to allow prisoner to comment); R v Life Assurance and Unit Trust Regulatory Organisation Ltd, ex p Tee (1995) 7 Admin LR 289; R v London Borough of Camden, ex p Paddock [1995] COD 130 (transcript) (“It cannot be right that a public decision-making body which is not obliged to accord a hearing may choose to do so but may then make a charade of it”); R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139, 153e; cf {57.4.9} (reasonableness following choice). 61.1.29 Procedural fairness and interim decisions. {36.4.2} (procedural fairness and rights of immediate/subsequent immediate recourse). 61.1.30 Delay as procedural unfairness. {61.7.2} (a right to prompt resolution: delay as procedural unfairness). 61.1.31 Procedural fairness extends beyond HRA:ECHR Art 6. {59.5} (Article 6: fair hearing); {59.5.7} (Art 6: determination of civil rights and obligations); Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at §68 (closed material procedure incompatible with common law principles of natural justice and open justice, and so requiring statutory authority, albeit that it could be compatible with Art 6). 61.1.32 The bias principle. {P63} (bias).

61.2 Procedural fairness as a flexi-principle.147 Natural justice was always an entirely contextual principle. There are no rigid or universal rules as to what procedural fairness

147The

equivalent paragraph in a previous edition was relied on in R v Bank of England, ex p Mellstrom [1995] CLC 232; Cheltenham BC v Laird [2009] EWHC 1253 (QB) at §423 (Hamblen J); R (ABS Financial Planning Ltd) v FSCS [2011] EWHC 18 (Admin) at §80 (Beatson J).

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requires. The content of the duty of procedural fairness, a hard-edged question for the Court, depends on the particular function and circumstances of the individual case. 61.2.1 Procedural fairness: no tablets of stone (Lord Bridge). Lloyd v McMahon [1987] AC 625, 702H (Lord Bridge: “the so-called rules of natural justice are not engraved on tablets of stone. … What the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates”), applied in Lawrence v Financial Services Commission [2009] UKPC 49 at §35 and in R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331 [2017] 1 WLR 4750 at §50. 61.2.2 Procedural fairness is context-specific. R (ASK) v SSHD [2019] EWCA Civ 1239 at §63 (Hickinbottom LJ: “The scope of the duty [of fairness] is context specific”); Archie v Law Association of Trinidad and Tobago [2018] UKPC 23 at §39 (“the standards of fairness required vary enormously according to the type of decision in question”); R (Mason) v Crown Court at Winchester [2018] EWHC 1182 (Admin) [2018] 1 WLR 3850 at §45 (Jeremy Baker J: “the extent of the procedural requirements which will be necessary for fairness to be achieved will depend upon the nature of the decision and the context in which it is being considered”); R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 at §35 (describing “the commonplace and longstanding orthodoxy … that what is required [by common law fairness] is acutely sensitive to context”); R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §24 (Lord Wilson: “Fairness is a protean concept, not susceptible of much generalised enlargement”); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §52 (“the requirement of procedural fairness varies according to the context”); R (Hoffmann) v Commissioner of Inquiry [2012] UKPC 17 at §38 (“the requirement of fairness must be tailored in a manner that has regard to all the circumstances”); Manning v Ramjohn [2011] UKPC 20 at §39 (“the requirements of fairness in any given case depend crucially upon the particular circumstances”). 61.2.3 Procedural fairness: context-related factors. R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 at §39 (Gloster, Patten and Beatson LJJ: “the factors that affect what is required [by procedural fairness] in a given context … include the nature of the function under consideration, the statutory or other framework in which the decision-maker operates, the circumstances in which he or she is entitled to act and the range of decisions open to him or her, the interest of the person affected, the effect of the decision on that person’s rights or interests, that is, the seriousness of the consequences for that person. The nature of the function may involve fact-finding, assessments of matters such as character and present mental state, predictions as to future mental state and risk, or policymaking. The decision-maker may have a broad discretion as to what to do, or may be required to take into account certain matters, or to give them particular or even dispositive weight. The decision may affect the individual’s rights and interests, and its effect can vary from a minor inconvenience to a significant detriment”); JA (Afghanistan) v SSHD [2014] EWCA Civ 450 [2014] 1 WLR 4291 at §17 (Moore-Bick LJ: “What is required in order to meet the common law requirement of procedural fairness varies in accordance with the nature of the process, the purpose for which it is undertaken and the importance to the parties of the outcome”). 61.2.4 Procedural fairness: no precise prescriptions/rigid rules. Wiseman v Borneman [1971] AC 297, 308H-309C (Lord Morris: “We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to their application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. 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’”, referring to Cooper v Wandsworth Board of Works (1863) 14 CBNS 180, 194); De Smith, 771

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Judicial Review of Administrative Action (1st edition, 1959) at 109 (“The rules of natural justice are not rigid norms of unchanging content”); Furnell v Whangarei High Schools Board [1973] AC 660, 679G (“the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration”); Sheridan v Stanley Cole (Wainfleet) Ltd [2003] EWCA Civ 1046 [2003] 4 All ER 1181 at §33 (Ward LJ: “It is … impossible to lay down a rigid rule as to where the boundaries of procedural irregularity lie, or when the principles of natural justice are to apply, or what makes a hearing unfair. Everything depends on the subject matter and the facts and circumstances of each case”). 61.2.5 Procedural fairness: Lord Mustill’s principles of intuitive judgment. R v SSHD, ex p Doody [1994] 1 AC 531, 560D-G (Lord Mustill: “What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in … general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer”), applied in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §30 (Lord Sumption). 61.2.6 Procedural fairness: Lord Russell’s fair crack of the whip. Spitfire Bespoke Homes Ltd v Secretary of State for Housing Communities and Local Government [2020] EWHC 958 (Admin) (fairness in a written appeal process) at §49 (Andrews J: “the real issue, viewed objectively, is whether the party making the complaint has had a ‘fair crack of the whip’”); Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, 1265H-1266A (Lord Russell: “Fairmount has not had – in a phrase whose derivation neither I nor your Lordships could trace – a fair crack of the whip”), applied in E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 at §65 (in considering whether error of fact rendering decision unfair); and in R (Ashley) v Secretary of State for Communities and Local Government [2012] EWCA Civ 559 at §33 (Pill LJ). 61.2.7 Procedural fairness as a flexi-principle: other.148 R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438 at §27 (“What fairness requires depends on the context and the particular circumstances”); Bushell v Secretary of State for the Environment [1981] AC 75, 95D (“What is a fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 411H (“what procedure will satisfy the public law requirement of procedural propriety depends upon the subject matter of the decision, the executive functions of the decision-maker … and the particular circumstances in which the decision came to be made”), 415A-B (“Many features will come into play including the nature of the decision and the relationship of those involved on either side”); Ceylon University v Fernando [1960] 1 WLR 223, 231 (depends “on the facts and circumstances of the case in point”); In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, 609B

148The

equivalent paragraph in a previous edition was relied on in R (Ali) v SSHD [2012] EWHC 3379 (Admin) at §32 (Burnett J).

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(“the requirements of natural justice are not invariable, and … circumstances must alter cases”); R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 690f (“The categories of unfairness are not closed, and precedent should act as a guide not a cage”); R v SSHD, ex p Moon (1996) 8 Admin LR 477, 480E-F (“The well attested flexibility of natural justice does not mean that the Court applies differential standards at will, but that the application of the principles (which, subject to known exceptions, are constant) is necessarily as various as the situations in which they are invoked”); {31.4} (‘flexi-principles’). 61.2.8 Article 6 as a flexi-principle. {59.5.17}

61.3 Procedural fairness: supplementing the legislative scheme.149 Common law minimum standards of procedural fairness readily supplement the framework of primary or secondary legislation within which the public authority’s function is located. This supplementing of the legislative scheme has been characterised as a manifestation of the principle of legality. It can flourish even in cases of express and limited procedural statutory protections. This is the constitutional fundamental of basic fairness in action, ‘supplying the legislative omission’. 61.3.1 Procedural fairness: implied/superadded procedural duties. R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §68 (Singh LJ: “the duty to act fairly or the requirements of procedural fairness … will readily be implied into a statutory framework even when the legislation is silent and does not expressly require any particular procedure to be followed”); R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at §122 (Hickinbottom LJ: “The common law will readily imply requirements of procedural fairness into a statutory framework even where the legislation itself is silent”); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §201 (Lady Hale: “the law has … imposed procedural requirements upon apparently open-ended statutory powers. … I do not think that it matters whether these are characterised as implied conditions precedent or implied procedural requirements”); R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §30 (Laws LJ, referring to those situations where “a right to be heard [can] be inserted or implied into the statutory scheme not by virtue of the statute’s words, but by force of our public law standards of procedural fairness”), §31 (“the courts may in the name of fairness insist on the conferment upon affected persons of a right to be heard in the administration of a statutory scheme, itself silent as to such a right”); R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 at §44 (“The process is not one of discerning implied terms but of adding necessary ones”). 61.3.2 Justice of the common law ‘supplying the legislative omission’: Cooper v Wandsworth. R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §68 (“the common law will ‘supply the omission of the legislature’”), referring to Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 194 (Byles J: “although there are no positive words in a statute requiring that the parties shall be heard, yet the justice of the common law will supply the omission of the legislature”); Wiseman v Borneman [1971] AC 297, 317G (“It is necessary to look at the [statutory] procedure in its setting and ask the question whether it operates unfairly … to a point where the courts must supply the legislative omission”); N v Royal Bank of Scotland Plc [2017] EWCA Civ 253 [2017] 1 WLR 3938 at §59 (Hamblen LJ: “‘except where the statute prevents it’ the statutory regime must accommodate ‘the justice of the common law’”); Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §35. 61.3.3 Procedural fairness: supplementing the legislative scheme. R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §§42-43 (statutory duty to give opportunity to comment on allegations, in addition to which “the common law imports a duty of fairness” to allow comment on a sufficiently particularised “gist” and “relevant material”); R (CPRE Kent) v Dover District Council [2017] UKSC 149The

equivalent paragraph in a previous edition was relied on in Dr U v MCHK [2016] HKCFI 1053 at §209 (Hon Zervos J).

773

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79 [2018] 1 WLR 108 at §54 (Lord Carnwath: “the proper interpretation of the statute is underpinned by general principles, properly referred to as derived from the common law”), §55 (the “principle of open justice or transparency extends … to statutory … procedures”), §56 (“common law duty to disclose the reasons for a decision, supplementing the statutory rules”), §58 (“It is appropriate for the common law to fill the gaps, but to limit that intervention to circumstances where the legal policy reasons are particularly strong”); R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929 at §28 (no good legal policy reasons to require reasons for all decisions whether to call-in planning permission); R v SSHD, ex p Pierson [1998] AC 539, 588H (Lord Steyn: “our public law is … replete with … instances of the common law so supplementing statutes”); R (S) v London Borough of Brent [2002] EWCA Civ 693 [2002] ELR 556 at §14 (“the longstanding default principle that the common law will supplement such procedures to the extent necessary to ensure that they operate fairly”). 61.3.4 Procedural fairness supplementing the legislative scheme: the principle of legality. {35.2.8} (principle of legality and procedural fairness ‘supplementing the legislative scheme’). 61.3.5 Procedural fairness supplementing the legislative scheme: illustrations. R (EG) v Parole Board [2020] EWHC 1457 (Admin) at §99 (May J: “having a litigation friend is so fundamental to ensuring a fair hearing for a person who lacks mental capacity that it would require words which clearly exclude such an appointment before a court could find that it was not provided for”); Cosar v Governor of HMP Wandsworth [2020] EWHC 1142 (Admin) [2020] ACD 80 at §70 (Lewis J: “nothing in the context” regarding extradition time extensions “to indicate that the statutory procedures need to be supplemented by requiring notification to the individual”), §72; Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 [2007] 1 WLR 1420 at §8 (discretion to consider late objections, supplementing the statutory scheme to ensure fair and workable); R v Secretary of State for Education and Employment and the North East London Education Authority, ex p M [1996] ELR 162, 206A-210D (despite “striking omission” of any statutory requirement to consult, the court could not accept that no duty to consult arose; but such an omission was relevant when considering the extent to which consultation was demanded); R (BAPIO Action Ltd) v SSHD [2007] EWCA Civ 1139 at §58 (where parliamentary control mechanism over rule-making power “it is not generally for the courts to superimpose additional procedural safeguards”), §65 (“not for the courts to rewrite” the legislature’s scheme); R v SSHD, ex p Doody [1994] 1 AC 531, 562A-B (“impossible to accept that these limited and fragmentary statutory rights demonstrate a Parliamentary intention to exclude all other aspects of fair treatment”); Wiseman v Borneman [1971] AC 297, 317G (“It is necessary to look at the procedure in its setting and ask the question whether it operates unfairly … to a point where the courts must supply the legislative omission”); Pearlberg v Varty [1972] 1 WLR 534, 551A-B (“the legislature cannot be expected to specify everything that shall or shall not be done in order to comply with natural justice”); Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1582G-H (not difficult to imply the right to be heard); {64.2.7} (implied statutory duty to give reasons). 61.3.6 Procedural fairness supplementing rules/regulations. R v Wareham Magistrates’ Court, ex p Seldon [1988] 1 WLR 825 (natural justice supplementing the Magistrates Courts Rules 1981); R (Bentley) v HM Coroner District of Avon [2001] EWHC Admin 170 (although coroner’s rules not requiring advance disclosure of documents, disclosure should have been made in fairness); R (Gupta) v General Medical Council The Times 16 October 2001 (fairness requiring steps beyond those set out in GMC disciplinary rules); Stratford-on-Avon District Council & Secretary of State for the Environment v Bryant Homes Limited 30 January 1995 unreported (court “would be slow to accept that [the Rules] contain so comprehensive a code that there could be no breach of natural justice without a breach of the Rules”); R v Ministry of Agriculture Fisheries and Food, ex p St Clere’s Hall Farm [1995] 3 CMLR 125, 136-137 (whether natural justice supplementing EU Regulations); Banks v Kingston-upon-Thames [2008] EWCA Civ 1443 [2009] LGR 536 at §§71-72 (“purposive construction” to achieve an “additional procedural safeguard”). 774

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61.3.7 No room for additional procedural fairness: illustrations. R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199 at §108 (no general duty to notify those affected by changes in legislation regarding state pensions); Neumans LLP v Law Society [2018] EWCA Civ 325 (common law fairness excluded by statutory scheme regarding Law Society intervention action, the applicable procedural protection being the right of subsequent challenge); Littlewood v Powys County Council [2015] EWHC 2125 (Admin) [2016] PTSR 45 at §20 (“the legislation … is topic specific, precise and relatively detailed”, meaning the sole issue was one of statutory interpretation); Wiseman v Borneman [1971] AC 297, 318C (“the legislature may certainly exclude or limit the application of the general rules. But it has always been insisted that this must be done, clearly and expressly”); R v SSHD, ex p Fayed The Times 13 March 1996 (statute ruling out duty to give reasons, but not duty to disclose concerns so that claimants could make representations); R v Secretary of State for the Environment, ex p Hammersmith & Fulham LBC [1991] 1 AC 521, 600E-F (reasons duty “plainly excluded by the very precise terms in which the statute lays down the relevant procedure to be followed”); Pearlberg v Varty [1972] 1 WLR 534, 545E-G (“the omission … cannot … be regarded as anything other than deliberate”); Furnell v Whangarei High Schools Board [1973] AC 660, 681G (omission “must have been deliberate since the regulations proceed with great particularity to specify when and how communication should be made to him and when and how he should make response”). 61.3.8 Is the statutory procedure fair? This was the question posed in Wiseman v Borneman [1971] AC 297, 308G, 311G, 312D-E and 320E-F; Furnell v Whangarei High Schools Board [1973] AC 660 at 682F-683D; Huntley v Attorney-General for Jamaica [1995] 2 AC 1, 13B; R v Bakewell Magistrates’ Court, ex p Brewer [1995] COD 98; also Pearlberg v Varty [1972] 1 WLR 534, 545E (“assume that what has been done is fair until the contrary is shown”); also R (S) v London Borough of Brent [2002] EWCA Civ 693 [2002] ELR 556 at §14 (asking whether any feature of statutory scheme “which blocks the application of the longstanding default principle that the common law will supplement such procedures to the extent necessary to ensure that they operate fairly”); Lloyd v McMahon [1987] AC 625, 702H-703A (“when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness”). 61.3.9 Supplementing the Act and the legislative purpose. Rainbow Insurance Co Ltd v Financial Services Commission [2015] UKPC 15 at §§42, 44 (the statutory scheme did not “envisage” pre-suspension opportunity to make representations); Wiseman v Borneman [1971] AC 297, 308B-C (“the courts have … supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation”), applied in Pearlberg v Varty [1972] 1 WLR 534, 545D and in Century National Merchant Bank and Trust Co Ltd v Davies [1998] AC 628, 638C-639D; R v Birmingham City Council, ex p Ferrero Ltd [1993] 1 All ER 530, 543c-d (“To imply such a duty [to consult] would tend to frustrate the statutory purpose”); R v Secretary of State for Education and Employment and the North East London Education Authority, ex p M [1996] ELR 162, 208D (“The underlying statutory objectives … must not be stultified by an over-zealous superimposition of common law procedural requirements”). 61.3.10 Supplementing the Act: case-specific or blanket duty? R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929 at §29 (“The common law may, in certain circumstances, impose a duty to give reasons ‘to fills the gaps’ … but that could never be on [a] blanket scale”); R v Wareham Magistrates’ Court, ex p Seldon [1988] 1 WLR 825, 832H-833A (McCullough J: “the question is not one of the implication into the provision under consideration of a rigid requirement applicable in every case. It is one of fairness. In some cases fairness will require steps to be taken which in other cases it will not require”); cf R v Secretary of State for Wales, 775

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ex p Emery [1998] 4 All ER 367, 376j-377a (Roch LJ: “When the court supplements a statutory procedure, the additional safeguard which the court requires will apply in every case”).

61.4 Procedural ultra vires. Procedural obligations may be imposed on a public authority by a legally relevant instrument (including policy guidance), so that the authority acts unlawfully by breaching them. This is an intersection where unlawfulness and procedural unfairness meet. That intersectional nature (or overlap) is reinforced by the fact that common law procedural fairness imposes (or implies) duties by supplementing a legislative scheme. Where a procedural requirement is breached, the Court identifies the consequence by analysing the context and circumstances, asking what consequence was intended by the instrument. 61.4.1 Procedural ultra vires alongside procedural unfairness. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 411A-B (Lord Diplock: “I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice”); General Medical Council v Spackman [1943] AC 627, 640 (statutory duty to make “due inquiry” described as “natural justice”); Kanda v Government of Malaya [1962] AC 322, 337-338. 61.4.2 Express procedural duties: illustrations. R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) at §88 (sixth-form closures required ministerial approval); R (Coventry Gliding Club Ltd) v Harborough District Council [2019] EWHC 3059 (Admin) (failure of statutory duty to display notice near land); R (British Blind and Shutter Association) v Secretary of State for Housing Communities and Local Government [2019] EWHC 3162 (Admin) at §§43, 74 (unfair statutory consultation); Jobling v Richmondupon-Thames LBC [2019] EWHC 190 (Admin) at §§25, 56 (inadequate compliance with statutory duty to consult); Safi v Sandwell Borough Council [2018] EWCA Civ 2876 at §§37, 40 (failure to notify the procedure to be followed, in breach of regulations); R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §45 (breach of the statutory duty to give an opportunity to comment on allegations); R (Alvi) v SSHD [2012] UKSC 33 (duty to lay changes in immigration rules before Parliament); In re Application for Judicial Review by JR17 [2010] UKSC 27 [2010] HRLR 27 at §§50-51 (failure to hear representations and give reasons, under statutorily required scheme); R (Edwards) v Environment Agency [2008] UKHL 22 [2009] 1 All ER 57 (statutory EIA duty to consult); R v Commission for Racial Equality, ex p Hillingdon LBC [1982] AC 779, 787G-H (statutory duty ensuring natural justice); R v Oxford Regional Mental Health Review Tribunal, ex p SSHD [1988] AC 120 (Home Secretary’s right to be heard contained in the MHRT rules); Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 (statutory duty to give reasons); Bradbury v Enfield LBC [1967] 1 WLR 1311 (notice requirements); London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 (right to be told of right of appeal). 61.4.3 Whether intended vitiating consequence: Soneji. McGrath v Camden LBC [2020] EWHC 369 (Admin) at §52 (Holgate J: “Where legislation requires a procedural step or action to be taken, it may not specify the legal consequences of a failure to comply. … In such circumstances, the court must firstly construe the instrument in order to determine whether the legislature intended ‘total invalidity’ to follow. … If the answer to that question is ‘yes’ then no further issue arises. But if the answer is ‘no’, then the second question is whether the circumstances of the instant case indicate that invalidity should be the consequence. The answer to that question may be affected by whether there has been substantial compliance with the requirement, or whether any non-compliance has caused significant prejudice relevant to the purposes of the legislation”), §53 (different if “the legislature has spelled out the consequences of non-compliance”); R (Cardin) v Birmingham Crown Court [2017] 776

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EWHC 2101 (Admin) [2018] 1 Cr App R 3 (absence of requisite written notice of bail appeal not depriving Crown Court of jurisdiction); R v Guraj [2016] UKSC 65 [2017] 1 WLR 22 at §16 (“the correct approach to the legal consequences of failure to observe procedural provisions is to ask whether Parliament must have intended invalidity … to follow”); Public Prosecution Service v McKee [2013] UKSC 32 [2013] 1 WLR 1611 at §11; R v Soneji [2005] UKHL 49 [2006] 1 AC 340 at §23 (emphasising “the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity”); R (Haworth) v HMRC [2019] EWCA Civ 747 [2019] 1 WLR 4708 at §56 (Soneji as a twostaged inquiry: (i) “did Parliament intend total invalidity to result from failure to comply”, if not (ii) “despite invalidity not being the inevitable consequence of a failure to comply with a statutory requirement, does it none the less have that consequence in the circumstances of the given case”, SSHD v SM (Rwanda) [2018] EWCA Civ 2770 at §§51-52); R (Broomfield) v HMRC [2018] EWHC 1966 (Admin) [2019] 1 WLR 1353 at §89 (applying Soneji), §91 (Parliament would not have intended misstatement of prescribed period for response to result in total invalidity of tax notices); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §20 (invalidating consequence “spelled out by the legislation itself”); R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2012] EWHC 2579 (Admin) [2012] ACD 109 at §45 (failure to establish Child Poverty Commission and have regard to its advice, as required by the statute, rendering child poverty strategy ultra vires). 61.4.4 Whether procedural ultra vires needs prejudice. {4.2.1} (procedural unfairness/ procedural flaw and prejudice); R v Guraj [2016] UKSC 65 [2017] 1 WLR 22 at §31 (invalidating consequence not arising here from procedural “defect … alone” but only “if unfairness … would thereby ensue … that cannot be cured”); R (Kambadzi) v SSHD [2011] UKSC 23 [2011] 1 WLR 1299 (detention unlawful for failure to adhere to policy requirement of detention reviews; but nominal damages because of lack of prejudice); London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 195B (Lord Fraser: “The validity of a certificate is not in my opinion dependent on whether the appellants were actually prejudiced by it or not”); R v Board of Visitors of Dartmoor Prison, ex p Smith [1987] QB 106, 125A-C (refusal to imply additional requirement of prejudice); R v Camden LBC, ex p Cran (1996) 94 LGR 8, 75 (sufficient that significant risk that decision might have been different); R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 (failure to give reasons: prejudice unnecessary), 314f-h (distinguishing Save Britain’s Heritage); Westminster City Council v Cabaj The Times 8 May 1996 (contractual right to a correctly constituted appeal panel not necessarily meaning dismissal unfair); R v Department of Health, ex p Gandhi [1991] 1 WLR 1053, 1068A-B (even though outcome may not have been any different, and delay, appropriate to make declaration that procedural requirements not followed); R v Swansea City Council, ex p Elitestone Ltd [1993] 2 PLR 65, 70B-C (“a requirement in the public interest which must be observed regardless of lack of prejudice to any specific individual. … Parliament has enacted an inhibition and that inhibition must be observed”); R v Bradford Metropolitan Borough Council, ex p Sikander Ali [1994] ELR 299, 318C (claimant not “underinformed or in any way misled”); R v SSHD, ex p Awais Karni Butt [1994] Imm AR 11, 13 (no prejudice from failure to complete examination, where induced by claimant’s own conduct); R v MacDonald (Inspector of Taxes), ex p Hutchinson and Co Ltd [1998] STC 680, 686j-687b (effect of failure to comply with statutory duty to give summary of reasons “depends on the importance of the requirements in the context of the particular statutory scheme”; here, important protection in context of intrusive power, so failure normally provides grounds to set aside the decision, subject to discretion to refuse a remedy). 61.4.5 Procedural ultra vires and delegated legislation. Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 365C-D (Lord Diplock: “the courts have jurisdiction to declare [the Order] to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order purported to be made, and this is so whether the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects)”); R v Secretary of 777

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State for Health, ex p United States Tobacco International Inc [1992] QB 353 (regulations quashed for failure to consult on scientific report on which based); R v Secretary of State for Education and Employment, ex p National Union of Teachers 14 July 2000 unreported (statutory instrument unlawful for failure to consult); Simmonds v Newell [1953] 1 WLR 826; R v Sheer Metalcraft Ltd [1954] 1 QB 586; R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1986] 1 WLR 1; R v Secretary of State for Social Services, ex p Camden LBC [1987] 1 WLR 819. 61.4.6 Procedural ultra vires and detention. R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52 at §35 (procedural flaws vitiating immigration detention if touching directly on the decision to detain), §39 (failure to give adequate explanation within three days of mental health recall not having a sufficiently direct link to vitiate the detention). 61.4.7 Failure to complain. {31.3.8} (waiver: procedural fairness); {31.3.9}-{31.3.10} (procedural fairness: failure to request/complain/act). 61.4.8 Procedural ultra vires as a question for the Court. {16.5.5}

61.5 Basic right to be heard. A key feature of the common law principle of procedural fairness is the duty on a public authority to give relevant persons a prior opportunity to make representations, often by putting matters and allowing a chance to comment, the response then being conscientiously considered by the authority. There is an overlap with the duty of legally adequate consultation, the duty of legally sufficient inquiry and the duty to take relevant considerations into account. 61.5.1 The right to be heard: general. R (Talpada) v SSHD [2018] EWCA Civ 841 at §57 (Singh LJ: “the fundamental requirement … is to give an opportunity to a person whose legally protected interests may be affected by a public authority’s decision to make representations to that authority before (or at least usually before) the decision is taken”); Rashid v Oil Companies International Marine Forum [2019] EWHC 2239 (QB) at §86 (right to “know the charges he has to meet”); R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §98 (Lord Reed: “a prisoner should normally have a reasonable opportunity to make representations before a [continued segregation] decision is taken”); In re Application for Judicial Review by JR17 [2010] UKSC 27 [2010] HRLR 27 at §50 (claimant’s right to have a reasonable opportunity of learning what is alleged against him and putting forward his answer to it, as “one of the fundamental rights accorded by the common law rules of natural justice”); Broadview Energy Developments Ltd v Secretary of State for Communities and Local Government [2016] EWCA Civ 562 at §25 (the “fundamental principle of the common law which requires a decision-maker to listen to and take into account both sides of an argument”); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §66 (Maurice Kay LJ: “Accountability requires that the accountable person is obliged to explain the state of affairs to which it attaches. The corollary is that there must be a proper opportunity to do so”); R v SSHD, ex p Doody [1994] 1 AC 531, 560D-G (Lord Mustill: “Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both”); In re Hamilton; In re Forrest [1981] AC 1038, 1045B-D (Lord Fraser: “One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem”); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 368D-E (“the commissioners … must act fairly by giving to the person whose activities are being investigated a reasonable opportunity to put forward facts and arguments in justification of his conduct of these activities before they reach a conclusion which may affect him adversely”); National Commercial Bank Ltd v Olint Corporation Ltd [2009] UKPC 16 [2009] 1 WLR 1405 at §13 (“Audi alteram partem is a salutary and important principle”); {61.6} (basic right to be informed). 778

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61.5.2 Distinction between ‘right to be heard’ and ‘consultation’. R (Kebbell Developments Ltd) v Leeds City Council [2018] EWCA Civ 450 [2018] 1 WLR 4625 at §§68-69 (Singh LJ: “procedural fairness in the treatment of persons whose legally protected interests may be adversely affected … is really the modern term for what used to be called ‘natural justice’, in particular the limb of it which used to be called audi alteram partem (‘hear the other side’). Public law no longer talks of ‘judicial’ or ‘quasi-judicial’ disputes and so even the notion of a ‘hearing’ seems inapt now but the fundamental requirement of procedural fairness is to give an opportunity to a person whose legally protected interests may be affected by a public authority’s decision to make representations to that authority before (or at least usually before) the decision is taken. To refer to ‘consultation’ in that context is not wrong as a matter of language but I think it would be better to avoid using it in that context, so as to avoid confusion with the sense in which it is used in the context of public participation in a public authority’s processes for making policy or perhaps some form of legislation such as rules”); {P62} (consultation). 61.5.3 Duty of legally sufficient inquiry. {51.1} (duty of sufficient inquiry); {P56} (relevancy/irrelevancy). 61.5.4 Right to be heard before decision taken. R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §60 (Underhill, Hickinbottom and Singh LJJ: “unless the circumstances of a particular case make this impracticable, the ability to make representations only after a decision has been taken will usually be insufficient to satisfy the demands of common law procedural fairness. The rationale for this proposition lies in the underlying reasons for having procedural fairness in the first place. It is conducive to better decisionmaking because it ensures that the decision-maker is fully-informed at a point when a decision is still at a formative stage. It also shows respect for the individual whose interests are affected, who will know that they have had the opportunity to influence a decision before it is made. Another rationale is no doubt that, if a decision has already been made, human nature being what it is, the decision-maker may unconsciously and in good faith tend to be defensive over the decision to which he or she had previously come”); {36.4.2} (procedural fairness and rights of immediate/subsequent recourse). 61.5.5 Right to be heard broader than legitimate expectation. R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) [2018] PTSR 26 at §59 (Singh J: “it will not always be necessary for a claimant to establish that it had a legitimate expectation that there would be consultation, based on a defendant’s promise or past practice of consultation”); {61.1.16}-{61.1.21} (procedural legitimate expectation). 61.5.6 Right to be heard: illustrations. R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §55 (right to be heard on suspected dishonesty before indefinite leave to remain refused); R (Segalov) v Chief Constable of Sussex [2018] EWHC 3187 (Admin) [2019] ACD 17 at §46 (police refusal to accredit journalist to attend party conference unfair for failure to allow representations); State of Mauritius v CT Power Ltd [2019] UKPC 27 at §61 (fairness did not require opportunity to respond to letter, given previous opportunities); Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §49 (direction “unlawful for want of prior notice … or any procedure enabling them to be heard in advance”); Manning v Ramjohn [2011] UKPC 20 (Prime Minister acting unfairly in revoking a foreign posting, and exercising a power of veto, in each case without giving a reason and allowing the opportunity to respond); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §61 (Secretary of State’s unfair failure to give “an opportunity to answer the charge”); R v Secretary of State for the Environment, ex p Brent LBC [1982] QB 593 (breach of natural justice for Minister to fix rate support policy and then not permit representations by local authorities); R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) [2018] PTSR 26 at §69 (duty to act fairly included giving claimant notice of proposed new s.106 agreement); R (Persimmon Homes (South East) Ltd) v Secretary of State for Transport [2005] EWHC 96 (Admin) at §22 (fairness not requiring Secretary of State to have an extra-statutory public inquiry); R v London Borough of Hackney, ex p Decordova (1995) 27 HLR 108, 113 (Laws J: “If the authority is minded to make an adverse decision because it does not believe the 779

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account given by the [claimant], it has to give the [claimant] an opportunity to deal with it”); R v Enfield LBC, ex p TF Unwin (Roydon) Ltd (1989) 1 Admin LR 50 (unfairness in suspending company from list of preferred contractors); R (A1 Veg Ltd) v Hounslow LBC [2003] EWHC 3112 (Admin) [2004] LGR 536 (unfair for council in allocating reduced market space not to raise factual matters for disabusement); Dennis Hutchings [2019] UKSC 26 at §§53-65 (no duty to hear representations before certifying case as appropriate for non-jury trial); R (FNM) v DPP [2020] EWHC 870 (Admin) [2020] 2 Cr App R 17 at §§45-46 (in review of decision not to prosecute, complainant entitled to make representations but DPP not required positively to invite them); R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3 [2010] 1 AC 410 at §§46, 82 (duty to hear representations where unclear whether information should be included in Enhanced Criminal Record certificate); Lawrence v Financial Services Commission [2009] UKPC 49 at §34 (no right to be heard before penalty notice served, since not reflecting a finding of guilt and claimant able to defend any ensuing prosecution); R (L) v SSHD [2003] EWCA Civ 25 [2003] 1 WLR 1230 at §30 (Secretary of State required to give fair hearing before certifying human rights claim as clearly unfounded and removing asylum-seeker; need to give fair opportunity to demonstrate an arguable case); R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §90 (unfair process because of inadequate questioning of asylum-seekers in relation to denial of welfare entitlements); R (D) v SSHD [2003] EWHC 155 (Admin) [2003] 1 FLR 979 at §28 (detained mother should have been given an opportunity to make representations before being separated from her baby); Lewis v Attorney-General of Jamaica [2001] 2 AC 50 (procedural defects in considering prerogative of mercy); Century National Merchant Bank and Trust Co Ltd v Davies [1998] AC 628, 639C-D (impracticable and contrary to the public interest for bank directors to be heard before ministerial intervention). 61.5.7 Extent of the duty to hear: relevant/affected persons. R v Commission for Racial Equality, ex p Hillingdon LBC [1982] AC 779, 787F (Lord Diplock, describing the “presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision”); Bushell v Secretary of State for the Environment [1981] AC 75, 96E (Lord Diplock: “Fairness would suggest that [as well as objectors] supporters of the scheme should also be heard and would require that before a decision is made to modify a draft scheme those adversely affected by the modification should be given an opportunity of stating their reasons for objecting to it”); Cheall v Association of Professional Executive Clerical & Computer Staff [1983] 2 AC 180, 190B (Lord Diplock: “Decisions that resolve disputes between the parties to them, whether by litigation or some other adversarial dispute-resolving process, often have consequences which affect persons who are not parties to the dispute; but the legal concept of natural justice has never been extended to give such persons as well as the parties themselves rights to be heard by the decision-making tribunal before the decision is reached”); R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299, 307 (“duty to act fairly … means that they should be ready to hear not only the particular applicant but also any other persons or bodies whose interests are affected”); {62.2.11} (whom to consult). 61.5.8 Claimant relying on duty to hear/consult a third party. R (Article 39) v Secretary of State for Education [2020] EWHC 2184 (Admin) at §80 (claimant entitled to raise a failure to consult the Children’s Commissioner), applying R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657; R (Juttla) v Hertfordshire Valleys Clinical Commissioning Group [2018] EWHC 267 (Admin) at §16 (service users bringing successful judicial review, of decision withdrawing funding for respite care service for children with complex medical needs, on grounds of non-compliance with statutory duty to consult the local authority); R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 (judicial review by NGO arguing that defendant had breached a statutory duty to consult local authorities); R v North Yorkshire County Council, ex p M [1989] QB 411, 418A-F (parents successfully relying on duty to consult guardian ad litem); In re Findlay [1985] AC 318, 333E-334C (prisoners claiming duty to consult the Parole Board); R v Tunbridge Wells Health Authority, ex p Goodridge The Times 21 May 1988 (doctors granted judicial review of hospital closure for failure to consult CHC); {61.6.16} (claimant relying on duty to inform/disclose information to a third party). 780

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61.5.9 Fair hearing: not a court model. Rashid v Oil Companies International Marine Forum [2019] EWHC 2239 (QB) at §78 (Martin Spencer J: natural justice does not mean an obligation “to behave as if a court of law”); R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §55 (Ryder LJ: “it is important that this court does not import into the informal, non-judicial process of administrative and complaints adjudicators like the ombudsman the procedures of courts and tribunals”); R (L) v West London Mental Health NHS Trust [2014] EWCA Civ 47 [2014] 1 WLR 3103 at §8 (wrong to require “a procedure which was inappropriately at the adversarial end of the spectrum of adjudicative methods of decision-making”); R (Maxwell) v Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1236 [2012] PTSR 884 at §32 (IAO’s informal inquisitorial review scheme “quite different from civil proceedings”, and not “a rigorous adversarial judicial process dealing with the proof of contested facts”), §33 (“the courts are not entitled to impose on the informal review procedure of the OIA a requirement that it should have to adjudicate on issues”), §38 (“not intended to be fully judicial, or to be operated in accordance with civil trial procedures”); Board of Education v Rice [1911] AC 179, 182 (decision-making body not “bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view”); Local Government Board v Arlidge [1915] AC 120, 134 (criticising the “fallacy of the judgment of the majority in the Court of Appeal … [in] setting up the test of the procedure of a Court of justice”); Bushell v Secretary of State for the Environment [1981] AC 75, 95B-D (Lord Diplock, endorsing a “warning against applying to procedures involved in the making of administrative decisions concepts that are appropriate to the conduct of ordinary civil litigation between private parties. So rather than use such phrases as ‘natural justice’ which may suggest that the prototype is only to be found in procedures followed by English courts of law, I prefer … that [the inquiry] must be fair”), 97B-D (“To ‘over-judicialise’ the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair”); Ceylon University v Fernando [1960] 1 WLR 223, 234 (“the Vice-Chancellor was not bound to treat the matter as if it was a trial … but could obtain information about it in any way he thought best, [and] it was open to him, if he thought fit, to question witnesses without inviting the plaintiff to be present”); R v SSHD, ex p Venables [1998] AC 407, 503C-D (“Whilst it is right for the courts to ensure that in making his decision the Secretary of State acts in accordance with natural justice … the court should be careful not to impose judicial procedures and attitudes on what Parliament has decided should be an executive function”); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 368C-D (“The adversary procedure followed in a court of law is not appropriate”); Mahon v Air New Zealand Ltd [1984] AC 808, 821A (“The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice”); R (B) v Merton LBC [2003] EWHC 1689 (Admin) [2003] 4 All ER 280 (considering local authority’s approach whether unaccompanied asylum-seeker owed duty as being aged less than 18 years old) at §50 (wrong “to impose unrealistic and unnecessary burdens”; “Judicialisation of what are relatively straightforward decisions is to be avoided”).

61.6 Basic right to be informed. Closely linked to the right to be heard is the right to be given sufficient information to enable proper representations. This aspect of fair procedure allows representations to be properly informed, eliminates unfair secrecy, and avoids the affected person later being unfairly taken by surprise. 61.6.1 Being heard and being told: the vital link. {61.5} (basic right to be heard). 61.6.2 Listen means tell. R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §49 (“the claimants must be able to respond to the allegations and in this case that necessitated disclosure of the medical evidence”); R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §100 (Lord Reed: “A prisoner’s 781

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right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond. He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought”); R (Ramda) v SSHD [2002] EWHC 1278 (Admin) at §25 (Sedley LJ: “[The SSHD] must not rely on potentially influential material which is withheld from the individual affected. This is a simple corollary of Lord Loreburn’s axiom that the duty to listen fairly to both sides lies upon everyone who decides anything (Board of Education v Rice [1911] AC 179) and of Lord Denning’s dictum that if the right to be heard is to be worth anything it must carry a right in the accused man to know the case against him (Kanda v Government of Malaya [1962] AC 322)”); Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1588F (Lord Morris (dissenting in the result): “What would be the point of giving someone a right to be heard while denying to him any knowledge as to what he was to be heard about?”); Kanda v Government of Malaya [1962] AC 322, 337 (Lord Denning: “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them”); R v Commission for Racial Equality, ex p Hillingdon LBC [1982] AC 779, 787H-788A (“The right of a person to be heard in support of his objection to a proposal to embark upon an investigation of his activities cannot be exercised effectively unless that person is informed with reasonable specificity what are the kinds of acts to which the proposed investigation is to be directed and confined”); Ridge v Baldwin [1964] AC 40, 113-114 (“the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet”; “here is something which is basic to our system: the importance of upholding it far transcends the significance of any particular case”); O’Reilly v Mackman [1983] 2 AC 237, 279G (“a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it”); De Verteuil v Knaggs [1918] AC 557, 560 (“a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice”); In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, 603H-604A (“it is a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer”); R v SSHD, ex p Murat Akdogan [1995] Imm AR 176, 179-181 (not enough simply to ask whether person concerned wants to say/add anything), applying R v SSHD, ex p Sittampalam Thirukumar [1989] Imm AR 402, 414 (“if the opportunity to make representations is to be meaningful the mind of the applicant must be directed to the considerations which will, as matters stand, defeat the application”); R v P Borough Council, ex p S [1999] Fam 188, 220C (“One of the basic requirements of procedural fairness is that the decision-maker must disclose to the person affected, in advance of the decision, information of relevance to the decision so that the person affected has an opportunity to controvert it or to comment on it”). 61.6.3 Tell means listen. Ceylon University v Fernando [1960] 1 WLR 223, 234 (Lord Jenkins: “the vital condition … that a fair opportunity must have been given to the plaintiff to correct or contradict any relevant statement to his prejudice”); R v North Yorkshire County Council, ex p M [1989] QB 411, 418D-E (“duty on the part of the local authority, not only to disclose proposals for change in relation to the child, but also to listen to the views of the guardian ad litem”); R v Devon County Council, ex p Baker [1995] 1 All ER 73, 83c-d; Wiseman v Borneman [1971] AC 297, 315D-E (“to give the taxpayer the right to see the counter-statement would be useless unless he were also allowed to comment upon it and have his comments taken into consideration by the tribunal”), 308D (Lord Reid), 312B-C (Lord Guest); R (Wainwright) v Richmond upon Thames LBC [2001] EWHC Admin 1090 at §6 (purpose of notification of the public of proposal means council having duty to consider representations made in response to notification). 782

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61.6.4 Codified/common law rights to information. {17.5.3} 61.6.5 Access to the evidence in contested proceedings. Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at §§12-14 (“trials are conducted on the basis of the principle of natural justice”), §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”); R (British Sky Broadcasting Ltd) v Central Criminal Court [2014] UKSC 17 [2014] AC 885 at §30 (Lord Toulson: “Equal treatment of the parties requires that each should know what material the other is asking the court to take into account in making its decision and should have a fair opportunity to respond to it. That is inherent in the concept of an ‘inter partes’ hearing”); R (ILPA) v Tribunal Procedure Committee [2016] EWHC 218 (Admin) [2016] 1 WLR 3519 at §§24-26. 61.6.6 The right not to be unfairly taken by surprise. R (British Blind and Shutter Association) v Secretary of State for Housing Communities and Local Government [2019] EWHC 3162 (Admin) at §77 (consultation unfair because claimant association “taken by surprise” by scope of ban); Rashid v Oil Companies International Marine Forum [2019] EWHC 2239 (QB) at §77 (unfair if “ambushed” by “questions going beyond the scope of the enquiry and in relation to which he had no fair opportunity to prepare himself and, if necessary, present evidence in advance of the hearing”); Wokingham Borough Council v Secretary of State for Communities and Local Government [2017] EWHC 1863 (Admin) [2018] PTSR 303 at §110 (“the inspector unfairly applied at 10% ‘lapse rate’ … when he had not been invited to do so without first giving the council an opportunity to address evidence and/or submissions to him on whether or not he should do so”); Grafton Group (UK) plc v Secretary of State for Transport [2016] EWCA Civ 561 [2017] 1 WLR 373 at §41 (unfair that envisaged basis of action not put to the parties at inspector’s inquiry); MRH Solicitors Ltd v Manchester County Court [2015] EWHC 1795 (Admin) [2015] ACD 147 (unfair for county court judge to make findings of fraud without giving an opportunity for the person concerned to give evidence to rebut the allegation); R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §30 (Lord Steyn: “In our system of law surprise is regarded as the enemy of justice”); Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, 1266D-E (“taken by surprise in a relevantly unfair way by the conclusions of the inspector accepted by the Secretary of State”); Hadmor Productions Ltd v Hamilton [1983] 1 AC 191, 233B-C (“one of the most fundamental rules of natural justice: the right of each to be informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is”). 61.6.7 Whether a right to be told. Barlow v Secretary of State for Housing, Communities and Local Government [2019] EWHC 146 (QB) at §6 (Andrews J: “Procedural fairness requires that (i) a party to a planning inquiry know the case he has to meet and (ii) has a reasonable opportunity to adduce evidence and make submissions in relation to that case”, citing Hopkins [2014] EWCA Civ 470 at §§62, 85-88); R (Mason) v Crown Court at Winchester [2018] EWHC 1182 (Admin) [2018] 1 WLR 3850 at §54 (claimant needed “the opportunity of correcting and contradicting the issues which were central”); R (Spencer) v City of Westminster Magistrates’ Court [2017] EWHC 3603 (Admin) [2018] ACD 21 at §§10-11 (“procedural irregularity” for district judge to rely on a series of cases which claimant “had been given no opportunity, whether during the hearing or prior to the handing down of the judgment, to obtain, to consider, or to make submissions about”); R (Knight) v Secretary of State for Transport [2017] EWHC 1722 (Admin) [2017] ACD 102 at §58 (Teare J: “conduct relied upon as amounting to fraud or dishonesty must be identified with precision and the [individual] must be given an opportunity to respond to the charge made against him”); R (EL) v Essex County Council [2017] EWHC 1041 (Admin) [2017] PTSR 1000 at §60 (“before it embarked on the implementation of a placement plan, fairness … required the local authority to inform the [mother] that, unless she issued an application … for permission to revoke the placement order by a certain date, it would proceed”); R (Roche Registration Ltd) v Secretary of State for Health [2015] EWCA Civ 1311 [2016] 4 WLR 46 at §75 (fairness not requiring claimant to be told what “under the legal and administrative system in place” 783

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the claimant “knew, or could reasonably be expected to know” about “what was likely to happen”); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §35 (describing the “right to know what [the] currently existing policy is, so that the individual can make relevant representations in relation to it”); SSHD v AF (No 3) [2009] UKHL 28 [2010] 2 AC 269 (control orders and the individual’s right to be informed of the essence of the case against them), §63 (Lord Phillips, describing the “strong policy considerations that support a rule that a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him”), §83 (Lord Hope); Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 [2007] 1 WLR 1420 at §§8, 74 (licence applicant entitled to have late objections fairly put); R (H) v A City Council [2011] EWCA Civ 403 [2011] UKHRR 599 at §§49, 62 (profoundly unfair to take and implement decision behind the claimants’ back, without giving an opportunity to make representations until confronted with a fait accompli); R (Rudling) v General Medical Council [2018] EWHC 3582 (Admin) [2019] PTSR 843 at §46 (medical practitioner’s right to know full extent of probity allegation being made against them); R (Ferguson) v Secretary of State for Justice [2011] EWHC 5 (Admin) at §38 (not unfair to rely on undisclosed internal advice of prison psychologist); R (London Reading College Ltd) v SSHD [2010] EWHC 2561 (Admin) [2010] ELR 809 at §42 (revocation of language college’s sponsorship licence unfair for failure to communicate criticisms prior to decision); Ward v Police Service of Northern Ireland [2007] UKHL 50 [2007] 1 WLR 3013 (claimant lawfully excluded from closed part of hearing); R (Abbey Mine Ltd) v Coal Authority [2008] EWCA Civ 353 at §§31-32 (licence bidder entitled to be told concerns regarding bid, but not details of rival bidder’s case); R (D) v Independent Appeal Panel of Bromley LBC [2007] EWCA Civ 1010 [2008] LGR 267 (parents entitled to be told the case they needed to meet on reinstatement); R (Benson) v Secretary of State for Justice [2007] EWHC 2055 (Admin) (recalled prisoner not provided with information regarding alleged licence breach in sufficient detail to provide meaningful response); R (Oyeyi-Effiong) v Bridge NDC Seven Sisters Partnership [2007] EWHC 606 (Admin) [2007] LGR 669 at §55 (needing clear picture of misconduct case and nature of investigation); R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438 at §66 (unfair not to disclose fully executable model); R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 234 [2007] LGR 619 at §70 (non-disclosure of internal assessment report not unfair); R (Banks) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 416 (Admin) at §95 (failure to explain “what concerns they had to answer”); R v SSHD, ex p Fayed [1998] 1 WLR 763 (citizenship applicant entitled to be told of Secretary of State’s concerns), applied in R (Thamby) v SSHD [2011] EWHC 1763 (Admin) at §67 (Sales J: naturalisation applicant entitled to “a reasonable opportunity to deal with matters adverse to his application”); R (Amvac Chemical UK Ltd) v Secretary of State for Environment, Food and Rural Affairs [2001] EWHC Admin 1011 at §§54-64 (despite urgency, failure to give fair and prompt warning and opportunity for comment); R (Kent Pharmaceuticals Ltd) v Director of the Serious Fraud Office [2004] EWCA Civ 1494 [2005] 1 WLR 1302 at §29 (owner of seized documents entitled to be told of intended disclosure to another government department). 61.6.8 Whether a right to see documents/materials relied upon.150 In re A (Family Proceedings: Disclosure) [2012] UKSC 60 [2013] 2 AC 66 at §20 (Lady Hale: “It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by [a] court when reaching a decision adverse to that party”); R (Roberts) v Parole Board [2005] UKHL 45 [2005] 2 AC 738 at §43 (Lord Woolf, referring to a “golden rule of full disclosure”); Kanda v Government of Malaya [1962] AC 322, 336 (“the hearing by the adjudicating officer was vitiated by his being furnished with [the] report without [the claimant] being given any opportunity of correcting or contradicting it”); R (Primary Health Investment Properties Ltd) v Secretary of State for Health [2009] EWHC 519 (Admin) [2009] PTSR 1563 at §120 (McCombe J, speaking in the context of a

150The

equivalent of this paragraph in a previous edition was relied on in VHAP of 2002 v Minister for Immigration [2003] FCA 448 (Federal Court of Australia) at §15 (Finklestein J); Re JR95 (A Minor) [2020] NIQB 8 at §14 (Keegan J).

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“decision-maker in a formal dispute”: “elementary fairness in any decision-making process requires that the parties should have seen all the documents in the case that are presented to the decision-maker and/or any adviser that the decision-maker may consult”); R (Ramda) v SSHD [2002] EWHC 1278 (Admin) at §25 (SSHD “must not rely on potentially influential material which is withheld from the individual affected”); R (Edwards) v Environment Agency [2006] EWCA Civ 877 [2007] Env LR 126 (CA) at §106 (unfair not to disclose internal expert report); R v London Borough of Camden, ex p Paddock [1995] COD 130 (transcript) (describing as “fundamental”, the “principle that a decision-making body should not see relevant material without giving those affected a chance to comment on it and, if they wish, to controvert it”); R (Banks) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 416 (Admin) (unfair failure to disclose test results), §104 (“Defra deliberately refused to disclose highly material information to the claimants”); Wiseman v Borneman [1971] AC 297, 320B-C (“the natural aversion against allowing a decision to be made on the basis of material he has not seen”); Crompton v General Medical Council [1981] 1 WLR 1435, 1441E (“observance of the rules of natural justice would have demanded that the psychiatric medical evidence upon which the committee proposed to act should be disclosed to the doctor and an opportunity given to him to answer it and adduce, if he so wished, expert psychiatric evidence on his own behalf to contradict it”); R (O’Leary) v Chief Constable of the Merseyside Police 9 February 2001 unreported at §16 (unfair not to disclose and allow comment on departmental report relied on in imposing employment restrictions); R v Hampshire County Council, ex p K [1990] 2 QB 71 (duty in child abuse case to disclose to accused parents oral and written medical reports); R v Bank of England, ex p Mellstrom [1995] CLC 232, 240B-241E (whether breach of natural justice even though material not in fact relied upon); R v Bromley Magistrates Court, ex p Smith [1995] 1 WLR 944, 947F-H (right to see unused material); R v London Legal Aid Area Office Committee, ex p Ewing [1997] COD 134 (no duty to disclose memorandum of guidance to decision-maker, regarding relevant legal principles); R v Criminal Injuries Compensation Authority, ex p Leatherland [2001] ACD 76 (“It is … a requirement of fairness … that a claimant who is appealing to the [Criminal Injuries Compensation] Appeals Panel should be provided, in advance of the day of the hearing, with access to the evidential material which the Authority, through its presenting officers, will be relying upon at the hearing of the appeal”); R (Bentley) v HM Coroner District of Avon [2001] EWHC Admin 170 (unfair for coroner not to have made advance disclosure of witness statements); R v Governors of Dunraven School, ex p B [2000] ELR 156 (unfair for governors to have access to material to which accused pupil did not); R (Bedford) v London Borough of Islington [2002] EWHC 2044 (Admin) [2003] Env LR 463 at §102 (no unfairness here in non-disclosure of confidential document relating to planning application); Sheridan v Stanley Cole (Wainfleet) Ltd [2003] EWCA Civ 1046 [2003] 4 All ER 1181 (unfair for EAT not to allow chance to make representations on new authorities relied on, if central to its decision); R (Green) v Police Complaints Authority [2004] UKHL 6 [2004] 1 WLR 725 (Police Complaints Authority entitled to decline to disclose to the complainant confidential statements and documents relating to eyewitnesses, where disclosure was not necessary for the proper discharge of the PCA’s functions). 61.6.9 A right to sufficient information. R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §43 (Ryder LJ, describing the “fundamental right” to “a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it”, citing In re Application for Judicial Review by JR17 [2010] UKSC 27 [2010] HRLR 27 at §50); Bushell v Secretary of State for the Environment [1981] AC 75, 96C-D (Lord Diplock: “fairness requires that the objectors should … be given sufficient information about the reasons relied on by the department as justifying the draft scheme to enable them to challenge the accuracy of any facts and the validity of any arguments upon which the departmental reasons are based”); In re Pergamon Press Ltd [1971] Ch 388, 400E-F; Chiltern District Council v Keane [1985] 1 WLR 619, 622A-B; R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1986] 1 WLR 1, 4G; R v SSHD, ex p Hickey (No 2) [1995] 1 WLR 734, 742D-F, 743C-D, 744A-C; R v Inland Revenue Commissioners, ex p Howmet [1994] STC 413, 414d-j. 785

GROUNDS FOR JUDICIAL REVIEW

61.6.10 Whether a right to disclosure of material/other persons’ representations. R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §43 (Ryder LJ: “Decision-making bodies whether administrative or adjudicative in character should not consider relevant material (supportive or adverse to their case) without giving the affected person the right to comment upon it”), §49 (entitled to “disclosure of the medical evidence upon which the ombudsman relied”); Kanda v Government of Malaya [1962] AC 322, 337 (entitled to “know what evidence has been given and what statements have been made affecting him”); R (Begum) v Tower Hamlets LBC [2002] EWHC 633 (Admin) [2003] HLR 70 at §34 (accepting in a housing context that “when inquiries of third persons yield significant information inconsistent with that provided by the applicant, which will substantially affect the decision of the local authority, the local authority must put that information to the applicant and give him an opportunity to comment on it”); R (Anglian Water Services Ltd) v Environment Agency [2003] EWHC 1506 (Admin) [2004] Env LR 287 at §26 (unfair for Environment Agency not to disclose residents’ representations for sewerage company to comment, where dispute as to whether to impose requirement to provide a public sewer); R (Abbey Mine Ltd) v Coal Authority [2008] EWCA Civ 353 at §§31-32 (no entitlement to description of rival bidder’s case); R v Secretary of State for Health, ex p United States Tobacco International Inc [1992] QB 353, 370F-G (not entitled to see other persons’ representations); R v Secretary of State for Wales, ex p Williams [1997] ELR 100 (no duty to prolong consultation to allow everybody to comment on everybody else’s comments); R (Green) v Police Complaints Authority [2004] UKHL 6 [2004] 1 WLR 725 (no duty here to disclose eyewitness statements to victim). 61.6.11 A right to pre-decision ‘reasons’/impressions.151 R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §55 (where minded to refuse indefinite leave to remain based on dishonesty or reprehensible conduct, SSHD required to put suspicion to individual, give an opportunity to respond, and take any response into account in making the decision); R (Karagul) v SSHD [2019] EWHC 3208 (Admin) at §§103, 126 (unfair not to put that applications made dishonestly); Ramdeen v Trinidad and Tobago [2014] UKPC 7 [2015] AC 562 at §44 (judge unfairly denied opportunity to respond to allegations prior to reappointment decision); R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748 (age assessment by local authority) at §21 (Sir Anthony May P, for the Court of Appeal: “it is axiomatic that an applicant should be given a fair and proper opportunity, at a stage when a possible adverse decision is no more than provisional, to deal with important points adverse to his age case which may weigh against him. Obvious possible such points are the absence of supporting documents, inconsistencies, or a provisional conclusion that he is not telling the truth with summary reasons for that provisional view”); R (Interbrew SA) v Competition Commission [2001] EWHC Admin 367 (Moses J: “generally [the duty of fairness] will require the decision maker to identify in advance areas which are causing him concern in reaching the decision in question”); Bushell v Secretary of State for the Environment [1981] AC 75, 96C-D (Lord Diplock, describing a context where “Fairness … requires that the objectors should be given sufficient information about the reasons relied on by the department as justifying the draft scheme to enable them to challenge the accuracy of any facts and the validity of any arguments upon which the departmental reasons are based”); Mahon v Air New Zealand Ltd [1984] AC 808, 821B (“the risk of the finding being made”); R v Gaming Board for Great Britain, ex p Benaim & Khaida [1970] 2 QB 417, 430H (“impressions”); R v SSHD, ex p Fayed [1998] 1 WLR 763, 776H (duty “to identify the subject of his concern in such terms as to enable the [claimant] to make such submissions as he can”); R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 WLR 621, 628G-629E (no breach of natural justice for Parliamentary Ombudsman to disclose draft report to DSS but not to complainant); Huntley v Attorney-General for Jamaica [1995] 2 AC 1, 17C-E (due process in context of prerogative of mercy); R v Governors of the Sheffield Hallam University, ex p R [1995] ELR 267, 282-284

151The

equivalent paragraph in a previous edition was relied on in Camden LBC v SSHD [2019] EWHC 2537 (Admin) at §35 (John Kimbell QC).

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(right to “adequate prior warning” prior to expulsion); R v Southwark LBC, ex p Ryder (1996) 28 HLR 56, 67 (failure to give opportunity to comment on decisive factor); R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §99 (failure to put relevant matters to asylum-seekers in relation to welfare benefits); R (Varma) v Duke of Kent [2004] EWHC 1705 (Admin) [2004] ELR 616 at §24 (Visitor should in fairness have given student opportunity to make representations on commissary’s advice). 61.6.12 The right to the ‘gist’/essence. In re A (Family Proceedings: Disclosure) [2012] UKSC 60 [2013] 2 AC 66 at §34 (Lady Hale: “The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him”); R v SSHD, ex p Doody [1994] 1 AC 531, 560F-G (“Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer”); Re McClean [2005] UKHL 46 [2005] UKHRR 826 (importance of giving gist in sentence review context); In re Pergamon Press Ltd [1971] Ch 388, 399H-400A (Lord Denning MR: “before they condemn or criticise a man, the [inspectors] must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice”); cf Lewis v Attorney-General of Jamaica [2001] 2 AC 50 (condemned prisoner entitled to documents not merely the gist, in relation to prerogative of mercy). 61.6.13 AF (No 3) disclosure in some Article 6 cases. R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin) at §24 (Dame Victoria Sharp P and Farbey J, summarising the circumstances in which “AF (No 3) disclosure” must be given, where executive action against the individual); SSHD v AF (No 3) [2009] UKHL 28 [2010] 2 AC 269 at §65 (Art 6 requiring that individual subject to a control order entitled to “knowledge of the essence of the case against him”), §81 (entitlement to “sufficient information about the allegations against him to enable him to give effective instructions”); QX v SSHD [2020] EWHC 1221 (Admin) [2020] ACD 83 at §83 (applying AF (No 3) to statutory review of Temporary Exclusion Order conditions); Tariq v Home Office [2011] UKSC 35 [2012] 1 AC 452 (no absolute right under Art 6 to the essence of the case in a security-cleared employment discrimination claim); R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §65 (not axiomatic that the gist of the relevant information must be supplied to person whose property seized under a search warrant); R (AZ) v SSHD [2017] EWCA Civ 35 [2017] 4 WLR 94 at §37 (AF (No 3) disclosure not required by Art 6); {2.1.12} (whether HRA:ECHR Art 6 applicable to judicial review proceedings). 61.6.14 Limits of the duty to tell. R (Liral Veget Training and Recruitment Ltd) v SSHD [2018] EWHC 2941 (Admin) at §50(i) (no duty to spell out to the claimant precisely what documents the claimant had to produce); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 369D-E (Lord Diplock: “Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision”); R v Secretary of State for Education, ex p S [1995] ELR 71, 81G-H, 85F-G (Russell LJ: “There must come a time when finality has to be achieved”); R (Ramda) v SSHD [2002] EWHC 1278 (Admin) at §25 (“the Home Secretary is not required to be drawn into a never-ending dialogue”); R v SSHD, ex p Al-Mehdawi [1990] 1 AC 876 (sending notice of hearing sufficed); {61.6.12} (the right to the ‘gist’/essence); R v Bradford Metropolitan Borough Council, ex p Sikander Ali [1994] ELR 299, 318B (Jowitt J: “The statutory requirement is to publish information about the policy to be followed in deciding admissions. That does not require that every nut and bolt of what is to be done has to be spelt out”). 61.6.15 Confidentiality, sensitivity fairness and disclosure. R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 at §103 (Lord Reed, describing the situation where “information … cannot be disclosed in full without placing at significant risk the safety of others or jeopardising prison security … [or] other overriding interests may be placed at risk. In such circumstances, fairness does not require the disclosure of information 787

GROUNDS FOR JUDICIAL REVIEW

which could compromise the safety of an informant, the integrity of prison security or other overriding interests. It will be sufficient to inform the prisoner in more or less general terms of the gist of the reasons for seeking the authority of the Secretary of State”); R (English) v East Staffordshire Borough Council [2010] EWHC 2744 (Admin) at §§25-38 (not unfair to grant planning permission without disclosing commercially sensitive report); R v SSHD, ex p Kingdom of Belgium 15 February 2000 unreported (Simon Brown LJ, asking: “does the public interest in making the limited further disclosure now sought outweigh the remaining confidentiality in the report? That [depends] upon whether disclosure to the requesting states is required in the interests of fairness. If fairness demands disclosure, then to my mind disclosure clearly becomes the overriding public interest”); R (Gunn-Russo) v Nugent Care Society [2001] EWHC Admin 566 [2001] UKHRR 1320 (discussing the approach to fairness and confidentiality); R (Green) v Police Complaints Authority [2004] UKHL 6 [2004] 1 WLR 725 at §73 (Lord Rodger: “if disclosure were … necessary for the proper discharge of the Authority’s functions, then the statements would have to be disclosed, whether or not they were regarded as confidential. But it should be recognised that the [statutory] starting-point … is that information provided to the Authority is to be kept confidential”); R v Gaming Board for Great Britain, ex p Benaim & Khaida [1970] 2 QB 417, 431B-G (confidentiality means not entitled to sources); R v Lewes Justices, ex p the Gaming Board of Great Britain [1973] AC 388; R v Joint Higher Committee on Surgical Training, ex p Milner (1995) 7 Admin LR 454, 468F-470D (confidentiality of educational references not overridden by natural justice); R v Poole Borough Council, ex p Cooper (1995) 27 HLR 605, 612-613 (confidentiality and adverse information in a housing context); R v London Beth Din (Court of the Chief Rabbi), ex p Michael Bloom [1998] COD 131 (defendant entitled to balance interests by concluding that information provided in confidence should not be disclosed); R v Criminal Injuries Compensation Authority, ex p Leatherland [2001] ACD 76 (confidentiality not a sufficient reason not to disclose evidence on which relying). 61.6.16 Claimant relying on duty to inform/disclose information to a third party. Wilson v Environment Secretary [1973] 1 WLR 1083, 1096D-1097A (claimants entitled to rely on deficient public notice because, whether or not themselves prevented from making representations, it was in their interests that other members of the public should have the opportunity to come forward and object); R (Wainwright) v Richmond upon Thames LBC [2001] EWHC Admin 1090 at §47 (“it will only be in a rare or (at least) comparatively rare case that a claimant who has the opportunity of making detailed representations will be able to rely upon a failure to consult others”), §46 (“no evidence that the [claimant] was in fact deprived of any support or that other persons would have made any additional points”); R v SSHD, ex p Abdi [1996] 1 WLR 298 (whether Secretary of State having obligation to afford adequate and balanced information to adjudicator considering appeal); R v Kent Police Authority, ex p Godden [1971] 2 QB 662 (natural justice requiring that claimant’s doctor, albeit not claimant himself, should have before him all the information to which the police authority’s doctor had access); R v Secretary of State for Education, ex p S [1995] ELR 71 (whether additional material ought to have been disclosed, not only to the claimant parents and the relevant local education authority); R v City of London Magistrates, ex p Asif [1996] STC 611 (applications for access orders as to bank documents relating to the claimant should have been inter partes on notice to the claimant, and to the bank); R v Commissioners of Inland Revenue, ex p Continental Shipping Ltd [1996] STC 813 (remedy refused where failure to provide statutorily required reasons but reasons duty owed to individuals who had not complained and were not parties to the proceedings); {61.5.8} (claimant relying on duty to hear/consult a third party).

61.7 Other rights of procedural fairness. Procedural fairness can extend beyond the basic rights to be properly informed and heard (listened to). Context and circumstances may require other procedural rights and duties. Alongside its procedural duties a public authority may have a relevant procedural power, with a basic duty properly to consider whether to exercise it. 61.7.1 A right to time to prepare/deal. R (Grinham) v Parole Board [2020] EWHC 2140 (Admin) at §65 (Spencer J, describing unfairness arising from late provision of materials 788

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which meant “insufficient time was available for the [oral] hearing to be conducted in an unhurried and seemly manner”), §69 (“various failures to comply with the case-management directions led to undue pressure of time”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 415F-G (describing situations involving “an expectation of being allowed time to make representations”); PN v SSHD [2019] EWHC 1616 (Admin) at §75 (Lewis J, finding fast-track appeal procedurally unfair because “the short time scales … did not [give] the opportunity to adduce evidence”); Barlow v Secretary of State for Housing, Communities and Local Government [2019] EWHC 146 (QB) (refusal to adjourn planning inquiry not unfair); R (Medical Justice) v SSHD [2011] EWCA Civ 1710 at §20 (in immigration removal context, need for “a reasonable opportunity to obtain legal advice and assistance”); R (W) v Croydon LBC [2011] EWHC 696 (Admin) (2011) 14 CCLR 247 at §39 (parents having insufficient time to respond to proposals); R (Agogo) v North Somerset Magistrates’ Court [2011] EWHC 518 (Admin) (unfair not to adjourn, where claimant unrepresented and facing lengthy imprisonment, so that case could be properly prepared and presented); R v Cheshire County Council, ex p C [1998] ELR 66, 73G-74B (Sedley J, speaking of the exercise of the power to adjourn as “classically a free-standing public law obligation and justiciable as such”); R v Kingston-Upon-Thames Justices, ex p Peter Martin [1994] Imm AR 172, 178; R v London Borough of Barnet, ex p B [1994] ELR 357, 374H; R v Devon County Council, ex p Baker [1995] 1 All ER 73, 83c-d, 84j-85a, 86g-h, 91d-e; R v Birmingham City Council, ex p Dredger (1994) 6 Admin LR 553, 574H-576B; R v Northern & Yorks Regional Health Authority, ex p Trivedi [1995] 1 WLR 961, 975B; R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1986] 1 WLR 1, 4E-H; R v Governors of Haberdasher Aske’s Hatcham Schools, ex p Inner London Education Authority (1989) 1 Admin LR 22, 26A; R v Legal Aid Board, ex p Duncan [2000] COD 159 (transcript at §515) (“the imposition of a timetable of some kind was both necessary and desirable”); {62.3.7} (legally adequate consultation: adequate time). 61.7.2 A right to a prompt resolution: delay as procedural unfairness.152 Durity v Attorney General of Trinidad and Tobago [2008] UKPC 59 at §29 (in the context of “gross delay” in investigating alleged judicial misconduct: “the principles of natural justice demand that particular attention must be paid to the need for fairness”, which “includes having the allegation investigated promptly and determined as quickly as possible, especially if the judicial officer has been suspended”); R v Lambeth LBC, ex p Crookes (1997) 29 HLR 28 (inordinate delay as procedural impropriety); R v SSHD, ex p Roberts 7 July 1998 unreported (delay in parole review inordinate and consonant neither with fairness nor good administration); cf Goose v Wilson Sandford and Co The Times 19 February 1998 (allowing a civil appeal, High Court’s 20-month delay in giving judgment inexcusable; denial of justice and ultimately subversive of the rule of law). 61.7.3 A right to representation/assistance. R v Board of Visitors of HM Prison, The Maze, ex p Hone [1988] AC 379, 392D (fairness may require legal representation before board of visitors); R (EG) v Parole Board [2020] EWHC 1457 (Admin) at §99 (importance of a litigation friend for person lacking mental capacity); R (AS) v Great Yarmouth Youth Court [2011] EWHC 2059 (Admin) at §§8-9 (claimant wrongly refused a registered intermediary to assist him in giving evidence); R v SSHD, ex p Tarrant [1985] QB 251, 278F (lawyer), 282E-F (friend/adviser); R (S) v Northampton Crown Court [2010] EWHC 723 (Admin) [2012] 1 WLR 1 (right in fairness to a special advocate where bail refused on closed material); R v Leicester City Justices, ex p Barrow [1991] 2 QB 260, 284H-285A, 285G (right to reasonable assistance in presenting case, eg McKenzie friend); R v SSHD, ex p Lawson [1994] Imm AR 58 (asylum-seeker having no right to legal representation during interview; but SSHD having a discretion as to whether to allow this); R v SSHD, ex p Bostanci [1999] Imm AR 411 (asylum-seeker having no right to be accompanied at interview by an interpreter, but discretion; here, refusal irrational); R (Wagstaff) v Secretary of State for Health [2001] 152The

equivalent paragraph in a previous edition was relied on in R (JJ Management LLP) v HMRC [2019] EWHC 2006 (Admin) [2020] QB 619 at §77 (Nugee J).

789

GROUNDS FOR JUDICIAL REVIEW

1 WLR 292, 322F (vulnerability to challenge of tribunal decision refusing to provide lawyers for affected families); R (S) v Knowsley NHS Primary Care Trust [2006] EWHC 26 (Admin) at §101 (Trust should have allowed legal representation before deciding removal from NHS list). 61.7.4 Whether a right to an oral hearing: parole board. R (Black) v Parole Board [2020] EWHC 265 (Admin) at §8 (Julian Knowles J: “This is a case where the issues are such that an oral hearing was required in the interests of fairness”); R (Bennett) v Parole Board [2019] EWHC 2746 (Admin) [2019] ACD 139 (unfair not to hold an oral hearing); R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 (when fairness requires an oral hearing before the parole board); R (West) v Parole Board [2005] UKHL 1 [2005] 1 WLR 350 at §§31, 35 (Parole Board should normally hold oral hearing in relation to licence revocation decision). 61.7.5 Whether a right to attend/speak/oral hearing/public hearing: other. Begum v Special Immigration Appeals Commission [2020] EWCA Civ 918 at §122 (procedural fairness requiring that claimant be given leave to enter the UK, for effective participation at her appeal); R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §56 (no duty to hold an oral interview in an indefinite leave to remain dishonesty case); R (Hopkins) v Secretary of State for Justice [2019] EWHC 2151 (Admin) [2019] ACD 132 at §51 (decision not to hold an oral hearing for prisoner categorisation review breached common law duty of fairness); Littlewood v Powys County Council [2015] EWHC 2125 (Admin) [2016] PTSR 45 at §36 (statutory entitlement “to make representations orally” meaning “seeing and hearing directly” with the opportunity “to engage in some dialogue and/or ask questions”), §42 (“to send the adjudicator a recording is … to subvert the intention and purpose”); R (Kerr) v Cambridge City Council [2011] EWHC 1623 (Admin) (serious procedural error in not permitting principal objector to speak at planning committee meeting); R (Sandhar) v Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1614 [2012] ELR 160 at §45 (no reason why oral hearing required in student complaint); R (Hoffmann) v Commissioner of Inquiry [2012] UKPC 17 at §65 (commissioner conducting inquiry discharged duty to give reasonable opportunity to give oral evidence, before arriving at adverse findings); Naraynsingh v Commissioner of Police [2004] UKPC 20 at §19 (no obligation to hold an oral hearing in relation to revocation of firearms certificate); R (Jones) v Justices of the Peace [2008] EWHC 2740 (Admin) at §§7, 10 (unfair to deal with contested crucial issue of fact without hearing oral evidence from the claimant and the matter being put squarely to him in cross-examination); R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292 (irrational all the circumstances for the Shipman inquiry to sit in private and not in public); R v Department of Health, ex p Gandhi [1991] 1 WLR 1053, 1063F (“An oral hearing should be held where, in all the circumstances, the issues cannot fairly be resolved otherwise”); Storer v British Gas Plc [2000] 1 WLR 1237 (decision of tribunal quashed and remitted because not conducted in public, being a fundamental requirement reflected in regulations); R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2001] EWCA Civ 329 [2003] 1 AC 563 (CA) at §50 (“the possibility of an oral hearing is excluded by the nature of the process in question”) (HL is at [2002] UKHL 21 [2003] 1 AC 563); cf R v Camden LBC, ex p Cran (1996) 94 LGR 8, 39 (consultation not requiring “face to face discussion”). 61.7.6 Whether a right to cross-examine. Bushell v Secretary of State for the Environment [1981] AC 75, 116D (fairness here requiring “that a party be given an opportunity of challenging by cross-examination witnesses called by another party on relevant issues”); R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 [2012] IRLR 37 at §130 (unreasonable and Art 6-incompatible for GMC to allow hearsay evidence in disciplinary proceedings, denying the claimant for no good reason the right to cross-examine the main witness against him); R (Evans) v Chief Constable of Sussex [2011] EWHC 2329 (Admin) (inappropriate to use fasttrack disciplinary process where conflict of evidence needing testing by cross-examination); R (Headley) v Parole Board [2009] EWHC 663 (Admin) at §22 (importance of allegation leading to recall meaning fairness required an opportunity to test it by cross-examination); Ceylon University v Fernando [1960] 1 WLR 223, 235; R v Criminal Injuries Compensation Board, ex p Cobb [1995] COD 126 (right to an adjournment to allow key witness to attend for 790

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cross-examination); Re I and H (Contact: Right to Give Evidence) [1998] 1 FLR 876 (breach of fundamental right to be heard for county court judge to deny applicant for parental contact order the right to cross-examine and give oral evidence); R (S) v Knowsley NHS Primary Care Trust [2006] EWHC 26 (Admin) at §91 (Trust should have allowed oral evidence and crossexamination in deciding removal from NHS list). 61.7.7 The right to have material fairly presented. {51.2} (whether material fairly presented/properly addressed). 61.7.8 The right to a stay pending related proceedings? R v Panel on Takeovers and Mergers, ex p Fayed [1992] BCC 524, 531E-F (Neill LJ: “the Court has power to intervene to prevent injustice where the continuation of one set of proceedings may prejudice the fairness of the trial of other proceedings. … But it is a power which has to be exercised with great care and only where there is a real risk of serious prejudice which may lead to injustice”), applied in R v Institute of Chartered Accountants in England & Wales, ex p Brindle 21 December 1993 unreported (claim succeeding on the ground of real risk of serious prejudice); cf R v Chairman of the Regulatory Board of Lloyds Ltd, ex p Macmillan The Times 14 December 1994, R v Chance, ex p Coopers & Lybrand (1995) 7 Admin LR 821, 829D-G, 832F-833D and R v Executive Council of the Joint Disciplinary Scheme, ex p Hipps 12 June 1996 unreported (all of which applications failed and Brindle was distinguished as exceptional). 61.7.9 Rights to proactivity/assistance by the decision-maker. R (McIntyre) v Parole Board [2013] EWHC 1969 (Admin) [2014] ACD 17 at §20 (parole board chair required to ensure that a proper record of hearing is made and maintained); R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 347B (“unfairness in the failure to put the doctor’s evidence before the board and if necessary to grant an adjournment for that purpose”); R (O) v Independent Appeal Panel for Tower Hamlets LBC [2007] EWHC 1455 (Admin) [2007] ELR 468 (panel not obliged by fairness to raise question of hearing linked cases together); Dennis v United Kingdom Central Council for Nursing [1993] Med LR 252 (tribunal should explain its views on construction of relevant Act or rules, so that parties can decide what evidence to adduce); R v Nature Conservancy Council, ex p Bolton Metropolitan Borough Council [1995] Env LR 237, 256-257 (NCC should have corrected consultee’s misapprehension); R v Blundeston Board of Prison Visitors, ex p Fox-Taylor [1982] 1 All ER 646 (unfair not to disclose existence of potential defence witness); R v Sefton Housing Benefit Review Board, ex p Brennan (1997) 29 HLR 735 (Board should have informed claimant’s representative that minded to reject his assertion, so that supportive evidence could be adduced); R (Ford) v Leasehold Valuation Tribunal [2005] EWHC 503 (Admin) (tribunal should have investigated doubt, to ensure no injustice to absent landlord). 61.7.10 Powers of procedural fairness: duty to consider exercise of the power. R v SSHD, ex p Tarrant [1985] QB 251 (boards of prison visitors acting unlawfully in concluding that no power to allow representation, when should have considered exercising the power); R v Army Board of the Defence Council, ex p Anderson [1992] QB 169 (Army Board should have considered whether to hold an oral hearing), 188D-F; R (Chief Constable of Nottinghamshire Police) v Nottingham Magistrates’ Court [2009] EWHC 3182 (Admin) [2010] 2 All ER 342 at §31 (responsible authority having no right to appear at licensing appeal), §39 (but implied power to allow appearance); R (WB) v Leeds School Organisation Committee [2002] EWHC 1927 (Admin) [2003] ELR 67 at §30 (school organisation committee having a power, but not a duty, to hear oral representations from objectors); R v Clerkenwell Metropolitan Stipendiary Magistrate, ex p Telegraph Plc [1993] QB 462 (wrongly concluding that no power to hear the press regarding reporting restrictions); R v Bromley Licensing Justices, ex p Bromley Licensed Victuallers’ Association [1984] 1 WLR 585 (error in concluding that the police alone could object to applications for liquor licences), 590D-E; R v Northern & Yorkshire Regional Health Authority, ex p Tesco Stores Ltd [1996] COD 140 (error in concluding that no power to hear appeals together); R v SSHD, ex p Vera Lawson [1994] Imm AR 58, 60-61 (power to allow legal representation, and duty to consider exercising that power); R v Guildford Crown Court, ex p Siderfin [1990] 2 QB 683, 694E-H (no valid reason for not adjourning to allow claimant to be represented in conscientious objection appeal against refusal to excuse her from jury 791

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service); R v Board of Visitors of Hull Prison, ex p St Germain (No 2) [1979] 1 WLR 1401 (unfairness in refusing to exercise the discretion to allow an opportunity to (a) call witnesses; and/or (b) challenge hearsay evidence); {39.2.4} (duty to consider exercising the power). 61.7.11 Whether other procedural rights/irregularities. R (SSP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin) [2016] Med LR 473 (fairness requiring procedures for challenge to and correction of inaccurate findings of fact in report); R (Griffin) v City of Westminster Magistrates’ Court [2011] EWHC 943 (Admin) [2012] 1 WLR 270 (extradition order in the claimant’s absence); R (Drinkwater) v Solihull Magistrates’ Court [2012] EWHC 765 (Admin) (refusal to adjourn without considering implications and principles as to proceeding with trial in accused’s absence); R (Raheem) v Nursing and Midwifery Council [2010] EWHC 2549 (Admin) at §§42-43 (failure to approach “with the utmost care and caution” the discretion whether to continue in the claimant’s absence); R (Low) v Independent Adjudicator [2009] EWHC 2253 (Admin) (unfair for adjudicator to meet with potential witnesses before the hearing); R (Mapah) v SSHD [2003] EWHC 306 (Admin) [2003] Imm AR 395 (fairness not requiring that Secretary of State make arrangements for asylum interviews to be tape-recorded); Raji v General Medical Council [2003] UKPC 24 [2003] 1 WLR 1052 (doctor’s right to a fair sequence: a decision and reasons on restoration before representations being made on suspension); R (Tromans) v Cannock Chase District Council [2004] EWCA Civ 1036 [2004] LGR 735 (unfair not to check accuracy of disputed recording of planning committee vote); R (Goldsmith) v London Borough of Wandsworth [2004] EWCA Civ 1170 (2004) 7 CCLR 472 at §68 (panel wrongly failing to keep minutes of meetings); Tangney v Governor of HMP Elmley [2005] EWCA Civ 1009 [2005] HRLR 1220 (no common law right to disciplinary decision being an independent adjudication).

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P62 Consultation. A public authority’s consultation must be undertaken at a formative stage, giving time and details to elicit an informed response, then conscientiously considering it. 62.1 Consultation 62.2 Triggers for a consultation duty 62.3 Legally adequate consultation: the Sedley requirements

62.1 Consultation. Public consultation is a virtue and discipline of certain aspects of decision-making, rule-marking and policy-making. It is governed by well-established public law principles. Legally adequate consultation is linked to procedural fairness, being concerned with procedure and applying Court-identified objective standards. It is also linked to legally sufficient inquiry. In each of these respects it then feeds into informed decision-making, allowing relevant considerations to be identified and taken into account. 62.1.1 Legally adequate consultation: in a nutshell. R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at §90 (Hickinbottom LJ: “The public body doing the consulting must put a consultee into a position properly to consider and respond to the consultation request. … Consultees must be told enough – and in sufficiently clear terms – to enable them to make an intelligent response. … A consultation may be unlawful if it fails to achieve the purpose for which the consultation is carried out”; “The product of the consultation must be conscientiously taken into account before finalising any decision”); R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 at §108 (Lord Woolf MR: “To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken”, endorsed in R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §25 as “a prescription for fairness”); {62.3} (legally adequate consultation: the Sedley requirements). 62.1.2 Rationale of legally adequate consultation. R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §24 (Lord Wilson: “two of the purposes of procedural fairness … underlie the requirement that a consultation should be fair. First, the requirement ‘is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested’. … Second, it avoids ‘the sense of injustice which the person who is the subject of the decision will otherwise feel’. … Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society”, applied in R (Nettleship) v NHS South Tyneside Clinical Commissioning Group [2020] EWCA Civ 46 [2020] PTSR 928 at §27), §38 (Lord Reid, describing the rationale of statutory duty of public consultation: “The purpose of public consultation in that context is … not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority’s decision-making process”); R (A) v South Kent Coastal CCG [2020] EWHC 372 (Admin) at §§59-60. 62.1.3 Distinction between consultation and procedural fairness (basic right to be heard). R (Kebbell Developments Ltd) v Leeds City Council [2018] EWCA Civ 450 [2018] 1 WLR 4625 at §66 (Singh LJ, distinguishing “consultation of the general public or a section of the public” from a situation “whether the duty to act fairly arises in relation to a particular person who is affected by a public authority’s decision”), §68 (describing the former situation as “consultation” in the sense of “public participation in a public authority’s decision-making

GROUNDS FOR JUDICIAL REVIEW

process”), §63 (content of “consultation” governed by ‘the Sedley requirements’), §68-69 (better to avoid the word “consultation” to describe “procedural fairness in the treatment of persons whose legally protected interests may be adversely affected”); R (Plant) v Lambeth LBC [2016] EWHC 3324 (Admin) [2017] PTSR 453 at §77 (Holgate J, discussing the distinction between “procedural fairness in the treatment of persons whose legally protected interests may be adversely affected” and “consultation … to ensure public participation in the local authority’s decision-making process”); R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) [2018] PTSR 26 at §59 (duty to give opportunity to comment does not require legitimate expectation of consultation); R (United Company Rusal Plc) v London Metal Exchange [2014] EWCA Civ 1271 [2015] 1 WLR 1375 at §25 (Arden LJ, describing the “scope of the … duty to consult” as “governed by a common law duty to act fairly”), §84 (“The common law duty of fairness is imposed on a public body to enable those who are affected by its decisions to respond to a particular proposal about a decision the consultant body proposes to make or may make depending on the outcome of the consultation”). 62.1.4 Latitude in consultation. R (Keep the Horton General) v Oxfordshire Clinical Commissioning Group [2019] EWCA Civ 646 (2019) 22 CCL Rep 69 at §18 (McCombe LJ: “fairness does not require perfection. A challenge will not necessarily succeed simply by pointing out a way in which the consultation could have been better, unless the failure to proceed in that way has led to real unfairness”), §66 (Sir Terence Etherton MR: “The mere fact that it was not perfect or could have been improved is not enough to make the consultation unlawful if, in all the circumstances, it provided a fair opportunity for those to whom the consultation was directed adequately to address the issue in question”); R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at §90 (Hickinbottom LJ: “The courts will not lightly find that a consultation process is unfair. Unless there is a specification as to the matters that are to be consulted upon, it is for the public body charged with performing the consultation to determine how it is to be carried out, including the manner and extent of the consultation, subject only to review by the court on conventional judicial review grounds”), §97 (whether “sufficient information” elicited “was a matter for the Secretary of State …, subject only to a challenge on conventional judicial review grounds”); R (United Company Rusal Plc) v London Metal Exchange [2014] EWCA Civ 1271 [2015] 1 WLR 1375 at §29 (Arden LJ: “the courts have to allow the consultant body a wide degree of discretion as to the options on which to consult”); R (Whitston) v Secretary of State for Justice [2014] EWHC 3044 (Admin) [2015] 1 Costs LR 35 at §28. 62.1.5 Consultation and unfairness: ‘so unfair as to be unlawful’. R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074 at §69 (Bean LJ, explaining that “the test remains whether the process was so unfair as to be unlawful”; not an “additional hurdle” of whether “something has gone clearly and radically wrong”); R (Keep the Horton General) v Oxfordshire Clinical Commissioning Group [2019] EWCA Civ 646 (2019) 22 CCL Rep 69 at §18 (McCombe LJ: “to be lawful a consultation must be fair”, asking whether “real unfairness”), §66 (Sir Terence Etherton MR, asking whether “in all the circumstances, it provided a fair opportunity for those to whom the consultation was directed adequately to address the issue in question”); R (Electronic Collar Manufacturers Association) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin) [2020] ACD 4 at §27(6) (“The ultimate test is one of ‘clear unfairness’”); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §68 (“The ultimate test has been expressed as whether the consultation process was so unfair as to be unlawful”); R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 [2016] 1 WLR 3923 at §60 (asking whether the “consultation process … contravened the requirements of procedural fairness”, “the test is whether the process has been so unfair as to be unlawful”); R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at §90 (Hickinbottom LJ: “for a consultation to be found to be unlawful, ‘clear unfairness must be shown’”); cf R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) [2007] Env LR 623 at §63 (Sullivan J: “In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be 794

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based upon a finding by the court, not merely that something went wrong, but that something went ‘clearly and radically’ wrong”); R (Plant) v Lambeth LBC [2016] EWHC 3324 (Admin) [2017] PTSR 453 at §88 (explaining that Sullivan J had in a subsequent case “clarified his earlier statement [in Greenpeace] by saying that it was not putting forward a different test to the correct formulation which is ‘whether the process is so unfair as to be unlawful’”); R (L) v Buckinghamshire County Council [2019] EWHC 1817 (Admin) at §39 (whether “something has gone clearly and radically wrong”); R (AA) v Rotherham Metropolitan Borough Council [2019] EWHC 3529 (Admin) at §73 (“the court needs to be satisfied that there was some substantial error and unfairness”).

62.2 Triggers for a consultation duty. There is no general common law duty to conduct a consultation exercise for every decision-making, policy-making or rule-making process. There are instead a number of different ways in which a duty to conduct a legally adequate consultation may arise. 62.2.1 No general common law duty of consultation. R (AD) v Hackney LBC [2019] EWHC 943 (Admin) [2019] PTSR 1947 at §87 (Supperstone J: “The common law does not impose any general duty on decision makers to consult before they take decisions”); R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §35 (Lord Reed: “There is however no general common law duty to consult persons who may be affected by a measure before it is adopted”); R (BAPIO Action Ltd) v SSHD [2007] EWCA Civ 1139 (no duty to consult before laying immigration rules before Parliament) at §§43-45 (no general public law duty to consult before taking decisions); R (Hillingdon LBC) v Lord Chancellor [2008] EWHC 2683 (Admin) [2009] 1 FCR 1 at §48 (“It is not the law that authorities must necessarily consult those who are liable to be disadvantaged by a proposed decision”); R (British Pregnancy Advisory Service) v Secretary of State for Health and Social Care [2019] EWHC 1397 (Admin) [2019] 1 WLR 5029 at §63 (no duty to consult on question of statutory interpretation) (CA is [2020] EWCA Civ 355 [2020] 1 WLR 3240); R (UNISON) v Secretary of State for Health [2010] EWHC 2655 (Admin) (no duty to consult before promoting Bill to reorganise the NHS). 62.2.2 Triggers for duty of consultation. R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §23 (Lord Wilson: “A public authority’s duty to consult those interested before taking a decision can arise in a variety of ways. Most commonly, as here, the duty is generated by statute. Not infrequently, however, it is generated by the duty cast by the common law upon a public authority to act fairly. The search for the demands of fairness in this context is often illumined by the doctrine of legitimate expectation”). 62.2.3 Express statutory duty to consult. {61.4.2} (express procedural duties); R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 (inadequate consultation), §16 (statutory duty to consult on proposed council tax reduction scheme); R (Juttla) v Hertfordshire Valleys Clinical Commissioning Group [2018] EWHC 267 (Admin) at §16 (breach of statutory duty to consult local authority); R (Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) [2018] ICR 269 at §49 (special statutory duty to consult with a view to reaching agreement with person consulted); R (Bokrosova) v Lambeth LBC [2015] EWHC 3386 (Admin) [2016] PTSR 355 at §77 (statutory duty “in substance, an obligation to consult”). 62.2.4 Implied statutory duty to consult. R (Breckland District Council) v Boundary Committee for England [2009] EWCA Civ 239 [2009] PTSR 1611 at §45 (sufficient elements in statutory scheme to conclude that the Act required public consultation). 62.2.5 Consultation trigger: legitimate expectation/fairness. 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 at §165 (Green J: “In some cases, the duty to consult is generated by statute. However, and not infrequently, it is generated by the duty imposed by the common law on a public authority to act fairly”); R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §35 (Lord Reed: “A duty of consultation will … exist 795

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in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation”); R (Welsh Language Commissioner) v National Savings and Investments [2014] EWHC 488 (Admin) [2014] ACD 95 at §64 (procedural legitimate expectation of consultation of the claimant), §68 (standards of legally adequate consultation applicable); {61.1.18} (procedural legitimate expectation of consultation: promise/practice regarding consultation); {61.1.19} (procedural legitimate expectation of consultation: without a promise/practice regarding consultation). 62.2.6 Consultation trigger: practice. R (Brooke Energy Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWHC 2012 (Admin) at §53 (whether “sufficiently settled and uniform practice”); R (MP) v Secretary of State for Health and Social Care [2018] EWHC 3392 (Admin) at §64 (not sufficient that consulted on other changes), §73 (no settled and uniform practice); {61.1.18} (procedural legitimate expectation of consultation: promise/ practice regarding consultation); {41.2.2} (two sources of a legitimate expectation: promise or practice); {41.2.5} (legitimate expectation based on practice/policy: illustrations. 62.2.7 Consultation trigger: duty of sufficient inquiry. R (FDA) v Minister for the Cabinet Office [2018] EWHC 2746 (Admin) at §93 (whether duty to consult the claimants arose out of duty of sufficient inquiry), §94 (“The test to be applied … is one of rationality”), §97 (“rational for Ministers to conclude that they could decide this question without seeking the claimants’ views”); {51.1.9} (duty of sufficient inquiry: eliciting views). 62.2.8 Consultation trigger: reasonableness duty. Trail Riders Fellowship v Wiltshire County Council [2018] EWHC 3600 (Admin) at §23 (“the decision … not to consult was not a rational decision”). 62.2.9 Consultation trigger: impact/withdrawal of benefit. R (A) v South Kent Coastal CCG [2020] EWHC 372 (Admin) at §57 (Farbey J: “If a public authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult the beneficiaries of that service before withdrawing it”, citing R (LH) v Shropshire Council [2014] EWCA Civ 404 [2014] PTSR 1052 at §21); R (AD) v Hackney LBC [2019] EWHC 943 (Admin) [2019] PTSR 1947 at §85 (“it would be unfair or unlawful for a local authority to withdraw a benefit or service without consulting those affected”; but consultation not required “before reducing funding which will … inevitably risk impacting on … services”); R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 at §49 (consultation duty would arise from “pressing and focused” impact, such that “substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit”); R (Dudley Metropolitan Borough Council) v Secretary of State for Communities and Local Government [2012] EWHC 1729 (Admin) at §65 (duty to consult small identifiable class of persons affected by application of change of policy). 62.2.10 Consultation trigger: voluntary consultation must be legally adequate. R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at §90 (Hickinbottom LJ: “Irrespective of how the duty to consult has been generated, the common law duty of procedural fairness will inform the manner in which the consultation should be conducted”); R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 at §108 (“whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly”); R (Milton Keynes Council) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1575 at §17 (“if [the Secretary of State] did consult, a proper consultation was required”); R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438 at §24 (“whether or not consultation is a legal requirement, if it is embarked upon it must be carried out properly”); R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292, 314G; R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at §28 (“consultation, whether it is a matter of obligation or undertaken voluntarily, requires fairness”); R (Montpeliers & Trevors Association) v City of Westminster [2005] EWHC 16 (Admin) [2006] LGR 304 at §21 (“If a local authority decides to embark upon a non-statutory process of consultation the applicable 796

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principles are no different from those which apply to statutory consultation”); R (Royden) v Wirral Metropolitan Borough Council [2002] EWHC 2484 (Admin) [2003] LGR 290 at §54 (having chosen to consult, must be adequate); R (Capenhurst) v Leicester City Council [2004] EWHC 2124 (Admin) (2004) 7 CCLR 557 at §18 (“irrespective of whether the council was obliged to consult … it did in fact decide to consult … [and] thereby was under an obligation to do so fairly”); R (Whitston) v Secretary of State for Justice [2014] EWHC 3044 (Admin) [2015] 1 Costs LR 35 at §27 (consultation was the permissible chosen mode of conducting a statutorily required review); R (FDA) v Minister for the Cabinet Office [2018] EWHC 2746 (Admin) at §101 (not accepting that “the process on which the parties were embarked was in substance one of consultation”). 62.2.11 Whom to consult. R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §8 (statutory duty to “consult such other persons as it considers are likely to have an interest in the operation of the scheme”), §16 (duty discharged, so far as concerns chosen audience); R (Milton Keynes Council) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1575 at §32 (Pill LJ, rejecting “the submission that a decision-maker can routinely pick and choose whom he will consult. A fair consultation requires fairness in deciding whom to consult”), §38 (here, Secretary of State “was … entitled … to make the consultation a limited one”); Ganga v Commissioner of Police [2011] UKPC 28 at §16 (Commission’s power to consult persons it considers “proper and desirable”, “clearly wide enough” to extend to consulting Commissioner about promotion applicants); R (Liverpool City Council) v Secretary of State for Health [2003] EWHC 1975 (Admin) [2004] LGR 635 at §40 (statutory language giving Secretary of State “considerable scope as to who is consulted”); {61.5.7} (extent of the duty to hear: relevant/affected persons). 62.2.12 Reconsultation: trigger for further consultation. {62.3.11}

62.3 Legally adequate consultation: the Sedley requirements. Public law requires that a consultation exercise: (1) is conducted at a time when the decision-maker’s thinking is at a ‘formative’ stage; (2) affords adequate information and time to allow a proper and informed response; and (3) then involves a conscientious and open-minded consideration of relevant matters. 62.3.1 Standards of legally adequate consultation: a general fairness principle. R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §23 (Lord Wilson: “A public authority’s duty to consult those interested before taking a decision can arise in a variety of ways. … But irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted”). 62.3.2 Legally adequate consultation: the Sedley requirements. R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §25 (Lord Wilson: “In R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168 Hodgson J quashed Brent’s decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, had been unlawful. He said at p 189: ‘Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, … that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.’ Clearly Hodgson J accepted Mr Sedley’s submission. It is hard to see how any of his four suggested requirements could be rejected or indeed improved. … The time has come for this court also to endorse the Sedley criteria. They are, as the Court of Appeal said in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, 126 BMLR 134, at para 9, ‘a prescription for fairness’”); R (Nettleship) v NHS South Tyneside Clinical Commissioning Group [2020] EWCA Civ 46 [2020] PTSR 928 at §26 (“the common law … requires 797

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application of the principles set out in … Gunning … which are that: (i) consultation must be at a time when proposals are still at a formative stage; (ii) the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response; (iii) adequate time must be given for consideration and response; and (iv) the product of consultation must be conscientiously taken into account in finalising any … proposals”); R (British Homeopathic Association) v National Health Service Commissioning Board [2018] EWHC 1359 (Admin) [2018] PTSR 2031 at §39 (“the Sedley criteria”); R (Asbestos Victims Support Groups’ Forum UK) v Lord Chancellor [2020] EWHC 2108 (Admin) at §41 (Bean LJ and Martin Spencer J: “the Sedley requirements”); {62.1.1} (legally adequate consultation: in a nutshell). 62.3.3 Flexi-principles: standards of legally adequate consultation are contextual. R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §26 (Lord Wilson, explaining that: “the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting. … Second, … ‘the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit’”), §78 (importance of context and purpose of consultation); R (Article 39) v Secretary of State for Education [2020] EWHC 2184 (Admin) at §78 (scope of duty to consult “must depend on the circumstances at the time”); R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1004 (concerning a review of effects of a statute) at §62 (Sedley requirements “not directly applicable to a consultation of this kind”). 62.3.4 Statute limiting the required consultation. R (Nettleship) v NHS South Tyneside Clinical Commissioning Group [2020] EWCA Civ 46 [2020] PTSR 928 at §60 (“In this case the statute did limit the subject of the required consultation to realistic and viable options”), citing R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §27 (describing the situation where “the statute does not limit the subject of the requisite consultation”); R (Thomas) v Hywel Dda University Health Board [2014] EWHC 4044 (Admin) [2015] ACD 37 (importance of the statutory context in deciding whether consultation required and its scope). 62.3.5 Legally adequate consultation: at a formative stage. R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074 at §74 (education providers “ought to have been consulted at the policy formulation stage”), §72 (no answer that sent a “minded to refuse” letter, as to the application of the criteria); R (Stephenson) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 519 (Admin) [2019] PTSR 2209 at §58 (Dove J, finding that the defendant was “not undertaking the consultation at a formative stage” and “had no intention of changing his mind”); R (Draper) v Lincolnshire County Council [2014] EWHC 2388 (Admin) [2015] PTSR 769 at §§17-18, 27 (consultation not at a formative stage because “a central element … could not be changed”); R (Dudley Metropolitan Borough Council) v Secretary of State for Communities and Local Government [2012] EWHC 1729 (Admin) at §72 (not at a formative stage where letter invited representations in relation to possible mitigation of effects of decision which had been made); R (Breckland District Council) v Boundary Committee for England [2009] EWCA Civ 239 [2009] PTSR 1611 at §49 (consultation “in stages” not unlawful); R (Parents for Legal Action Ltd) v Northumberland County Council [2006] EWHC 1081 (Admin) [2006] ELR 397 at §36 (phased consultation meaning unlawful exclusion of comments on impact on schools when identifying model of schooling); R (Montpeliers & Trevors Association) v City of Westminster [2005] EWHC 16 (Admin) [2006] LGR 304 at §25 (consultation flawed because an option of central significance had “already been excluded from further consideration”), §29 (fairness required consultation on all the various options); R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at §32 (unfair to exclude an option and deny the only real opportunity to present a case on it); R v North & East Devon Health Authority, ex p Pow (1998) 1 CCLR 280 (duty to consult when proposal at a formative stage, not to wait until it had evolved into a definite solution). 798

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62.3.6 Legally adequate consultation: sufficient explanation/notification.153 Holborn Studios Ltd v Hackney LBC [2020] EWHC 1509 (Admin) at §71 (Dove J: “the material with which the public was provided failed … [the] test of being adequate to enable the member of the public to make a sensible response to the consultation on the application”); R (British Blind and Shutter Association) v Secretary of State for Housing Communities and Local Government [2019] EWHC 3162 (Admin) at §53 (need for “a genuine invitation”), §§55-56 (duty to take “proactive steps” to “identify statutory consultees”), §75 (“Nothing … indicated that it was proposed the ban should extend” as it then did); R (British Gas Trading Ltd) v Gas and Markets Authority [2019] EWHC 3048 (Admin) at §§79-80 (failure to provide consultees with sufficient information); Jobling v Richmond-upon-Thames LBC [2019] EWHC 190 (Admin) at §56 (“not clear what was actually to be consulted upon”); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2018] UKSC 3 [2018] 1 WLR 973 at §61 (consultation not undermined or unfair by absence of mention of fishing rights evidence); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §73 (Leggatt LJ and Carr J: “in judging whether non-disclosure of particular information made a consultation process so unfair as to be unlawful, relevant considerations … include: (1) the nature and potential impact of the proposal put out for consultation; (2) the importance of the information to the justification for the proposal and for the decision ultimately taken; (3) whether there was a good reason for not disclosing the information; and (4) whether consultees were prejudiced by the non-disclosure”), §97 (failure to disclose information was a fundamental flaw which made the consultation so unfair as to be unlawful); R (Stephenson) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 519 (Admin) [2019] PTSR 2209 at §44 (consultation document to be “read and examined in the spirit of the purpose for which it is produced”); R (Jones) v Denbighshire County Council [2016] EWHC 2074 (Admin) [2016] ACD 113 at §§70, 74 (concluding that “the Consultation Document in this case was so inconsistent and unclear about the scope of the consultation exercise, that consultees could not respond intelligently to it”); R (United Company Rusal Plc) v London Metal Exchange [2014] EWCA Civ 1271 [2015] 1 WLR 1375 at §84 (Arden LJ: “The duty to provide sufficient information does not in general extend to providing options or information about proposals which it is not making unless there are very specific reasons for doing so”); R (London Criminal Courts Solicitors Association) v Lord Chancellor [2014] EWHC 3020 (Admin) [2015] 1 Costs LR 7 at §50 (Burnett J: “In the context … of a decision which would so profoundly affect the way in which the market in criminal legal aid operates, indeed pose a threat to the continued existence of many practices, … it was … unfair to refuse to allow those engaged in the consultation process to comment upon the two reports”); R (Save our Surgery Ltd) v Joint Committee of Primary Care Trusts [2013] EWHC 439 (Admin) [2013] ACD 70 at §117 (Nichola Davies J: “I am satisfied that fairness did require disclosure of the sub-scores to enable Leeds to provide a properly focused and meaningful response”); R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §§27-28, 31-32, 39, 41 (consultation legally inadequate because of failure to identify alternatives and the reasons for the preferred choice); R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) [2012] 1 WLR 838 at §§30-33 (consultation process legally defective because true reasons for proposal not disclosed); R (Robin Murray & Co) v Lord Chancellor [2011] EWHC 1528 (Admin) at §46 (public authority under no general duty to circulate representations made by those who respond to consultation), §47 (nor to circulate information as to its own developing consideration of the issues); R (JM) v Isle of Wight Council [2011] EWHC 2911 (Admin) (2012) 15 CCLR 167 at §118 (no detail about relevant numbers, costs, savings or services); R (Law Society) v Legal Services Commission [2010] EWHC 2550 (Admin) at §83 (consultation failed to make clear the importance of accreditation); R (Devon County Council) v Secretary of State for Communities and Local Government [2010] EWHC 1456 (Admin) [2011] LGR 64 at §68 (“sufficient information to enable an intelligible response requires the consultee to know not just what the proposal is in whatever detail is necessary, but also the factors likely to be of substantial importance to the decision, or the basis upon which the

153The

equivalent paragraph in a previous edition was relied on in TalkTalk v Ofcom [2012] CAT 1 at §136(g)(ii).

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decision is likely to be taken”); R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438 at §66 (unfair not to disclose fully executable version of model); R (Lloyd) v Dagenham LBC [2001] EWCA Civ 533 (2001) 4 CCLR 196 at §13 (need “candid disclosure of the reasons for what is proposed”); R v Secretary of State for Transport, ex p Richmond Upon Thames LBC [1995] Env LR 390, 405 (misleading consultation paper); R v Lambeth LBC, ex p N [1996] ELR 299 (needed to explain timetable and alternative arrangements); R v Secretary of State for Education, ex p Bandtock [2001] ELR 333 at §37 (claimant could have checked if something unclear); R (Beale) v Camden LBC [2004] EWHC 6 (Admin) [2004] LGR 291 at §19 (no need to articulate “both sides of the argument”); R (Capenhurst) v Leicester City Council [2004] EWHC 2124 (Admin) (2004) 7 CCLR 557 at §46 (need to explain criteria and key factors); R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) (unreasonable or unfair to exclude one airport from consultation on regional runway capacity); {61.6.16} (claimant relying on duty to inform/ disclose information to a third party). 62.3.7 Legally adequate consultation: adequate time. R (Joicey) v Northumberland County Council [2014] EWHC 3657 (Admin) [2015] PTSR 622 at §48 (publication of relevant information “was not effected in a timely manner”); R (Luton Borough Council) v Secretary of State for Education [2011] EWHC 217 (Admin) [2011] ELR 222 at §94 (Holman J, identifying “no pressing reason” why claimants could not have been given “a short opportunity (perhaps only of three weeks or so) to press their case”); R v Secretary of State for Education and Employment, ex p National Union of Teachers 14 July 2000 unreported (four days wholly insufficient); R v Secretary of State for Wales, ex p Williams [1997] ELR 100 (no duty to prolong consultation to allow comments on other people’s comments); R (Amvac Chemical UK Ltd) v Secretary of State for Environment, Food and Rural Affairs [2001] EWHC Admin 1011 at §63 (despite urgency, period of notification too short prior to suspension of use of a pesticide). 62.3.8 Legally adequate consultation: conscientious consideration. 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 at §168 (Green J: “The fourth ‘Sedley’ principle is that the product of consultation must conscientiously be taken into account by the decision-maker. This reflects two broader principles (which apply also outside the context of consultations). First, a decision must be based on a reasonable or rational view of the evidence it is said to be based upon. This is a principle of long standing. … If the final decision adopted bears no sensible relationship to the evidence relied on then the reasoning is unreasonable or irrational but, in a consultation context, it may be said also that the ‘product’ of the consultation (the evidence) has not ‘conscientiously’ been ‘taken into account’. The second broader principle is that the outcome of the consultation must not be predetermined. If it is then the decision-maker will not have acted ‘fairly’ (the leitmotif of the principle governing consultations) and will not have ‘conscientiously’ taken into account the evidence”); R (Horeau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) [2019] 1 WLR 4105 [2019] 1 WLR 4105 (DC) at §275 (no “failure conscientiously to take into account the responses to the … consultation”) (not pursued in CA: [2020] EWCA Civ 1010 at §86); R (Stephenson) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 519 (Admin) [2019] PTSR 2209 at §58 (defendant “did not conscientiously consider the fruits of the consultation exercise”); R (WX) v Northamptonshire County Council [2018] EWHC 2178 [2018] ACD 123 at §75 (“the product of consultation was not conscientiously taken into account in subsequent decisions”); R (Kohler) v Mayor’s Office for Policing and Crime [2018] EWHC 1881 (Admin) [2018] ACD 102 at §§67-18 (failure to consider an aspect raised in the consultation responses); R (Morris) v Newport City Council [2009] EWHC 3051 (Admin) at §§37-38 (consultation responses not conscientiously taken into account, where consultee association’s main and biggest point not addressed or referred to). 62.3.9 Latitude in consultation. {62.1.4} 62.3.10 Consultation and unfairness: ‘so unfair as to be unlawful’. {62.1.5} 800

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62.3.11 Reconsultation: trigger for further consultation. R (Horeau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) [2019] 1 WLR 4105 [2019] 1 WLR 4105 (DC) at §319 (“If there is a fundamental change of circumstance …, there will be a duty to reconsult”, referring to Elphinstone) (point not pursued in CA: [2020] EWCA Civ 1010 at §86); R (Nettleship) v NHS South Tyneside Clinical Commissioning Group [2020] EWCA Civ 46 [2020] PTSR 928 at §43 (“there is no duty to re-consult unless there is a ‘fundamental difference’ that has arisen owing to [a] change in circumstances”); R (EU Lotto Ltd) v Secretary of State for Digital Culture Media and Sport [2018] EWHC 3111 (Admin) [2019] 1 CMLR 41 at §108 (point which arose only in the legal challenge not a basis for impugning the consultation, but addressed in the proportionality analysis); R (Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) [2018] ICR 269 at §§55-56 (failure to reconsult on amended terms of scheme as actually made breaching special statutory duty to consult with a view to reaching agreement); R v Secretary of State for Wales, ex p Williams [1997] ELR 100 (no duty to extend consultation to allow everybody to comment on everybody else’s comments); R (Milton Keynes Council) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1575 at §38 (Secretary of State “entitled … to decide that there was no evidence of significant new issues arising, which required fuller consultation”); R (Devon County Council) v Secretary of State for Communities and Local Government [2010] EWHC 1456 (Admin) [2011] LGR 64 at §81 (“last minute change of stance” with which consultees had “no opportunity or reason … to anticipate and deal”, “adopted at the very end [and] on its face fundamentally different”), §98 (“unfair and deprived the [claimants] of the opportunity to make their case”), §103 (“entitled to change the criteria or to have none and then to reconsider the same proposal” as long as “reconsulting on that new basis”); R (Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) (2003) 6 CCLR 251 at §45 (no duty to reconsult unless “fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt”), §57 (no duty to consult further on amended proposal emerging in the consultation process itself); R (Carton) v Coventry City Council (2001) 4 CCLR 41, 44C-E (further consultation required where fundamental change); R (Elphinstone) v Westminster City Council [2008] EWCA Civ 1069 [2009] ELR 24 at §§62-63 (not a “fundamental” or “significant” change). 62.3.12 Error/flaw by/relating to consultee/adviser. {65.1.12} (error/misdirection by consultee); {65.1.14} (public authority decision vitiated by third-party error/flaw).

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P63 Bias. A public authority decision-maker must not act if having a direct interest in the outcome, actual bias, or in circumstances giving rise objectively to a real possibility of bias. 63.1 Automatic disqualification 63.2 Actual bias 63.3 Apparent bias

63.1 Automatic disqualification. Where a decision-maker is a party to the matter, or has a direct interest (pecuniary or not) in its outcome in common with a party, this presumed bias is an automatic disqualification, absent waiver. 63.1.1 Automatic disqualification in a nutshell. Davidson v Scottish Ministers [2004] UKHL 34 [2004] HRLR 948 at §6 (Lord Bingham: “judicial tribunals established to resolve issues arising between citizen and citizen, or between the citizen and the state, should be independent and impartial. This means that such tribunals should be in a position to decide such issues on their legal and factual merits as they appear to the tribunal, uninfluenced by any interest, association or pressure extraneous to the case. Thus a judge will be disqualified from hearing a case (whether sitting alone, or as a member of a multiple tribunal) if he or she has a personal interest which is not negligible in the outcome, or is a friend or relation of a party or a witness, or is disabled by personal experience from bringing an objective judgment to bear on the case in question. … What disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge’s judgment”); R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 132G-133C (“if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then [that fact] is sufficient to cause his automatic disqualification … without any investigation into whether there was a likelihood or suspicion of bias”); Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (analysing the position as to disqualifying interests); Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113, 118A-C. 63.1.2 Party. R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 133B-G (judge who is a party to the suit automatically disqualified); Meerabux v Attorney General of Belize [2005] UKPC 12 [2005] 2 AC 513 at §24 (automatic disqualification where “active involvement in the institution of the particular proceedings”). 63.1.3 Direct pecuniary or proprietary interest. R (United Cabbies Group (London) Ltd) v Westminster Magistrates’ Court [2019] EWHC 409 (Admin) at §36(i) (Lord Burnett CJ and Supperstone J: “Where a judge has a direct pecuniary or proprietary interest in the outcome of a case, he or she is automatically disqualified, whether or not that interest gives rise to a reasonable apprehension of bias”), §36(iii) (need “more than a ‘tenuous connection’”); R v Gough [1993] AC 646, 661B-F (Lord Goff, referring to the situation “where a person sitting in a judicial capacity has a pecuniary interest in the outcome of the proceedings”: “The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand”); Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759 (setting aside decision where Lord Chancellor had an interest); R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 135E (disqualification where “a judge … is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit”). 63.1.4 Automatic disqualification: other. R (Kaur) v Institute of Legal Executives Appeal Tribunal [2011] EWCA Civ 1168 [2012] 1 All ER 1435 at §44 (Rix LJ, querying whether automatic disqualification and apparent bias in truth separate doctrines), §45 (suggested as a unifying principle: “that judges should not sit or should face recusal or disqualification

P63 Bias

where there is a real possibility on the objective appearance of things, assessed by the fair-minded and informed observer (a role which ultimately, when these matters are challenged, is performed by the court), that the tribunal could be biased”), §46 (not necessary here to choose between the two doctrines); Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at §10 (‘de minimis’ exception to automatic disqualification rule, where potential effect of judge’s interest so small as to be incapable of affecting decision one way or the other); R v London Metal Exchange Ltd, ex p Albatros Warehousing BV 31 March 2000 unreported at §35 (financial gain to committee from imposing fine too remote and within de minimis principle); R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 325b-c (“the principle that a person is disqualified from participation in a decision if there is a real danger that he or she will be influenced by a pecuniary or personal interest in the outcome, is of general application in public law and is not limited to judicial or quasi-judicial bodies or proceedings”); R v Holderness Borough Council, ex p James Robert Developments Ltd [1993] 1 PLR 108 (no direct pecuniary interest in planning decision where councillor a rival builder); R v Kirklees Metropolitan Borough Council, ex p Beaumont [2001] ELR 204 (councillors disqualified from voting because governors of a school which stood to benefit from decision to close another school); R (Richardson) v North Yorks County Council [2003] EWCA Civ 1860 [2004] 1 WLR 1920 (councillors’ duty to withdraw under Code of Conduct where having a prejudicial interest). 63.1.5 Automatic disqualification and waiver etc. {31.3.7} (waiver: actual/apparent bias/ disqualification).

63.2 Actual bias.154 Actual bias by a public authority decision-maker is a conclusive vitiating factor. Like bad faith, actual bias is rare and difficult to prove. There are always available to a claimant the alternatives of improper motive and apparent bias as grounds for judicial review. 63.2.1 Actual bias. R v Gough [1993] AC 646, 661G (Lord Goff: “if actual bias is proved, that is an end of the case; the person concerned must be disqualified”); In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at §38 (actual bias explained as meaning decision-maker either (a) influenced by partiality or prejudice or (b) actually prejudiced); R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139, 151j, 162a-b (actual and conscious bias); O’Reilly v Mackman [1983] 2 AC 237, 276E (need for prison visitors to “enter upon the inquiry without any pre-conceived personal bias against the prisoner”); Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113, 117H (“actual bias will of course always disqualify a person from sitting in judgment”); R v SSHD, ex p Fayed [2001] Imm AR 134 (court rejecting argument that Home Secretary was actually biased). 63.2.2 Actual bias is rare. R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin) [2018] PTSR 142 at §154 (Green J: “proof of actual bias may be exceedingly difficult to establish. It involves the drawing of conclusions about a person’s state of mind and whether it is affected by irrelevant considerations and pressures. It also involves drawing a causal connection between the biased state of mind and the decision. … However, the evidential difficulties inherent in proving a case of actual bias is the very reason why, as a ground of challenge, it invariably plays second fiddle to claims based upon apparent bias”); Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at §3 (actual bias cases rare, partly because difficult to prove). 63.2.3 Bad faith. {52.1} 63.2.4 Improper motive. {52.2} 63.2.5 Actual bias and waiver. {31.3.7} (waiver: actual/apparent bias/disqualification).

154The

equivalent paragraph in a previous edition was relied on in Chau Siu Woon [2010] HKCA 107 at §9 (Hon Cheung JA).

803

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63.3 Apparent bias. The law on apparent bias asks whether the relevant circumstances, as identified by the reviewing Court, would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased. Appearances matter and justice must be seen to be done. 63.3.1 Apparent bias: fair-minded and informed observer/real possibility. R (United Cabbies Group (London) Ltd) v Westminster Magistrates’ Court [2019] EWHC 409 (Admin) at §36(v) (Lord Burnett CJ and Supperstone J: “[the] test … is ‘whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’”); Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 at §17 (Leggatt LJ: “the test for apparent bias involves a two stage process. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased”), §18 (“(1) The fair-minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent. … (2) The facts and context are critical, with each case turning on ‘an intense focus on the essential facts of the case’. … (3) If the test of apparent bias is satisfied, the judge is automatically disqualified from hearing the case and considerations of inconvenience, cost and delay are irrelevant”); R (Legard) v Kensington and Chelsea RLBC [2018] EWHC 32 (Admin) [2018] PTSR 1415 at §133 (relevant principles distilled); based on Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 at §103, applied in R (Kombou) v Wood Green Crown Court [2020] EWHC 1529 (Admin) at §65; Belize Bank Ltd v Attorney General of Belize [2011] UKPC 36 at §34; Yiacoub v The Queen [2014] UKPC 22 [2014] 1 WLR 2996 at §11; Helow v SSHD [2008] UKHL 62 [2008] 1 WLR 2416 at §39; R v Abdroikov [2007] UKHL 37 [2007] 1 WLR 2679 at §15; R (Al-Hasan) v SSHD [2005] UKHL 13 [2005] 1 WLR 688 at §30; Davidson v Scottish Ministers [2004] UKHL 34 [2004] HRLR 948 at §7; Lawal v Northern Spirit Ltd [2003] UKHL 35 [2004] 1 All ER 187 at §20. The previous test at common law was in R v Gough [1993] AC 646, 670F (asking “whether, having regard to [the] circumstances, there was a real danger of bias”). 63.3.2 Apparent bias: illustrations.155 R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §66 (language of draft report disclosing apparent bias by predetermination); Mitchell v Georges [2014] UKPC 43 at §44 (apparent bias from content of interim report); R (Mackaill) v Independent Police Complaints Commission [2014] EWHC 3170 (Admin) [2015] ACD 19 (apparent bias arising from previous statements); R (Kaur) v Institute of Legal Executives Appeal Tribunal [2011] EWCA Civ 1168 [2012] 1 All ER 1435 (vice-president of ILEX having inevitable interest in disciplinary policy and so unable to sit on ILEX disciplinary or appeal tribunal); R (Pounder) v HM Coroner for North and South Districts of Durham and Darlington [2010] EWHC 328 (Admin) (coroner should recuse himself from hearing fresh inquest, in the light of statements made in defending judicial review to quash previous inquest); R (Al-Le Logistics Ltd) v Traffic Commissioner for the South Eastern and Metropolitan Traffic Area [2010] EWHC 134 (Admin) at §104 (Commissioner’s past failings meaning ought not to have continued to deal with the matter); R (Ortona Ltd) v Secretary of State for Communities and Local Government [2009] EWCA Civ 863 [2010] 1 P & CR 293 at §35 (inspector hearing appeal had been employed by the local authority, and involved in formulating the transport policies which were in issue in the appeal); R v Abdroikov [2007] UKHL 37 [2007] 1 WLR 2679 (jury including serving officer, in a criminal trial involving conflict of evidence between police and accused); R (Al-Hasan) v SSHD [2005] UKHL 13 [2005] 1 WLR 688 (deputy governor conducting disciplinary hearing on charge of disobeying order given in his presence); Lawal v Northern Spirit Ltd [2003] UKHL 35 [2004] 1 All ER 187 (EAT hearing involved Counsel for a party and a lay member of the tribunal, having previously sat together as a tribunal in an earlier case);

155The

equivalent and following paragraph in a previous edition was relied on in R (National Association of Memorial Masons) v Cardiff City Council [2011] EWHC 922 (Admin) at §39 (Blake J).

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P63 Bias

Davidson v Scottish Ministers [2004] UKHL 34 [2004] HRLR 948 (Scottish appellate judge had previously stated views on the issue when acting as Lord Advocate in promoting the Scotland Bill). 63.3.3 No apparent bias: illustrations. R (Warner) v Secretary of State for Justice [2020] EWHC 1894 (Admin) at §79 (no lack of sufficient objective independence in the arrangements for the Criminal Cases Review Commission); R (Roberts) v Leicester Crown Court [2020] EWHC 1783 (Admin) at §§46, 54 (court was right not to recuse itself); R (United Cabbies Group (London) Ltd) v Westminster Magistrates’ Court [2019] EWHC 409 (Admin) at §§45-48 (no apparent bias where magistrate unaware of husband’s work for investor in party); Lone v Secretary of State for Education [2019] EWHC 531 (Admin) [2019] ELR 222 at §16 (no apparent bias in chief executive of Teaching Regulation Agency deciding for the Secretary of State to accept a recommendation of the Agency’s professional conduct panel); R (Legard) v Kensington and Chelsea RLBC [2018] EWHC 32 (Admin) [2018] PTSR 1415 (no apparent bias where member of forum promoting neighbourhood plan given access to local authority officers); Turner v Secretary of State for Communities and Local Government [2015] EWCA Civ 582 (no apparent bias in planning inspector’s conduct of inquiry); O’Neill v HM Advocate [2013] UKSC 36 [2013] 1 WLR 1992 (no apparent bias from trial judge’s comments); Belize Bank Ltd v Attorney General of Belize [2011] UKPC 36 (no apparent bias where Minister had made public comments about bank’s alleged irregularities and had also discharged statutory function of appointing members to the administrative appeal board to hear the bank’s appeal); Helow v SSHD [2008] UKHL 62 [2008] 1 WLR 2416 (judge’s membership of International Association of Jewish Lawyers and Jurists not giving rise to apparent bias in relation to dismissal of PLO-linked Palestinian’s asylum claim); Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 at §105 (no apparent bias in district auditor holding press conference to state provisional views publicly); Meerabux v Attorney General of Belize [2005] UKPC 12 [2005] 2 AC 513 (no apparent bias where Bar Association member sitting on disciplinary council hearing complaints against judge); Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 [2006] 1 WLR 781 (no apparent bias where disability appeal tribunal included doctor who had reported as examining medical practitioner in other cases); Prince Jeffri Bolkiah v Brunei Darussalam [2007] UKPC 62 (no apparent bias preventing Chief Justice from hearing proceedings brought by Government against Prince). 63.3.4 Apparent bias by predetermination. R (Electronic Collar Manufacturers Association) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin) [2020] ACD 4 at §140 (“a decision may be impugned on the grounds of an appearance of pre-determination”, where the Court considers that “a fair-minded and informed observer would think that the evidence gives rise to real possibility or risk that the decision-maker had pre-determined the matter, in the sense of closing his mind to the merits of the issue to be decided”); R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §§57, 66 (apparent bias by predetermination). 63.3.5 Real possibility test and Art 6 independent and impartial tribunal. {59.5.8} (Article 6: independent and impartial tribunal); Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 at §103 (articulating a unified common law and Art 6 test); R v Abdroikov [2007] UKHL 37 [2007] 1 WLR 2679 at §17 (apparent bias at common law and Art 6); Davidson v Scottish Ministers [2004] UKHL 34 [2004] HRLR 948 at §47 (“The word ‘bias’ is used as a convenient shorthand”; but “the essence of it is captured in the Convention concept of impartiality”). 63.3.6 Apparent bias: the fair-minded and informed observer. {63.3.1} (apparent bias: fair-minded and informed possibility/real observer); {45.2.8} (the ‘reasonable observer’ as a general theme); Almazeedi v Penner [2018] UKPC 3 at §§20, 32 (attributes of the fairminded and informed observer, applying Helow v SSHD [2008] UKHL 62 [2008] 1 WLR 2416); Archie v Law Association of Trinidad and Tobago [2018] UKPC 23 at §35 (“the fairminded and informed observer is also a sensible and rational person”); Healthcare at Home Ltd v Common Services Agency [2014] UKSC 49 [2014] PTSR 1081 at §§1-3 (one of those “means of describing a standard applied by the court”); Belize Bank Ltd v Attorney General 805

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of Belize [2011] UKPC 36 at §36 (notional observer presumed to have “full knowledge of the material facts and fair-mindedness”), §37 (as to state of knowledge that observer presumed to have); Satnam Millenium Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 2631 (Admin) at §197 (Court looks at all the “facts as it finds on the evidence”); Virdi v Law Society [2010] EWCA Civ 100 [2010] 1 WLR 2840 at §§37-44 (facts known to the fair-minded and informed observer not limited to those in the public domain); Lawal v Northern Spirit Ltd [2003] UKHL 35 [2004] 1 All ER 187 at §14 (“the fairminded and informed observer” taken to “adopt a balanced approach … ‘neither complacent nor unduly sensitive or suspicious’”); Reza v General Medical Council [1991] 2 AC 182, 194B (“someone familiar with the procedure of the committee”); Meerabux v Attorney General of Belize [2005] UKPC 12 [2005] 2 AC 513 at §25 (knowledge of “all the facts which put … membership of the Bar Association into its proper context”). 63.3.7 Apparent bias and appearances/public confidence: justice seen to be done. Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629 at §1 (Lady Hale, referring to the “fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”, as applicable “in the context of an appearance of bias”, and beyond); Davidson v Scottish Ministers [2004] UKHL 34 [2004] HRLR 948 at §7 (Lord Bingham: “It has … been accepted for many years that justice must not only be done but must also be seen to be done”), §46 (Lord Hope); Lawal v Northern Spirit Ltd [2003] UKHL 35 [2004] 1 All ER 187 at §14 (Lord Steyn, referring to the Porter test as having “at its core the need for ‘the confidence which must be inspired by the courts in a democratic society’”), §22; Modahl v British Athletic Federation [2001] EWCA Civ 1447 [2002] 1 WLR 1192 at §66 (appearance of fairness “clearly an appropriate concept … for the supervision of public bodies”). 63.3.8 Materiality and apparent bias: operative bias. R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin) [2018] PTSR 142 at §165 (no risk of apparent bias, on the part of an external solicitor involved in investigation, having an adverse influence on the standards committee’s decision-making process); R (Al-Hasan) v SSHD [2005] UKHL 13 [2005] 1 WLR 688 at §43 (Lord Brown: “once proceedings have been successfully impugned for want of independence and impartiality on the part of the tribunal, the decision itself must necessarily be regarded as tainted by unfairness and so cannot be permitted to stand”); Modahl v British Athletic Federation [2001] EWCA Civ 1447 [2002] 1 WLR 1192 (no material apparent bias); Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at §18 (relevant to ask whether decision-maker aware of matter relied on as appearing to undermine his impartiality); R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 337a-h (at the relevant moment, “the ground of bias was no longer operative”); In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at §99 (real danger of bias by one member of Restrictive Practices Court infecting all three members). 63.3.9 Apparent bias and witness statement evidence. {17.3.13} (witness statements of decision-makers relating to bias). 63.3.10 Apparent bias and waiver. {31.3.7} (waiver: actual/apparent bias/disqualification).

806

P64 Reasons. Public authorities are often required to give reasons, and always required to make the reasons they do give adequate. 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

64.1 Importance of reasons. Administrative law recognises a strong principled basis for requiring public authorities adequately to explain the reasons why they acted as they did. The discipline of providing reasons assists the claimant, the Court and the defendant body itself (by focusing its mind). The conventional approach holds that there is no general duty, but there are a vast number of situations where a duty arises. There are hints that the law is arriving at a position where: (a) there is no universal duty to give reasons; but (b) a duty to give reasons is the principled norm, subject to exceptions. 64.1.1 No general/universal common law duty to give reasons. R (JJ Management LLP) v HMRC [2019] EWHC 2006 (Admin) [2020] QB 619 at §85 (Nugee J: “still the law” that “the law does not recognise a general duty to give reasons for an administrative decision”) (CA is [2020] EWCA Civ 784 [2020] 3 WLR 545); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §183 (“there is no general right at common law for persons directly affected by administrative decisions to be given reasons for them”); Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §29 (“there is no general obligation to give reasons at common law”); R (Birmingham City Council) v Birmingham Crown Court [2009] EWHC 3329 (Admin) [2010] 1 WLR 1287 at §46 (Beatson J: “Although English law may be inching towards a general duty to give reasons … it has not yet got to the stage where there is such a duty”); Stefan v General Medical Council [1999] 1 WLR 1293, 1300G (“the established position of the common law [is] that there is no general duty, universally imposed on all decision-makers”); R (Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1311 [2009] 3 All ER 539 at §8 (no general duty to give reasons); R v SSHD, ex p Doody [1994] 1 AC 531, 564E-F (“the law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied”); Rey v Government of Switzerland [1999] 1 AC 54, 66B-C (Lord Steyn); R v Kensington and Chelsea Royal LBC, ex p Grillo (1996) 28 HLR 94, 105 (at present no “general obligation on administrative authorities to give reasons for their decisions”); JUSTICE Report, Administration Under Law (1971) at 23 (“No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions”). 64.1.2 Momentum towards a general duty to give reasons. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §31 (Elias LJ: “There are certain categories of case where the courts have required reasons to be given at common law, although the jurisprudence is relatively under-developed, perhaps because statutory requirements are so common”), §32 (“There is a strong analogy between the need to give reasons in order not to frustrate a statutory right of appeal and the need to do so in order not to frustrate a potential application for judicial review”); North Range Shipping Ltd v Seatrans Shipping Corp [2002] EWCA Civ 405 [2002] 1 WLR 2397 at §15 (Peter Gibson, Aldous and Tuckey LJJ: “the trend of the law has been towards an increased recognition of the duty to give reasons”); Stefan v General Medical Council [1999] 1 WLR 1293, 1301A-B (Lord Clyde: “There is certainly a strong argument for the view that what were once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be

GROUNDS FOR JUDICIAL REVIEW

taking on the appearance of exceptions”), 1300G (“The trend of the law has been towards an increased recognition of the duty upon decision-makers of many kinds to give reasons. This trend is consistent with current developments towards an increased openness in matters of government and administration. But the trend is proceeding on a case by case basis”); R v Kensington and Chelsea Royal LBC, ex p Grillo (1996) 28 HLR 94, 105 (Neill LJ: “There may come a time when English law does impose a general obligation on administrative authorities to give reasons for their decisions”); R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242, 259A-B (“There are certainly good arguments of public law and of public administration in favour of such a rule, but it is axiomatically not, or not yet, part of our law. It remains to be seen what the ‘continuing momentum in administrative law towards openness of decision-making’ … will bring”); R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 at §39 (Sedley LJ, referring to academic analysis as demonstrating “the distance still to be travelled in this regard between the present state of English authority and a principled framework of public decision-making”); R v Secretary of State for Education, ex p G [1995] ELR 58, 67E-F (“whilst there is a spectrum of factual situations ranging from those where no reasons are required at all on the one hand, to those where the circumstances are such as to cry out for full and detailed reasons, the general approach has been to require there to be sufficient reasons to be given to determine whether or not the decision-maker has asked the right question and approached it in an apparently rational way”); R v London Borough of Lambeth, ex p Walters (1994) 26 HLR 170, 178 (Sir Louis Blom-Cooper QC: “It seems to me that English law has now arrived at the point where there is at least a general duty to give reasons whenever the statutorily-impregnated administrative process is infused with the concept of fair treatment to those potentially affected by administrative action”), but see Grillo at 104-106 and R v London Borough of Islington, ex p Hinds (1995) 27 HLR 65 (cf CA at (1996) 28 HLR 302); R v Aylesbury Vale District Council, ex p Chaplin The Times 23 July 1996 (Keene J, criticising the ill-defined incremental exceptions from the decision-maker’s point of view); R v Ministry of Defence, ex p Murray [1998] COD 134 (no general duty to give reasons, but a perceptible trend towards openness in administrative decision-making). 64.1.3 A new norm, with exceptions. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §30 (Elias LJ: “it may be more accurate to say that the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so”), referring to Stefan v General Medical Council [1999] 1 WLR 1293, 1301A-B (Lord Clyde: “There is … a strong argument for the view that what were once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions”); R v Secretary of State for Health, ex p Scherer [1998] EuLR 1, 16G-H (Judge J referring to the requirements “already well understood in judicial review proceedings, that administrative authorities should normally provide an account of the reasons for their decisions”); R v DPP, ex p Manning [2001] QB 330, at §33 (“wrong in principle to require the citizen to make a complaint of unlawfulness against the [DPP] in order to obtain a response which good administrative practice would in the ordinary course require”). 64.1.4 The importance of transparency: defendant’s duty of candour/cooperation. {10.4} (defendant/interested party’s duty of candour). 64.1.5 Importance of reasons documents in judicial review.156 DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301 at §§18, 23 (defendant’s affidavit evidence and disclosure of internal documents describing approach taken), §5 (“As the case progressed and the reasons … became clear, the emphasis … shifted … to an attack on PSNI’s failure to recognise and make use of legal powers available to it”), §70 (judicial review succeeding for exposed misappreciation of legal powers); Board of Education v Rice

156The

equivalent and subsequent paragraphs in a previous edition were relied on in Capital Rich v Town Planning Board [2007] HKCA 14 at §97.

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[1911] AC 179, 185 (misdirection apparent from reasoned decision document); Edwards v Bairstow [1956] AC 14, 36 (reasoned determination revealing irrationality constituting error of law); Kanda v Government of Malaya [1962] AC 322, 335-336 (report, wrongly relied on, only coming to light on fourth day of trial); Ridge v Baldwin [1964] AC 40, 110 and 137 (grounds relied upon in reasons triggering the applicability of natural justice); Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997, 1031D, 1049C; 1054A; 1058G and 1059F (reasons scrutinised and found to reveal unlawful approach); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171G-H and 173H (error appearing from reasons voluntarily disclosed); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065C (scrutiny of reasons revealing misdirection/irrelevancy); R v Commission for Racial Equality, ex p Hillingdon LBC [1982] AC 779, 790F, 791E-F (“candid” admission showing ultra vires); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1161H, 1171F-G (written evidence showing that matters were considered but not put); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309 (authorities’ explanation disclosing error of law); R v Tower Hamlets LBC, ex p Chetnik Developments Ltd [1988] AC 858, 878E-H (reasons showing misdirection/irrelevancy); R v DPP, ex p Manning [2001] QB 330 (note showing that relevant matters not considered); R v DPP, ex p Jones 23 March 2000 unreported (although DPP reciting correct test, read as a whole, reasons indicating had applied a different test); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 (unlawful approach becoming clear from documents disclosed following court order); R (Kelsall) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWHC 459 (Admin) at §35 (“if [the] reasons do not bear scrutiny they add substance to the argument that the provisions of the Order are so flawed as to be irrational and unfair”); {64.1.7} (judicial review is disarmed absent reasons). 64.1.6 Effective judicial review: providing reasons/materials and the ‘presumption of regularity’. {10.1.15} 64.1.7 Judicial review is disarmed absent reasons.157 R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at §122 (Hickinbottom LJ: “The rule of law requires effective access to justice. Therefore, generally, unless (eg) excluded by Parliament, there must be a proper opportunity to challenge an administrative decision in the court system. As a consequence, unless rendered impractical by operational requirements, sufficient reasons must be given for an administrative decision to allow a realistic prospect of such a challenge. Where the reasons do not enable such a challenge, they will be legally inadequate”), §127 (“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 (NBV) v Parole Board [2018] EWHC 234 (Admin) at §6 (“essential” for reasons and dossier to be disclosed, in order to determine the rationality challenge); Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §31 (Elias LJ: “categories of case where the courts have required reasons to be given at common law” including “where the failure to give reasons may frustrate a right of appeal”), §32 (“ there will be many cases where it is in the public interest that affected parties should be able to hold the administration to account for their decisions, and in the absence of a right of appeal, the only way to do so is by an application for judicial review. Where the nature of the decision is one which demands effective accountability, the analogy with a right of appeal is surely apt”); Nzolameso v Westminster City Council [2015] UKSC 22 [2015] PTSR 549 at §32 (“Nor, without a properly explanation, can the court know whether the authority have properly fulfilled their statutory obligations”); R v Nat Bell Liquors Ltd [1922] 2 AC 128, 159 (the absence of reasons “did not stint the jurisdiction of the Queen’s Bench, or alter the actual law of certiorari”, but: “What it did was to disarm its exercise”); O’Reilly v Mackman [1983]

157The

equivalent paragraph in a previous edition was relied on in Lister Assets v CEC [2013] HKCA 209 at §36 (Hon Fok JA).

809

GROUNDS FOR JUDICIAL REVIEW

2 AC 237, 277F-G (judicial review was “liable to be defeated by the decision-making body if it gave no reasons for its determination”); In re A Company [1981] AC 374, 383C-E (statutory duty to give reasons “facilitates the detection of errors of law”); {42.2.4} (inferences and lack of candour/reasons). 64.1.8 Purposes of a reasons duty: general. Alibkhiet v Brent LBC [2018] EWCA Civ 2742 at §51 (Lewison LJ: “the purpose of giving reasons is twofold: first so that the parties can know what was decided and why; and second so that the court may, if necessary, decide whether a decision-maker has made an error of law”); Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §26 (Elias LJ: “There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual’s interest in understanding – and perhaps thereby more readily accepting – why a decision affecting him has been made”); R v London Borough of Islington, ex p Hinds (1995) 27 HLR 65, 75 (adequate reasons informing claimant, court and third parties, enhancing the machinery of government, public confidence and as a self-disciplining exercise); Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 [2003] 1 WLR 1763 at §7 (Lord Steyn: “First, they impose a discipline … which may contribute to such [decisions] being considered with care. Secondly, reasons encourage transparency. … Thirdly, they assist the courts in performing their supervisory function if judicial review proceedings are launched”), §56 (Lord Millett). 64.1.9 Reasons duty focuses the decision-maker’s mind. R (Macrae) v Herefordshire District Council [2012] EWCA Civ 457 at §41 (Pill LJ: “a requirement to give reasons concentrates the mind. If it is fulfilled the resulting decision is much more likely to be soundly based on the evidence than if it is not”); R v Brent LBC, ex p Baruwa (1996) 28 HLR 361 (Roger Toulson QC), 373 (“when people who make decisions have to give their reasons it improves the decision making process, both from the point of view of the person making the decision and of the person who is going to be affected by it”; CA is at (1997) 29 HLR 915); R v Ministry of Defence, ex p Murray [1998] COD 134 (duty to give reasons concentrates the decision-maker’s mind on the right questions and demonstrates that the issues have been conscientiously addressed); Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381G-H (“a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not”); R (Chisnell) v Richmond Upon Thames LBC [2005] EWHC 134 (Admin) at §42 (“useful exercise for those who reach decisions to go through the intellectual exercise which the drafting of summary reasons involves”). 64.1.10 Reasons duty informs those affected. R (Wye Valley Action Association Ltd) v Herefordshire Council [2011] EWCA Civ 20 [2011] PTSR 1011 at §47 (reasons given were “sufficient to enable the association to reach an informed decision whether to challenge the opinion for legal error”); Union of Construction and Allied Trades Technicians v Brain [1981] IRLR 225, 228 (reasons serve to “tell the parties in broad terms why they lost or, as the case may be, won”); R v University of Cambridge, ex p Evans [1998] ELR 515, 520H-521B (tells claimants where to concentrate their efforts; may give rise to defects which can be corrected in future; demonstrates that “proper care has been taken”); Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381G-H (“fairness surely requires that the parties – especially the losing party – should be left in no doubt why they have won or lost”). 64.1.11 Reasons duty reveals whether grounds for challenge. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 at §32 (describing reasons as promoting “the public interest that affected parties should be able to hold the administration to account for their decisions”, whether by available appeal or judicial review); R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302, 309f (reasons obligation imposed “so that the persons 810

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affected by the decision may know why they have won or lost and, in particular, may be able to judge whether the decision is valid and therefore unchallengeable, or invalid and therefore open to challenge”); Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, 166C (Lord Bridge: “[Reasons] should enable a person who is entitled to contest the decision to make a proper assessment as to whether the decision should be challenged”), 170H (“a salutary safeguard to enable interested parties to know that the decision has been taken on relevant and rational grounds and that any applicable statutory criteria have been observed”); R v SSHD, ex p Doody [1994] 1 AC 531, 565G-H (“important that there should be an effective means of detecting the kind of error which would entitle the court to intervene”); R v Parole Board, ex p Lodomez (1994) 26 BMLR 162 (reasons needing to be written and adequate, to assess whether grounds for challenge). 64.1.12 Advantages/disadvantages of reasons. Stefan v General Medical Council [1999] 1 WLR 1293, 1300D-F (advantages “in strengthening [the] process itself, in increasing the public confidence in it, and in the desirability of the disclosure of error where error exists. … But there are also dangers and disadvantages in a universal requirement for reasons. It may impose an undesirable legalism into areas where a high degree of informality is appropriate and add to delay and expense”); R v City of London Corporation, ex p Matson [1997] 1 WLR 765, 783A-D (as to “the difficulty of articulating” reasons: experience shows that “the requirement to give reasons … concentrated the minds on the proper issues involved in the decision making and imposed a very desirable discipline. The giving of reasons ensured that the decisions were based on proper objective grounds”); R v Ministry of Defence, ex p Murray [1998] COD 134 (inconvenience arguments overridden in context of court martial); R v London Borough of Newham, ex p Dawson (1994) 26 HLR 747, 759 (“unimpressed by the considerations advanced by the council, that the giving of reasons in cases such as this is unduly burdensome, or would create practical problems for a committee with diverse views”); R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 at §27 (social justice benefit from reasons); {64.3.15} (reasons and resources). 64.1.13 Reasons and prejudice. {4.2.9}

64.2 Judicial review for failure to give reasons.158 Whether in the individual case there is, or is not, a duty to give reasons involves analysing: the context and circumstances; the applicable legislative scheme and relevant policy guidance; standards of procedural fairness and reasonableness; rights, interests and legitimate expectations; standards of transparency and candour. 64.2.1 Duties to give reasons: an overview. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 at §31 (Elias LJ, explaining that duties to give reasons arise “where fairness requires it, or a particular decision is aberrant … [or] where the failure to give reasons may frustrate a right of appeal, because without reasons a party will not know whether there is an appealable ground or not …; and where a party has a legitimate expectation that reasons will be given”), §32 (whether reasons should be given “in order not to frustrate a potential application for judicial review”). 64.2.2 Duty to give reasons: courts and judges. Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381B (“today’s professional judge owes a general duty to give reasons”); Anya v University of Oxford [2001] EWCA Civ 405 [2001] ELR 711 at §12 (Art 6 jurisprudence requiring “that adequate and intelligible reasons must be given for judicial decisions”); English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409 (courts should give reasons for decisions on costs); R (Tofik) v Immigration Appeal Tribunal [2003] EWCA Civ 1138 at §17 (even if statutory duty to give reasons for refusal of leave to appeal not extending to reasons for refusing an extension of time, common

158The

equivalent paragraph from a previous edition was relied on in Zakreen Holdings Ltd v Dee Cees Services Ltd [2018] FJCA 9 (Fiji Court of Appeal) at §36 (Prematilaka JA).

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law duty would have arisen); Nuttall v National Crime Agency [2016] EWHC 1911 (Admin) [2016] 4 WLR 134 (judge having no duty to give reasons for making a proceeds of crime disclosure order on the papers, it being sufficient that the statutory grounds were satisfied). 64.2.3 Duty to give reasons: illustrations. R (Gare) v Babergh District Council [2019] EWHC 2041 (Admin) [2019] ACD 112 (duty to give reasons for decision granting planning permission) at §35 (“the combination of circumstances in this case clearly required that the council provide reasons for its decision”); R (Savva) v Kensington and Chelsea Royal LBC [2010] EWCA Civ 1209 [2011] PTSR 761 at §20 (common law duty to give reasons for decision allocating a personal care budget); R (Lunn) v HMRC [2011] EWHC 240 (Admin) [2011] STC 1028 at §57 (“fairness required that reasons should be given to explain the termination of [the claimant’s] authorised tax agency”); R (Ali) v Director of High Security Prisons [2009] EWHC 1732 (Admin) [2010] 2 All ER 82 at §23 (duty to give reasons for high/exceptional escape risk classification decision); R (Rowen) v Governor of Kirkham Prison [2009] EWHC 3756 (Admin) (refusal of home detention curfew); R (Cash) v Northamptonshire Coroner [2007] EWHC 1354 (Admin) [2007] 4 All ER 903 at §45 (coroner should have given reasons); R v City of London Corporation, ex p Matson [1997] 1 WLR 765 (Court of Aldermen’s decision not to confirm the election of an Alderman following favourable ward vote); R v Civil Service Appeal Board, ex p Cunningham [1991] 4 All ER 310 (CSAB’s award of compensation); R v Ministry of Defence, ex p Murray [1998] COD 134 (court martial decision rejecting exemplary accused soldier’s evidence); Stefan v General Medical Council [1999] 1 WLR 1293 (GMC health committee); R v DPP, ex p Manning [2001] QB 330, at §33 (DPP obliged to give reasons for not prosecuting where inquest jury had decided unlawful killing); R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 (forcible medication needing written reasons); R (Lin) v Barnet LBC [2007] EWCA Civ 132 [2007] HLR 440 (housing allocation policy inadequately reasoned). 64.2.4 No duty to give reasons: illustrations. R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929 at §25 (no common law duty to give reasons for all decisions as to whether to call-in planning applications); Akhtar v Birmingham City Council [2011] EWCA Civ 383 [2011] HLR 474 at §46 (no duty to give reasons as to why property considered suitable for homelessness applicant); R (Birmingham City Council) v Birmingham Crown Court [2009] EWHC 3329 (Admin) [2010] 1 WLR 1287 at §50 (decision to extend time to appeal an ASBO); R (Hayes) v Secretary of State for Communities and Local Government [2009] EWHC 3520 (Admin) at §65 (decision to grant consent for transfer of housing estate); R (Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1311 [2009] 3 All ER 539 (decision as to human rights compatibility of arms exports licences); R v Kensington and Chelsea Royal LBC, ex p Grillo (1996) 28 HLR 94 (council’s decision that accommodation offered was ‘suitable’, in voluntary appeals procedure); R v Aylesbury Vale District Council, ex p Chaplin [1997] 3 PLR 55 (grant of planning permission, absent a statutory duty); Friends Provident Life and Pensions Ltd v Secretary of State for Transport, Local Government and Regions [2001] EWHC Admin 820 [2002] 1 WLR 1450 at §103 (refusal to call-in a planning application); Rey v Government of Switzerland [1999] 1 AC 54, 66F-67A (magistrates in relation to factual disputes in extradition cases); Dad v General Dental Council [2000] 1 WLR 1538, 1541H (Professional Conduct Committee of GMC/GDC); Gupta v General Medical Council [2001] UKPC 61 [2002] 1 WLR 1691 (disciplinary committee’s findings of fact; cf penalty); R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 2 (termination of police officer’s secondment to the National Crime Squad); R (Giles) v Fareham Borough Council [2002] EWHC 2951 (Admin) [2003] HLR 524 at §12 (decision to defer housing application, reached following an extra-statutory review). 64.2.5 Statutory duty to give reasons. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §40 (officer, delegated to take local authority decision, required to give “written record” with “reasons for the decision” pursuant to Openness of Local Government Bodies Regulations 2014 reg 7); Grunwick Processing Laboratories Ltd v Advisory Conciliation & Arbitration Service [1978] AC 655, 699E (express requirement for 812

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reasons); R v SSHD, ex p Dannenberg [1984] QB 766 (reasons required under EU Directive); R (Midcounties Cooperative Ltd) v Forest of Dean District Council [2007] EWHC 1714 (Admin) (planning permissions quashed for failure to give summary reasons as required by 1995 Order); R v Immigration Appeal Tribunal, ex p Khan (Mahmud) [1983] 1 QB 790 (IAT’s statutory duty to give reasons); R v Croydon LBC, ex p Graham (1994) 26 HLR 286 (Housing Act 1985 s.64); R v Solihull Metropolitan Borough Council Housing Benefits Review Board, ex p Simpson (1994) 92 LGR 719 (duty to give reasons under housing benefit regulations); R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 (homelessness decision involving statutory duty to give reasons); R v Commissioners of Inland Revenue, ex p Continental Shipping Ltd [1996] STC 813 (tax notices statutorily requiring summary of reasons); R v Parole Board, ex p Lodomez (1994) 26 BMLR 162 (duty to give reasons under Parole Rules). 64.2.6 Statutory scheme excluding a reasons duty. R v SSHD, ex p Fayed [1998] 1 WLR 763, 788D (rejecting argument that common law duty to give reasons could coexist, where statutory duty to give reasons expressly excluded); R v Secretary of State for Social Services, ex p Connolly [1986] 1 WLR 421. 64.2.7 Implied statutory duty to give reasons. Stefan v General Medical Council [1999] 1 WLR 1293, 1297C-D (“neither in the Act of 1983 nor in the Rules is any such express obligation to be found. In such a situation an obligation to give reasons may nevertheless be found to exist. This may arise through construction of the statutory provisions as a matter of implied intention. Alternatively it may be held to exist by operation of the common law as a matter of fairness”). 64.2.8 Reasons duty arising under policy guidance. R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52 at §§16-17 (duty to give reasons for mental health recall, arising under published circular); R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88 (reasons promised in guidance to grant applicants); R v Bacon’s City Technology College, ex p W [1998] ELR 488, 494G-H (contrary to own internal memorandum for governors not to give reasons). 64.2.9 Reasons required in fairness. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §14 (referring to “circumstances where reasons should be given”, because “the nature of the decision require[s] it on grounds of fairness”), discussing R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242, 258D-E (describing a class of case, such as R v SSHD, ex p Doody [1994] 1 AC 531, “where the nature of the process itself calls in fairness for reasons to be given”); R (Lunn) v HMRC [2011] EWHC 240 (Admin) [2011] STC 1028 at §55 (“the courts have recognised many circumstances in which procedural fairness requires that reasons should be afforded to a person affected by an adverse decision”); Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, 170H-171A (Lord Bridge, referring to reasons as “the analogue in administrative law of the common law’s requirement that justice should not only be done, but also be seen to be done”); R v SSHD, ex p Duggan [1994] 3 All ER 277, 287h (“the authorities show an ever-increasing variety of situations where, depending on the nature of the decision and the process by which it is reached, fairness requires that reasons be given”); R v Burton upon Trent Justices, ex p Hussain (1997) 9 Admin LR 233, 237G-H (failure to make findings of fact and give reasons amounting to “a denial of natural justice”); R v Ministry of Defence, ex p Murray [1998] COD 134 (reasons required where necessary to achieve justice); Gupta v General Medical Council [2001] UKPC 61 [2002] 1 WLR 1691 at §14 (referring to “cases where the principle of fairness may require … reasons”). 64.2.10 Reasons: legitimate expectation that reasons will be given. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §31 (Elias LJ: “categories of case where the courts have required reasons to be given at common law” including “where a party has a legitimate expectation that reasons will be given”); cf {64.2.19} (reasons needed for ‘departure’: legitimate expectation). 64.2.11 Reasons duty and fundamental rights: common law. R v SSHD, ex p Doody [1994] 1 AC 531 (duty to give reasons arising at common law in the context of liberty of 813

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the individual); R v DPP, ex p Manning [2001] QB 330, at §33 (duty to give reasons arising in unlawful killing case because of right to life); R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 at §§24, 38 (reasons required for decision forcibly to give medication); R (Faulkner) v SSHD [2005] EWHC 2567 (Admin) (reasons for immigration detention). 64.2.12 Reasons, duty and fundamental rights: HRA:ECHR Art 6. Anya v University of Oxford [2001] EWCA Civ 405 [2001] ELR 711 at §12 (Art 6 jurisprudence requiring “that adequate and intelligible reasons must be given for judicial decisions”); North Range Shipping Ltd v Seatrans Shipping Corp [2002] EWCA Civ 405 [2002] 1 WLR 2397 at §§16-22, 28 (examining the Art 6 jurisprudence in relation to reasons); Stefan v General Medical Council [1999] 1 WLR 1293, 1301B-C (Art 6 “will require closer attention to be paid to the duty to give reasons, at least in relation to those cases where a person’s civil rights and obligations are being determined”); Gupta v General Medical Council [2001] UKPC 61 [2002] 1 WLR 1691 (notwithstanding Art 6, no general duty to give reasons for disciplinary committee’s findings of fact); Moran v DPP [2002] EWHC 89 (Admin) (still no duty to give reasons for rejecting submission of no case to answer, despite HRA); R v City of London Corporation, ex p Matson [1997] 1 WLR 765, 776A-C, 777E (unnecessary to decide whether Art 6 of the Convention applying); R v Crown Court at Canterbury, ex p Howson-Ball [2001] Env LR 639 (Art 6 supporting the conclusion that the decision should be quashed for inadequate reasons). 64.2.13 Reasons and reasonableness: decision aberrant/calling for explanation. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §14 (referring to “circumstances where reasons should be given” because “there is something ‘aberrant’ in the particular decision which call[s] out for explanation”), §16; R (Birmingham City Council) v Birmingham Crown Court [2009] EWHC 3329 (Admin) [2010] 1 WLR 1287 at §47 (“one of the categories of case in which there is a duty to give reasons is a decision that appears aberrant without reasons”); R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242, 258B-E (duty where “an apparently inexplicable decision”), 261E-G (“so aberrant as in itself to call for an explanation”); {42.2.4} (inferences and lack of candour/reasons). 64.2.14 Reasons and unreasonableness: inference of unlawfulness. Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997, 1053G-1054A (“If all the prima facie reasons seem to point in favour of his taking a certain course to carry out the intentions of Parliament in respect of a power which it has given him in that regard, and he gives no reason whatever for taking a contrary course, the court may infer that he has no good reason and that he is not using the power given by Parliament to carry out its intentions”), 1061G-1062A (“if he does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason”); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at §50 (“If the court has not been given a true and comprehensive account, but has had to tease the truth out of late [disclosure], it may be appropriate to draw inferences against the Secretary of State upon points which remain obscure”), §62 (“where the Minister has given conflicting, or apparently conflicting, reasons”, Court “not prepared to assume, or find as a fact in these proceedings, that the decision … was taken on rational grounds having regard only to relevant considerations”); R (Farrakhan) v SSHD [2002] EWCA Civ 606 [2002] QB 1391 at §7 (no general principle that “the absence of reasons gives rise to the inference that none exists”); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 539H-540B (“if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reason for his decision”); R v Inland Revenue Commissioners, ex p TC Coombs & Co [1991] 2 AC 283, 300F, 302F (“No unfavourable inference [where] there is … an obvious explanation for their silence”); Bolton Metropolitan District Council v Secretary of State for the Environment (1995) [2017] PTSR 1091, 1096C (“Since there is no obligation to refer to every material consideration, but only the main issues in dispute, the scope for drawing any inference will necessarily be limited to the main issues”); R v Secretary of State for Education, ex p Standish The Times 15 November 1993 (inferred 814

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irrationality where failure to give reasons for decision debarring teacher from employment); R v SSHD, ex p Benjamin Yaw Amankwah [1994] Imm AR 240 (deportation decision inconsistent with Secretary of State’s policy and, absent reasons, unfair and perverse); R v SSHD, ex p Pegg [1995] COD 84 (in the absence of reasons, this decision unreasonable); R v Number 8 Area Committee of the Legal Aid Board, ex p Megarry [1994] PIQR 476 (“in the absence of reasoning as to why the committee found against the [claimant] on this point, the court can only conclude that they have not properly considered the points that were raised”); R v SSHD, ex p Nelson The Independent 2 June 1994 (inadequate contemporaneous reasons meaning reviewing court “not satisfied that the material before the Secretary of State was properly considered before the decision was taken”); R v Central Criminal Court, ex p Behbehani [1994] COD 193 (absence of distinct reasons on single issue supporting conclusion that no material on which relevant conclusion could properly have been reached). 64.2.15 Reasons required to facilitate a challenge. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765 at §31 (Elias LJ: “categories of case where the courts have required reasons to be given at common law” including “where the failure to give reasons may frustrate a right of appeal”), §32 (“there will be many cases where it is in the public interest that affected parties should be able to hold the administration to account for their decisions, and in the absence of a right of appeal, the only way to do so is by an application for judicial review. Where the nature of the decision is one which demands effective accountability, the analogy with a right of appeal is surely apt”); {64.1.7} (judicial review is disarmed absent reasons); {10.1.15} (effective judicial review: providing reasons/materials and the ‘presumption of regularity’); {10.1.1} (duty of candour and cooperation). 64.2.16 Reasons needed for ‘departure’: inconsistency/unequal treatment. {55.3} (unjustified ‘departure’); {55.1.23}, {55.1.25} (consistency: previous decision in the same case); {55.1.22} (consistency principle in planning law); {55.1} (consistency, equal treatment, certainty and arbitrariness). 64.2.17 Reasons needed for ‘departure’: policy guidance. {6.2} (policy guidance); {6.2.9} (duty to justify ‘departure’ from policy guidance); Gransden v Secretary of State for the Environment (1987) 54 P & CR 86 (Woolf J: “if it is going to depart from the policy, it must give clear reasons for … doing so in order that the recipient of its decision will know why the decision is being made as an exception to the policy and the grounds upon which the decision is taken”), applied in Horsham District Council v Secretary of State for the Environment [1992] 1 PLR 81, 88C-G, 94F-G; R v Islington LBC, ex p Rixon [1997] ELR 66 (duty to comply with statutory guidance unless good reason for departure, properly articulated). 64.2.18 Reasons needed for ‘departure’: another body’s findings. {55.3.4}, {55.3.6}{55.3.14} (unjustified departure from position taken by another body). 64.2.19 Reasons needed for ‘departure’: legitimate expectation. R (Bibi) v Newham LBC [2001] EWCA Civ 607 [2002] 1 WLR 237 at §59 (Schiemann, Sedley LJJ and Blackburne J: “In circumstances such as the present where the conduct of the Authority has given rise to a legitimate expectation then fairness requires that, if the Authority decides not to give effect to that expectation, the Authority articulate its reasons so that their propriety may be tested by the court if that is what the disappointed person requires”). 64.2.20 Reasons needed for ‘departure’: planning contexts. Secretary of State for Communities and Local Government v Allen [2016] EWCA Civ 767 at §19 (necessary for Secretary of State to explain in sufficiently clear terms why rejected inspector’s view); R (CPRE Kent) v Dover District Council [2017] UKSC 79 [2018] 1 WLR 108 (duty to give reasons when granting planning permission, departing from planning officers’ contrary recommendation); Mordue v Secretary of State for Communities and Local Government [2015] EWCA Civ 1243 [2016] 1 WLR 2682 at §§24-26 (need, in the balancing exercise, to give “considerable importance and weight” to listed building preservation not changing the standard of legally adequate reasons for granting planning permission). 815

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64.2.21 Reasons needed for rejecting/preferring evidence. Guiste v Lambeth LBC [2019] EWCA Civ 1758 [2020] HLR 12 at §64 (need for “a rational explanation” why departing from expert evidence); R (Nottingham Healthcare NHS Trust) v Mental Health Review Tribunal [2008] EWHC 2445 (Admin) at §17 (MHRT needing to give reasons for rejecting expert evidence); R (I) v SSHD [2005] EWHC 1025 (Admin) at §54 (no “sound basis” for rejecting expert reports); R (C) v Merton LBC [2005] EWHC 1753 (Admin) [2005] 3 FCR 42 at §31 (council failing to give adequate reasons for rejecting expert evidence); R (Beeson) v Dorset County Council [2001] EWHC Admin 986 [2002] HRLR 368 (duty to give adequate reasons for rejecting claimant’s evidence) (CA is [2002] EWCA Civ 1812 [2003] UKHRR 353); R (Alliss) v Legal Services Commission [2002] EWHC 2079 (Admin) at §65 (no need for LSC to give reasons for preferring on expert over another). 64.2.22 Reasons required by the Court: defendant’s duty of candour. {10.4} (defendant/ interested party’s duty of candour). 64.2.23 Power to give reasons. R v SSHD, ex p Fayed [1998] 1 WLR 763 (statute excluding any duty to give reasons, but Secretary of State having a discretion to give reasons, although refusal here unimpeachable); {61.7.10} (duty to consider exercising the power). 64.2.24 Reasons on request: failure to complain/request.159 R (Jedwell) v Denbighshire County Council [2015] EWCA Civ 1232 [2016] PTSR 715 at §35 (prompt request made for contemporaneous reasoning), after R (Mellor) v Secretary of State for Communities & Local Government (No 2) [2009] EWCA Civ 1201 at §7 (CJEU having identified a screening opinion reasons duty, such that: “if an interested party so requests, the authority is obliged to communicate to him the reasons for the determination”); In re A (Children) (Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205 [2012] 1 WLR 595 at §16 (appropriate to ask court to address any perceived inadequacy as to its reasons); cf R (Aitchison) v Sheffield Crown Court [2012] EWHC 2844 (Admin) [2013] ACD 7 at §§35(v), 36 (unnecessary and inappropriate to request further and better reasons; entirely appropriate to seek judicial review based on the reasons in fact given as legally inadequate); R (Savva) v Kensington and Chelsea Royal LBC [2010] EWCA Civ 1209 [2011] PTSR 761 (personal care budget decision) at §23 (“common sense that, in a case such as this, if a recipient is made a timely offer of the provision of reasons on request, the court would reject a claim for judicial review based on a failure to give reasons where no such request has been made”); English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409 at §25 (where appeal court considering permission to appeal from a court, should consider remitting for further reasons), applied in Central Broadcasting Services Ltd v Attorney General of Trinidad and Tobago [2018] UKPC 6 at §12; Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881 [2003] 2 FLR 1035 (applying English v Emery Reimbold, CA remitting case for judge to give additional reasons as to care order); R v Burton upon Trent Justices, ex p Hussain (1997) 9 Admin LR 233, 236F (reasons not requested), 237D-H (nevertheless, breach of natural justice not to make findings of fact and give reasons); R v Crown Court at Stafford, ex p Wilf Gilbert (Staffs) Ltd [1999] 2 All ER 955, 960a (“This is not a case where there has been a refusal of reasons because the reasons have not been sought”); R v Lancashire County Council, ex p M [1995] ELR 136, 139H (should have asked for reasons under the Tribunals and Inquiries Act 1992 s.10).

64.3 Adequacy of reasons.160 Public law standards require proper, adequate and intelligible reasons. Those standards are applied to the context and circumstances of the individual case. A public authority’s lawyers can assist it with presentation, but the

159The

equivalent paragraph in a previous edition was relied on in R (Savva) v Kensington and Chelsea Royal LBC [2010] EWCA Civ 1209 [2011] PTSR 761 at §23 (Maurice Kay LJ). 160The equivalent paragraph in a previous edition was relied on in Khan v Feltham Magistrates [2017] EWHC 3042 (Admin) at §59 (Cockerill J).

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substantive content of the reasons must be those of the public authority in making the decision or action in question. 64.3.1 Adequacy of reasons in a nutshell: Lord Brown in South Bucks. South Bucks District Council v Porter (No 2) [2004] UKHL 33 [2004] 1 WLR 1953 at §36 (Lord Brown: “The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. 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”). 64.3.2 Adequacy of reasons: genuine as opposed to forensic doubt (the Bingham test). Clarke Homes Ltd v Secretary of State for the Environment (1993) [2017] PTSR 1081 at 1089H (Sir Thomas Bingham MR, asking “whether the decision … leaves room for genuine as opposed to forensic doubt as to what [the decision-maker] has decided and why”); South Gloucestershire Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 181 (Admin) at §38 (“The parties were well aware of the competing submissions … There was not any real, as opposed to forensic, doubt as to what the Inspector’s reasons were”); R (CPRE Kent) v Dover District Council [2017] UKSC 79 [2018] 1 WLR 108 at §42 (Lord Carnwath, describing “the essence of the duty” as whether the decision-maker “leaves room for ‘genuine doubt … as to what (it) has decided and why’”). 64.3.3 Intelligible reasons dealing with the main points.161 Bolton Metropolitan Borough Council v Secretary of State for the Environment (1995) [2017] PTSR 1091, 1095H (Lord Lloyd: “What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the ‘principal important controversial issues’”); City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, 1465B-C (“It is necessary that an account should be given of the reasoning on the main issues which were in dispute sufficient to enable the parties and the court to understand that reasoning”); Westminster City Council v Great Portland Estates Plc [1985] AC 661, 673D (need for “proper, adequate, and intelligible” reasons); R (Wheeler) v Assistant Commissioner of the Metropolitan Police [2008] EWHC 439 (Admin) at §1.18 (failure to address the substantial points made by the person affected); Kannan v Newham LBC [2019] EWCA Civ 57 [2019] HLR 363 at §22 (Lewison LJ: “The reviewing officer was … required to give reasons for rejecting [the] ground of complaint (if, indeed, that is what he did)”); R (C) v Financial Services Authority [2012] EWHC 1417 (Admin) at §67 (Silber J: “the claimant will only succeed with a reasons challenge … if first he does not know … ‘why the matter was decided as it was and what conclusions were reached on the “principal important issues”’, and second … he has been ‘substantially prejudiced’ by this failure to provide reasons”); R v Brent LBC, ex p Baruwa (1997) 29 HLR 915, 929 (Schiemann LJ, referring to “reasons which are proper, adequate, and intelligible and enable the person affected to know why they have won or lost”). 161The

equivalent paragraph in a previous edition was relied on in YY v Minister for Justice and Equality [2018] IEHC 459 at §10; MEO (Nigeria) [2018] IEHC 782 at §23; YY [2019] IEHC 27 at §10; Transdev Ireland Ltd v Caplis [2020] IEHC 403 at §11 (Richard Humphreys J).

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64.3.4 Inadequate reasons: illustrations. R (Stokes) v Parole Board [2020] EWHC 1885 (Admin) at §41 (reasons fell below acceptable standard); Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 1461 (Admin) at §§107, 114 (failure to give clear and adequate reasons); R (Suliman) v SSHD [2020] EWHC 326 at §25 (determination “did not address or deal with” claimant’s explanation), §30 (failure to “reach a conclusion” about “highly material evidence”); R (Chief Constable of Northumbria) v Police Appeals Tribunal [2019] EWHC 3352 (Admin) at §55 (“error of law” in that “no reasons provided for the decision to change the outcome to a final written warning”); R (Grantham) v Parole Board for England and Wales [2019] EWHC 116 (Admin) at §41 (parole board decision not properly reasoned); R (Steer) v Shepway District Council [2018] EWHC 238 (Admin) [2018] ACD 39 at §61 (planning committee minutes not recording reasons for conclusions on principal controversial issues), §64 (defect in reasons going to the heart of the justification for planning permission, undermining its validity); R (Miah) v Independent Police Complaints Commission [2017] EWCA Civ 2108 [2018] 1 WLR 3817 at §42 (“the investigating officer is obliged to include all matters in his report which will enable the appropriate authority to consider [the statutory conditions] for itself”); R (Aviva Life and Pensions (UK) Ltd) v Financial Ombudsman Service [2017] EWHC 352 (Admin) [2017] ACD 53 at §55 (failure to explain why departing from relevant law, guidance and practice); R (Jedwell) v Denbighshire County Council [2015] EWCA Civ 1232 [2016] PTSR 715 at §33 (“A reader … would ascertain what decision the council had made, but not why it had made it”). 64.3.5 Adequate reasons: illustrations. R (Maritime Heritage Foundation) v Secretary of State for Defence [2019] EWHC 2513 (Admin) [2019] ACD 140 at §83 (clearly stated reasons and no obligation to say any more); R (Buckley) v Bath and North East Somerset Council [2018] EWHC 1551 (Admin) [2019] PTSR 335 at §39 (reasons adequate and intelligible); G v Mental Health Tribunal for Scotland [2013] UKSC 79 [2014] SLT 247 at §63 (Lord Reed: “the reasons given by the tribunal dealt with the critical issues sufficiently to enable the parties and the court to understand why the application had been refused”); Uprichard v Scottish Ministers [2013] UKSC 21 [2013] SLT 1218 at §51 (Lord Reed: “The reasons given provided an intelligible explanation, especially to a well informed reader such as the appellant, as to why the ministers were not persuaded by her objections”). 64.3.6 Adequacy of reasons: collective decision-makers. R (Jewish Rights Watch Ltd) v Leicester City Council [2018] EWCA Civ 1551 [2019] PTSR 488 at §34 (approach to multi-member body), considered in R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871 at §86 (“inferences can be drawn from the materials placed before the body, the terms of any resolution and report adopted” and “elected councillors can be expected to have a good understanding of issues affecting their area”); R v London County Council, ex p London and Provincial Electric Theatres Ltd [1915] 2 KB 466, 490-491 (“probably hardly any decision of a body like the London County Council dealing with these matters could stand if every statement which a member made in debate were to be taken as a ground of the decision”); R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037, 1051D; cf Arorangi Timberland Ltd v Minister of the Cook Islands National Superannuation Fund [2016] UKPC 32 [2017] 1 WLR 99 at §39 (“it is, normally at any rate, difficult to identify the motives of a legislature, given that different members may have different reasons for voting the way they did and … many of the members who vote in favour do not speak”); {64.4.4} (collective decision-making body: importance of the official record). 64.3.7 Anxious scrutiny and reasons: high standard of reasoning. {32.4} (anxious scrutiny); {32.4.15} (anxious scrutiny and procedural fairness: Thirukumar); R (FK) v SSHD [2016] EWHC 56 (Admin) at §27 (Dove J: “a high standard of reasoning is required from the competent authority in order to demonstrate a careful and conscientious analysis of the relevant factors which have to be taken into account”), echoed in R (WEN) v SSHD [2019] EWHC 2104 (Admin) at §47(iii); also R (M) v SSHD [2015] EWHC 2467 (Admin) at §55. 64.3.8 Drafting reasons: proper limits of the lawyer’s function. R v Wandsworth LBC, ex p Dodia (1998) 30 HLR 562, 565-566 (Jowitt J: “there is a certain knowledge required 818

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as to what matters should be dealt with in decision letters. Provided the distinction is clearly observed between the decision-maker’s role which is to decide where the truth lies, to decide on the relevant facts and to provide the reasons for those decisions and any assistance given in formulating a decision letter in a way which deals with clarity with the decision and the reasons for it, I can see no objection to a decision-maker receiving advice in the drafting of the decision letter, provided, I stress, that division of labours is observed: the boundary between a decision-maker’s function and his or her reasons for it and assistance then about how the decision letter should be drawn so that it can properly fulfil the duty under the Act to give reasons”); R v Southwark LBC, ex p Campisi (1999) 31 HLR 560, 565 (Schiemann LJ, speaking of a lack of “confidence that somebody actually sat back and seriously thought about it, as opposed to a lawyer afterwards reconstructing from various bits of mosaic to be found in various files, something which could have been a perfectly reasonable decision”); Virdi v Law Society [2010] EWCA Civ 100 [2010] 1 WLR 2840 (Tribunal clerk assisting in the drafting of written findings and reasons). 64.3.9 Adequacy of reasons and tribunals: the Burnton propositions. R (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region [2001] EWHC Admin 901 (2002) 5 CCLR 36 at §77 (Stanley Burnton J, suggesting “the following propositions”: “(a) proper adequate reasons must be given that deal with the substantial points that have been raised …; (b) Reasons must be sufficient for the parties to know whether the tribunal made any error of law. … (c) Where … Parliament has required that a decision be given with written reasons, those reasons have to be adequate. They may be elucidated by subsequent evidence, but in general, inadequate written reasons cannot be saved by such evidence. … (d) [The tribunal’s] reasons must deal with the entirety of its decision. … (e) It is unnecessary for a tribunal to set out the evidence and arguments before it or the facts found by it in detail. … (f) It is often difficult to explain why one witness is preferred to another. Generally speaking, a tribunal’s decision will not be inadequately reasoned if it does not give such an explanation. (g) In assessing the adequacy of reasons, one must bear in mind that the decision will be considered by parties who know what the issues were. … (h) However, the reasons must sufficiently inform [the parties] as to the findings of the tribunal. … A tribunal must also bear in mind that its decision may have to be considered by those who were not present at or parties to the hearing. … (i) In considering the adequacy of reasons the Court is entitled to take into account the fact that the tribunal has a legallyqualified chairman, and [if] the reasons do not have to be given immediately”) (CA is R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 [2003] 1 WLR 127). 64.3.10 Adequacy of reasons depends on context. R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88 at §27 (Lord Woolf CJ: “The standard of reasons required depends upon the circumstances of the particular case. Where reasons are required to be given, the obligation is to give appropriate reasons having regard to the circumstances of the case”); R v Immigration Appeal Tribunal, ex p Jebunisha Kharvaleb Patel [1996] Imm AR 161, 167 (“the duty to give reasons require reasons that are clear and adequate and deal with the substantial issues in the case. But … what are good reasons in any particular case depend on the circumstances of the case”); Flannery and Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 382A-C (“The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter”); R v Criminal Injuries Compensation Board, ex p Aston [1994] PIQR 460 (adequacy dependent upon the circumstances of the case). 64.3.11 Reasoning inferred/incorporated from other materials.162 R (Bates) v Maldon District Council [2019] EWCA Civ 1272 at §19 (“Where a planning decision is taken in line with an officer’s report, then there is an assumption that the reasons for that decision are those set out in the report”, referring to Palmer [2016] EWCA Civ 1061 at §7; and see R (Watermead Parish Council) v Aylesbury Vale District Council [2018] PTSR 43 at §22); cf R (Dry) v West Oxfordshire District Council [2010] EWCA Civ 1143 [2011] 1 P & CR 340 162The

equivalent paragraph in a previous edition was relied on in MZA (Pakistan) v MJE [2018] IEHC 784 at §6 (Richard Humphreys J).

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at §18 (“even if the officer’s reasoning is regarded as flawed”, wrong to say “that it must necessarily be attributed to the committee” when “the committee’s adopted reasons … were in fact somewhat fuller”); R (Macrae) v Herefordshire District Council [2012] EWCA Civ 457 at §26 (wrong in principle to rely on reports and other materials, because “the underlying statutory purpose of requiring … reasons … was to avoid the need for claimants to pursue a paper chase and to examine extrinsic evidence in order to ascertain what the reasons for granting planning permission really were”), §28 (different if reasons “cross-refer” to those materials); {64.4.4} (collective decision-making body: importance of the official record); {51.2.1} (material presented to decision-maker was unfair/misleading). 64.3.12 Standard form reasons/generalised incantations. Kannan v Newham LBC [2019] EWCA Civ 57 [2019] HLR 363 (PSED breach) at §24 (“The mere recitation of … the formula … in the decision letter is no substitute for actually doing the job”); R (Agyarko) v SSHD [2017] UKSC 11 [2017] 1 WLR 823 at §71 (Lord Reed: “The use of standardized reasons is characteristic of modern decision-making practices in fields of public administration where large numbers of applications can be processed more efficiently”; “the use of standard phrases is not in itself legally objectionable, provided the reasons given continue to explain adequately why the decision has been taken”); SI (India) v SSHD [2016] EWCA Civ 1255 at §17 (describing a sentence which “does no more than recite the policy”); Nzolameso v Westminster City Council [2015] UKSC 22 [2015] PTSR 549 at §42 (“standard paragraph” not discharging duty to “ensure that … decisions are properly evidenced and properly explained”); R (Morris) v Newport City Council [2009] EWHC 3051 (Admin) at §40 (reasons “formulaic”), §41 (“formal recitation of the statutory requirement may not suffice”); R (London Fire and Emergency Planning Authority) v Secretary of State for Communities and Local Government [2007] EWHC 1176 (Admin) [2007] LGR 591 at §64 (invocation of an uninformative formula suggesting absence or concealment of specific reasons); R (Reading Borough Council) v Admissions Appeal Panel for Reading Borough Council [2005] EWHC 2378 (Admin) [2006] ELR 186 at §13 (bare recitation of statutory grounds inadequate); R v Mental Health Review Tribunal, ex p Clatworthy [1985] 3 All ER 699 (insufficient to rehearse the circumstance in which a discharge could be granted); R v Birmingham City Council, ex p B [1999] ELR 305, 312E (“an appellant is entitled to know the basis for the decision beyond simply a ritual incantation of the [statutory] test”); R v Camden LBC, ex p Adair (1997) 29 HLR 236, 247 (recitation of general formula, that all evidence taken into account and all inquiries made); R v Northampton Borough Council, ex p Carpenter [1993] COD 133 (not sufficient to say ‘regard has been given to the general circumstances’); R v Royal Borough of Kensington and Chelsea, ex p Kassam (1994) 26 HLR 455, 462 (“‘reasons’ involves more than merely reciting the provision of the sections referring to the circumstances to which regard has to be paid”), 465; R (L) v Independent Appeal Panel of St Edward’s College [2001] EWHC Admin 108 [2001] ELR 542 at §38 (panel should not have used a standard form letter in the present case); R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88 (no duty to give reasons beyond saying preferred other options); R (A1 Veg Ltd) v Hounslow LBC [2003] EWHC 3112 (Admin) [2004] LGR 536 at §131 (sufficient to say that market tenant unsuccessful after due consideration). 64.3.13 Lawyers/non-lawyers and reasons. R v Governors of the Bishop Challoner Roman Catholic Comprehensive Girls’ School, ex p Choudhury [1992] 2 AC 182, 197E (Lord BrowneWilkinson: “the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt”); R (London Fire & Emergency Planning Authority) v Board of Medical Referees [2007] EWHC 2805 (Admin) (although “wrong to be too critical of the reasons given by a board that is not chaired by a lawyer”, nevertheless reasons inadequate); Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, 165G (Lord Bridge, doubting “how far any willingness on the part of the courts to construe inspectors’ decision letters benevolently is properly referable to their having been drafted without legal assistance. Even if it is, I do not think that the converse follows that a decision by the Secretary of State, because he has access to legal assistance in drafting decision letters, should on that account be subjected to more rigorous criticism in condemning flaws in the quality of the draftsmanship”). 820

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64.3.14 Duty to grapple: adequate reasons requiring a systematic/logical analysis. R (Chief Constable of Dyfed Powys Police) v Police Misconduct Tribunal [2020] EWHC 2032 (Admin) at §64 (Nicklin J, explaining that “any fact-finding tribunal must explain how it has got from its findings of fact to its conclusions”), §77 (tribunal failed to “address each incident in a systematic and structured way”), §81 (“failure to make proper findings of fact”); R (Michalides) v Chief Constable of Merseyside [2019] EWHC 1434 at §53 (“the Board failed to reach decisions on key factual issues … or alternatively did not give adequate reasons as to how it dealt with these issues”); R (Torpey) v DPP [2019] EWHC 1804 (Admin) [2019] ACD 98 at §61 (lack of “care, thoroughness and detail” in CPS review decision); Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 127 (Admin) [2019] PTSR 1302 at §39 (“the inspector erred in law in his failure to properly grapple with and provide reasons for departing from the earlier conclusions of inspectors addressing the same issues”); R (Gwynt-y-Mor Offshore Wind Farm Ltd) v Gas and Electricity Markets Authority [2019] EWHC 654 (Admin) [2019] ACD 54 at §161 (circumstances “required a much more considered and analytical approach”); R (A) v SSHD [2017] EWHC 1233 (Admin) [2017] ACD 71 at §62 (Blake J: “looking at the matter as a whole, the decision-maker has failed to make a fair evaluation of all the strands of the evidence and has not therefore performed an overall consideration satisfactorily on the balance of probabilities”); R v Immigration Appeal Tribunal, ex p Amin [1992] Imm AR 367, 374 (immigration judges needing to indicate “(1) what evidence they accept; (2) what evidence they reject; (3) whether there is any evidence as to which they cannot make up their mind, whether or not they accept it; (4) what, if any, evidence they regard as irrelevant”); R (Sivanesan) v SSHD [2008] EWHC 1146 (Admin) at §30 (“essential to grapple” with “critical aspects”); R v Housing Benefit Review Board of South Tyneside Metropolitan Borough Council, ex p Tooley [1996] COD 143 (decision letter should have summarised (a) the claimant’s contentions, (b) the supporting evidence, (c) the council’s conclusions and (d) the reasons for (c)); R (Lowe) v Family Health Services Appeal Authority [2001] EWCA Civ 128 (reasons inadequate because did not deal with question in correct “logical sequence”); Curtis v London Rent Assessment Committee [1999] QB 92, 118G-119C (rent assessment committee’s duty to give reasons needing some “working through”, ie arithmetical explanation, of the assessment); {51.2.4} (decision-maker failed to grapple with the material/issues). 64.3.15 Reasons and resources. R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 [2003] 1 WLR 127 at §76 (Dyson LJ: “If tribunals do not have the time and back-up resources that they need to discharge their statutory obligation to provide adequate reasons, then the time and resources must be found. I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not, and the sufficiency of resources is irrelevant to that question”). 64.3.16 ‘Departure’ cases: duty to explain departure. {64.2.16}-{64.2.20} (reasons needed for ‘departure’); {55.3} (unjustified ‘departure’). 64.3.17 Adequacy of reasons: reasons given voluntarily. R v Criminal Injuries Compensation Board, ex p Cummins (1992) 4 Admin LR 747 (having chosen to give reasons, obliged to give adequate reasons); R v Criminal Injuries Compensation Board, ex p Moore [1999] 2 All ER 90 (Sedley J), 95j (“since reasons were given in the present case, it is not necessary to decide whether there was a legal obligation to give them. Once given; their adequacy falls to be tested by the same criteria as if they were obligatory”; CA is at [1999] COD 241); R (Martin) v Legal Services Commission [2007] EWHC 1786 (Admin) at §60 (“legal inadequacy of … voluntary reasons” warranting quashing the decision). 64.3.18 Whether reasons should be in writing. R v Parole Board, ex p Lodomez (1994) 26 BMLR 162 (duty to give reasons under the Parole Rules meaning full reasons in writing); R v Criminal Injuries Compensation Board, ex p Moore [1999] COD 241 (whether reasons should be given in writing, where requested by the claimant); R v London Borough of Islington, ex p Hinds (1995) 27 HLR 65, 75 (“Decisions are more likely to be correct if they are carefully considered and properly articulated. Writing brings clarity and precision to 821

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thought”); R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 at §34 (declaration that certifying doctor administering compulsory medication to a competent non-consenting adult “should give in writing the reasons”). 64.3.19 No need for lengthy reasons. R (Savva) v Kensington and Chelsea Royal LBC [2010] EWCA Civ 1209 [2011] PTSR 761 at §21 (Maurice Kay LJ: “In many cases, the provision of adequate reasons could be achieved with reasonable brevity”); Stefan v General Medical Council [1999] 1 WLR 1293, 1304B (“The extent and substance of the reasons must depend upon the circumstances. They need not be elaborate nor lengthy. But they should be such as to tell the parties in broad terms why the decision was reached”), 1301F (“there can clearly be circumstances where a quite minimal explanation will legitimately suffice”); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §170 (Lord Clyde: “What is required is that there should be a decision with reasons. Provided that these set out clearly the grounds on which the decision has been reached it does not seem to me necessary that all the thinking which lies behind it should also be made available”); Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, 164G (not required “to dot every ‘i’ and cross every ‘t’”); R v Civil Service Appeal Board, ex p Bruce [1989] 2 All ER 907, 912a (“no obligation to go into lengthy reasoning, examining all points in detail, or anything of that sort”); R v London Borough of Southwark, ex p Davies (1994) 26 HLR 677, 680 (Laws J: “not necessary for the local authority to embark on a long diatribe”); R (Hargrave) v Stroud District Council [2002] EWCA Civ 1281 [2002] 3 PLR 115 at §§13-14 (magistrates not required to give detailed reasons for conviction, even by reference to HRA:ECHR Art 6); R (Leung) v Imperial College of Science, Technology and Medicine [2002] EWHC 1358 (Admin) [2002] ELR 653 at §36 (“no need to deal with every point that has been raised”); R v Governor of HM Prison Long Lartin, ex p Ross 27 May 1994 unreported (not required “to give chapter and verse”); R v Lancashire County Council, ex p M [1995] ELR 136, 139E-G (“broad grounds” in “standard form letter” sufficient); R v Immigration Appeal Tribunal, ex p Mohammed Rashid [1995] Imm AR 194, 196 (“not necessary for the [IAT] to spell out, in any detail, the basis on which it rejects any proposition of law put to it in the grounds of appeal”); R v Immigration Appeal Tribunal, ex p Befikadi Minewuyelet Kassa [1995] Imm AR 246, 247 (adjudicator not obliged “to take the matter sentence by sentence and reject or accept each part of the evidence”); R v London Borough of Islington, ex p Hinds (1996) 28 HLR 302 (adequate reasons should not mean imposing an unrealistic or impractical burden); R v Criminal Injuries Compensation Board, ex p Cook [1996] 1 WLR 1037, 1043A-F (no duty to deal with every material consideration), 1045B (no duty to demonstrate in reasoning that conclusion reached by appropriate process of reasoning). 64.3.20 Benevolent approach to reasons. {13.5.17} (judicial restraint: benevolent treatment of decision letters/reasons). 64.3.21 Adequacy of reasons: obvious/straightforward cases. R (United Cabbies Group (London) Ltd) v Westminster Magistrates’ Court [2019] EWHC 409 (Admin) at §§32-34 (“obvious” that judge accepted evidence on key ventilated issue); Nuttall v National Crime Agency [2016] EWHC 1911 (Admin) [2016] 4 WLR 134 (reasons otiose where judge satisfied as to statutory preconditions for order); Southall v General Medical Council [2010] EWCA Civ 407 [2010] 2 FLR 1550 at §55 (Leveson LJ: “in straightforward cases, setting out the facts to be proved … and finding them to be proved or not proved will generally be sufficient”); R v Bristol City Council, ex p Bailey and Bailey (1995) 27 HLR 307, 317 (single issue, where reasons obvious and therefore unnecessary); R v Governors of St Gregory’s RC Aided High School, ex p M [1995] ELR 290, 298D-300A (sufficient that letter merely expression of ultimate decision; approach having been made plain during hearing); R v Crown Court of Southwark ex p Samuel [1995] COD 249 (merely stating the result might suffice in a straightforward case); R v Wallace The Times 31 December 1996 (ruling left the answer in no doubt); R v Aylesbury Vale District Council, ex p Chaplin [1997] 3 PLR 55, 60H, 61C (question under consideration clear and good and obvious reason for decision which was reached); R (Thompson) v SSHD [2003] EWHC 538 (Admin) at §41 (where decision was an application of a stated policy: “The reason is the policy … Therefore the reason for the 822

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decision is manifest”); R (Shields) v Criminal Injuries Compensation Appeals Panel [2001] ELR 164 at §30 (“the reasons were plain in the context of the case as it was argued”); R v London Borough of Lambeth, ex p Walters (1994) 26 HLR 170, 175 (“the fact that the reasons are obvious, without the obvious being stated, does not absolve the local authority from its duty for stating the obvious”); Pullum v CPS [2000] COD 206 (court obliged to give reasons, even though case a simple one). 64.3.22 Adequacy of reasons: informed audience. R (Bates) v Maldon District Council [2019] EWCA Civ 1272 at §19 (officer’s report to be read “on the basis that it is drafted for an informed audience”; reasons for decision “drafted for informed parties who are well aware of the issues involved and the arguments advanced”); South Gloucestershire Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 181 (Admin) at §38 (“The parties were well aware of the competing submissions. … There was not any real, as opposed to forensic, doubt as to what the Inspector’s reasons were”); Horada v Secretary of State for Communities and Local Government [2016] EWCA Civ 169 [2016] PTSR 1271 at §49 (Lewison LJ: “the decision letter must be taken to have been addressed to a well-informed readership. But in my view the reader of the decision letter would have had to have been not only well-informed but also psychic to have extracted from the two laconic sentences … the elaborate chain of reasoning upon which [counsel] relies”), §57 (Lord Thomas CJ: “Although the citizen can be taken to know the factual background and in this sense be well informed, the citizen affected by a decision is entitled to an explanation of the reasons in plain English which the citizen can understand”); English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409 at §118 (“an unsuccessful party should not seek to upset a judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the Judge has reached an adverse decision”); North Range Shipping Ltd v Seatrans Shipping Corp [2002] EWCA Civ 405 [2002] 1 WLR 2397 at §27 (“the judge’s brief reasons are directed to a fully informed applicant”); R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 [2003] 1 WLR 127 at §79 (“I do not accept that the ‘informed audience’ point can properly be relied on to justify as adequate a standard of reasoning in tribunals which would not be regarded as adequate in a judgment by a judge”); R (Warren) v Mental Health Review Tribunal London North and East Region [2002] EWHC 811 (Admin) at §15 (agreeing that: “Brevity is an administrative virtue, and elliptical reasons may be perfectly comprehensible when considered against the background of the arguments at the hearing”). 64.3.23 Reasons and prejudice. {4.2.9}

64.4 Timing of reasons: retro-reasons.163 It can be an important question whether and when a vitiating vacuum created by absent or legally inadequate reasons, as at the time of an impugned decision, should be permitted to be filled by reasons supplied after the event, especially when the decision is being defended. The Court may consider it artificial to review a decision without reference to an amplificatory explanation which is reliable, available and does not contradict reasons given contemporaneously. But allowing retroreasons can be wrong in principle, and dangerous in practice. Not least because this can mean the requisite focused-mind being brought to bear only when in defence-mode, after the event. In principle and in general, where reasons are called for, they should be recorded and given at the time of the decision (or a prompt request), not articulated only later when defending a legal challenge. 64.4.1 Stages in judicial review when a defendant may seek to give further reasons. {64.2.24} (reasons on request); {19.1.9} (pre-action protocol letter of response); {19.3.1}, 163The

equivalent paragraph in a previous edition was relied on in R (X) v Secretary of State for Justice [2009] EWHC 2465 (Admin) at §36 (Keith Lindblom QC); R (Naidu) v SSHD [2016] EWCA Civ 156 [2016] 1 WLR 3775 at §51 (Beatson LJ); R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §30 (Underhill LJ); R (Wyatt) v Thames Valley Police [2018] EWHC 2489 at §73 (Bryan J).

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{19.3.8} (acknowledgment of service/summary grounds of defence); {22.1.5} (postpermission detailed response/written evidence). 64.4.2 Retro-reasons: in a nutshell. Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §78 (Chamberlain J: “So far as ex post facto reasons are concerned, the authorities draw a distinction between evidence elucidating those originally given and evidence contradicting the reasons originally given or providing wholly new reasons. … Evidence of the former kind may be admissible; evidence of the latter kind is generally not. Furthermore, reasons proferred after the commencement of proceedings must be treated especially carefully, because there is a natural tendency to seek to defend and bolster a decision that is under challenge. … [T]he need for caution that applies when considering ex post facto reasons does not apply to the reasons contained in the … logs or other records. … They are a contemporaneous record of the [defendant’s] reasons and may … properly be taken into account to the extent that they are not inconsistent with what was said in the [reasons communicated]”). 64.4.3 Drafting reasons: proper limits of the lawyer’s function. {64.3.8} 64.4.4 Collective decision-making body: importance of the official record. R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290 at §64 (“Save in exceptional circumstances, a public authority should not be permitted to adduce evidence which directly contradicts its own official records of what it decided and how its decisions were reached”); R (Patel) v Dacorum Borough Council [2019] EWHC 2992 (Admin) at §96 (declining to admit a witness statement purporting to correct an asserted inaccuracy in the minutes); R v Carrick District Council, ex p Shelley [1996] Env LR 273, 283 (“A Committee of this kind expresses itself by voting on a resolution and the minute then forms the public record of its decision. In normal circumstances, the decision can only be ascertained by reference to the terms of the resolution”); R (Young) v Oxford City Council [2002] EWCA Civ 990 [2002] 3 PLR 86 at §20 (Pill LJ, describing “dangers in permitting a planning authority, whether by its committee chairman or a planning officer, providing an explanatory statement. The danger is that, even acting in good faith, the witness may attempt to rationalise a decision in such a way as to meet a question which has arisen upon the effect of the decision. Moreover, it will usually be impossible to assess the reasoning process of individual members and there are obvious dangers in speculating about them. It is therefore important that the decision-making process is made clear in the recorded decisions of the committee, together with the officers’ report to committee and any record of the committee’s decisions. Decisions recorded in the minutes should speak for themselves”); Breen v Amalgamated Engineering Union [1971] 2 QB 175, 192H (“not open to the individual members of that body, be they one or many, to give evidence to add to, vary or contradict the reasons which have been given authoritatively on behalf of all”); R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538 (although desirable that all members of decision-making committee should subscribe to reasons subsequently put forward, not essential where court satisfied that they represent the true reasons); R (Wall) v Brighton and Hove City Council [2004] EWHC 2582 (Admin) [2004] 4 PLR 115 (failure to provide required summary of reasons not satisfactorily addressed by evincing reasons of individual members, but warranted collectively reconvening the planning committee in public session); {64.3.6} (adequacy of reasons: collective decision-makers). 64.4.5 Retro-reasons: the Ermakov principles. R (Shasha) v Westminster City Council [2016] EWHC 3283 (Admin) [2017] PTSR 306 at §41 (John Howell QC, identifying “the principles in Ex p Ermakov” (R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302), concerning “the admissibility of evidence as to the reasons for the decision”), §42 (“Those principles allow for the admission of evidence to elucidate but only exceptionally to correct, or to add to, the reasons required to be produced. The examples of the corrections which may be exceptionally be considered (which do not amount to an impermissible contradiction or alteration) include errors in transcription or expression and words inadvertently omitted. An example of an addition that may be permitted exceptionally is where the language used may be lacking in clarity in some way”), §40 (defendant “may not adduce evidence to contradict 824

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its stated reasons or its own ‘official records of what it decided and how its decisions were reached’ including any relevant officer’s report”); Hijazi v Kensington and Chelsea Royal LBC [2003] EWCA Civ 692 [2003] HLR 1113 at §31 (Dyson LJ, describing Ermakov as “a classic exposition of the relevant law”); R v SSHD, ex p Lillycrop 27 November 1996 unreported (applying Ermakov as “the proper approach” where Parole Board’s duty to give reasons arising by virtue of “the demands of natural justice and fairness”); R (Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000 [2005] LGR 105 (adopting an Ermakov approach to question whether directions ultra vires because not made for the statutorily prescribed purpose), §58 (primary source of reasons contemporaneous, and fresh evidence permissible only to explain an “ambiguity” in the reason and then only where “credible and authoritative”), §63 (“inappropriate as a matter of principle, unfair on the [claimants] and inconsistent with authority” to admit witness statement evidence “in order to afford new and arguably lawful grounds for the Directions, when the stated reasons for recommending and adopting the Directions are ultra vires”). 64.4.6 Retro-reasons: the Nash propositions. R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538 at §34 (Stanley Burnton J, identifying these propositions: “(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that … ‘the adequacy of the reasons is itself made a condition of the legality of the decision’, only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons. (ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap: (a) Whether the new reasons are consistent with the original reasons. (b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee. (c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal’s decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b). (d) The delay before the later reasons were put forward. (e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly”); R (B) v Merton LBC [2003] EWHC 1689 (Admin) [2003] 4 All ER 280 at §42 (Stanley Burnton J, explaining that Nash proposition (i) was too widely expressed: “Reasons that merely elucidate reasons given contemporaneously with a decision will normally be considered by the Court”); R (Leung) v Imperial College of Science, Technology and Medicine [2002] EWHC 1358 (Admin) [2002] ELR 653 at §§29-30 (Silber J, applying the Nash propositions, but adding: “whether the decision-maker would have been expected to state in the decision document the reason that he or she is seeking to adduce later”; and “whether it would be just in all the circumstances to refuse to admit the subsequent reasons of the decision-maker”), applied in R (City of Westminster) v Transport for London [2018] EWHC 2402 (Admin) [2018] ACD 129 at §59. 64.4.7 Later reasons must not contradict/conflict. R (Gwynt-y-Mor Offshore Wind Farm Ltd) v Gas and Electricity Markets Authority [2019] EWHC 654 (Admin) [2019] ACD 54 at §77, §100 (“position” advanced in second witness statement rejected as “inconsistent” with what said in first witness statement); R (Campaign Against Antisemitism) v DPP [2019] EWHC 9 (Admin) [2019] ACD 36 at §61 (reasons in pre-action letter of response treated as not inconsistent with decision letter); R (Slade) v HM Attorney General [2018] EWHC 3573 (Admin) [2019] ACD 24 at §45 (no inconsistency); Cemex (UK) Operations Ltd v Richmondshire District Council [2018] EWHC 3526 (Admin) at §27 (“it should be rare for a court to accept ex post facto explanations and justifications which risk conflicting with the reasons set out in the decision”); R (City of Westminster) v Transport for London [2018] EWHC 2402 (Admin) [2018] ACD 129 at §§53, 59-60 (rejecting as inadmissible reasons in witness statements, because “inconsistent with the original reasons” and appearing after the proceedings had been commenced); R (LE (Jamaica) v SSHD [2012] EWCA Civ 597 at §22 (“no inconsistency”); Re C and P [1992] COD 29 (in principle evidence not admissible to show that education appeal committee meant something different from what said in unambiguous reasons set out in decision letter). 825

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64.4.8 Later reasons should not plug gaps. Cemex (UK) Operations Ltd v Richmondshire District Council [2018] EWHC 3526 (Admin) at §28 (“the courts are … reluctant to permit elucidatory statements if produced for the purpose of plugging a gap in the reasoning”), §§87, 101 (rejecting evidence attempting to plug the gaps in this case), citing Timmins v Gelding Borough Council [2014] EWHC 654 (Admin) at §113 and Ioannou v Secretary of State for Communities and Local Government [2013] EWHC 3945. 64.4.9 The need, in principle, for contemporaneous reasoned documents. R (E) v Islington LBC [2017] EWHC 1440 (Admin) [2018] PTSR 349 at §114 (local authority, making homelessness transfer out of borough, “must record its reasoning, and be in a position to provide evidence of its contemporaneous reasoning in court, if called upon to do so. It must be in a position to demonstrate, by reference to written contemporaneous records, the process of reasoning by which it reached its decision”), referring to Nzolameso v Westminster City Council [2015] UKSC 22 [2015] PTSR 549 at §31-36. 64.4.10 Retro-reasons concerns: weight or admissibility? R (LXD) v Chief Constable of Merseyside [2019] EWHC 1821 (Admin) at §§23-24 (whether to disregard evidence as ex post facto justification treated as going to weight, for appraisal by the judge at the substantive hearing, and not a reason to refuse permission to file the evidence); R (Ikram) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1869 (Admin) at §35 (decision-maker’s witness statement “only … admitted insofar as it set out his recollection of what did, or did not occur at the hearing”, court having “excluded those parts of the witness statement in which he sought to explain or justify his conclusions”). 64.4.11 Proper later explanation/amplification.164 R (L) v Director of Public Prosecutions [2020] EWHC 1815 (Admin) at §20 (subsequent “decision letter”, in response to letter before claim, serving “to give clearer and better reasons for the decision” than had been set out in the decision letter two months earlier), §32 (“an opportunity to remedy any defects in the reasoning of the [earlier] decision letter”); R (Daniels) v Prime Minister [2018] EWHC 1090 (Admin) at §42 (court satisfied that reasons given in detail in GLD (Government Legal Department) letter constituting “the original reasons for the decision”); In re Loughlin [2017] UKSC 63 [2017] 1 WLR 3963 at §36 (decision-maker having “explained” form of words used in decision document, and “no reason” to give them a different significance); R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §61 (nothing “inherently wrong” in defendant writing supplementary letters post-dating the challenge), §32 (legitimate to deal with ‘further material’); Trail Riders Fellowship v Wiltshire County Council [2018] EWHC 3600 (Admin) at §41 (proper to file witness statement which “explains matters of context” and “makes the position clearer, but does not seek to re-write the Council’s actions”); Dennis Hutchings [2019] UKSC 26 at §§45, 49 (reasons for certifying case as appropriate for non-jury trial set out in a letter and then in two affidavits); R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52 at §16 (duty under Circular to give grounds for recall at the time, explanation of reasons within 72 hours, and written reasons within a further 72 hours); R (KM) v Cambridgeshire County Council [2012] UKSC 23 [2012] PTSR 1189 at §38 (Lord Wilson, describing the “fully informed inquiry” enabled by “the amplification of … reasoning in the mass of evidence filed … in response to the application for judicial review”); R (Swords) v Secretary of State for Communities and Local Government [2007] EWCA Civ 795 [2007] LGR 757 at §47 (later reasons allowed); R v Northavon District Council, ex p Smith [1994] 2 AC 402, 412A-B (affidavit explaining reasons) Office of Fair Trading v IBA Health Ltd [2004] EWCA Civ 142 [2004] 4 All ER 1103 at §106 (“There is … nothing unusual, particularly in a case which has to be dealt with in a relatively short timescale, for the stated reasons to be amplified by evidence before the court” albeit “the Court may need to be ‘circumspect’ to ensure that this is not used as means of concealing or altering the true grounds of the decision”) R (Glenn & Co (Essex) Ltd) v HM Commissioners for Revenue and

164The

equivalent paragraph in a previous edition was relied on in R (Mott) v Environment Agency [2016] EWCA Civ 564 [2016] 1 WLR 4338 at §57 (Beatson LJ).

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Customs [2011] EWHC 2998 (Admin) [2012] 1 Cr App R 291 at §§30-36 (contemporaneous documents together with witness statements sufficient to show reasons for warrant). 64.4.12 Witness statement elaborating on planning officers’ report. R (Watermead Parish Council) v Aylesbury Vale District Council [2017] EWCA Civ 152 [2018] PTSR 43 at §35 (Lindblom LJ: “the court should always be cautious in admitting evidence which, in response to a challenge to a grant of planning permission, elaborates on the advice given by a planning officer in his report to committee – the more so when it expands at length on the advice in the report, or even differs from it. … [T]he committee considered the proposal in the light of the advice the officer gave, not the advice he might now wish to have given having seen the claim for judicial review. Of course, evidence in a planning officer’s witness statement cannot correct an error of law in the assessment of the proposal on which the committee relied when it made its decision. In some cases, however, it can shed useful light on the advice he gave to the members in his report”); {65.1.10} (whether planning officers’ report to committee deficient/significantly misleading). 64.4.13 Ex post facto justification and 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(ii) (“The Court may apply an ex post facto approach. … The [defendant] is not therefore necessarily confined to the justifications for the measure which were advanced as relevant as of the date of the decision in question”), §58(vii) (“In cases where an ex post facto justification is advanced the Court will scrutinise the evidential underpinning with particular care”); In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §52 (Lord Kerr: “Obviously, if reasons are proffered in defence of a decision which were not present to the mind of the decision-maker at the time that it was made, this will call for greater scrutiny than would be appropriate if they could be shown to have influenced the decision-maker when the particular scheme was devised. Even retrospective judgments, however, if made within the sphere of expertise of the decision-maker, are worthy of respect, provided that they are made bona fide”), §64 (suggested advantages “not to be dismissed solely because they are the product of hindsight – nor even because they have been put forward post hoc as a possible justification. … But the level of scrutiny of the validity of the claims must intensify to take account of the fact that the claims are made ex post facto”). 64.4.14 Later reasons supporting view that flawed approach. R (London Fire and Emergency Planning Authority) v Secretary of State for Communities and Local Government [2007] EWHC 1176 (Admin) [2007] LGR 591 at §67 (where expanded reasons disclose a defect, claimant entitled to rely on them because incompleteness concern inapplicable); R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977, 992E (finding unlawful approach adopted in authority’s policy, by reference to further reasoning); R v DPP, ex p Manning [2001] QB 330 (judicial review granted because of deficiency in contemporaneous note disclosed later); R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538 at §22 (chairman’s later defective reasons would justify quashing of decision even if may not have been shared by other committee members), §28 (referring to R v Legal Aid Area No 8 (Northern) Appeal Committee, ex p Angell (1991) 3 Admin LR 189). 64.4.15 Retro-reasons: other cases. Visao Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 276 (Admin) at §§46-49 (rejecting planning inspector’s witness statement claiming that he took drawings into account), §48 (“To allow a decision maker to supplement a decision letter by providing a statement setting out the matters taken into account would, save in exceptional circumstances, undermine the purpose of the decision letter”), §49 (“Given that the decision letter is a public document on which the parties and others were entitled to rely, I base my analysis on my reading of the decision letter in preference to the statements made in the inspector’s witness statement”); R (Kerswell) v Lewisham LBC [2019] EWHC 754 (Admin) at §33 (officer’s witness statement saying he took noise impact into account), §39 (“the only fair conclusion one can reach from the officer’s report was that he simply did not have any regard to the whole question of structural noise disturbance”); R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §30 (Underhill LJ, discussing the case law as to caution regarding subsequently provided reasons); R (Naidu) v SSHD 827

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[2016] EWCA Civ 156 [2016] 1 WLR 3775 at §51 (Beatson LJ: “I do not consider that … ex post facto and retrospective justification suffices in the circumstances of this case, which is concerned with a finding that a document was false and deception has been used”); R (Jedwell) v Denbighshire County Council [2015] EWCA Civ 1232 [2016] PTSR 715 (reasons for a screening opinion) at §42 (reasons permissible “to cure the deficiency” only until “the application to the court is actually made”); R (Macrae) v Herefordshire District Council [2012] EWCA Civ 457 at §40 (Pill LJ: “ex post facto reasoning is inevitably suspect”), §41 (“What is important in this context is [that] the statutory duty is discharged at the time that the decision [is] taken”); R (M) v Haringey Independent Appeal Panel [2010] EWCA Civ 1103 at §22 (Wilson LJ: “courts are required to be very cautious before allowing decision-makers to add to their reasons once their decisions have come under judicial scrutiny”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs [2007] EWCA Civ 498 [2008] QB 365 (CA) at §70 (“in principle a decision-maker who gives one set of reasons cannot, when challenged, come up with another set”) (HL is [2008] UKHL 61 [2009] AC 453); R (S) v London Borough of Brent [2002] EWCA Civ 693 [2002] ELR 556 at §26 (“it is not ordinarily open to a decision-maker who is required to give reasons to respond to a challenge by giving different or better reasons”), §44; R (Goldsmith) v London Borough of Wandsworth [2004] EWCA Civ 1170 (2004) 7 CCLR 472 at §91 (“the court has to look at the decision at the time it was made and at the manner in which it was communicated to the person or persons affected by it”); Hijazi v Kensington and Chelsea Royal LBC [2003] EWCA Civ 692 [2003] HLR 1113 at §32 (“nothing objectionable in a decision-maker making a subsequent statement in which he identifies the material that he took into account in the course of the decision-making process”); R (Richardson) v North Yorks County Council [2003] EWCA Civ 1860 [2004] 1 WLR 1920 at §39 (referring to situations where “the law regards it as acceptable to formulate and state the reasons for a decision subsequent to the decision itself”); R (Jackson) v Parole Board [2003] EWHC 2437 (Admin) at §§24-25 (Court entitled to accept Secretary of State’s evidence that written reasons document was incorrect, where no statutory duty to give reasons at same time as decision and Secretary of State able to point to a contemporaneous document pre-dating the misleading reasons document and which containing the true reasons); R (Taylor) v Maidstone Crown Court [2003] EWHC 2555 (Admin) at §§9-11 (declining to take account of Crown Court’s later reasons given with its acknowledgement of service of the judicial review claim form); R (GB) v Oxfordshire County Council [2001] EWCA Civ 1358 [2002] ELR 8 (generally not appropriate for statutory tribunal, required to give reasoned decisions, to respond to an appeal by purporting to amplify the reasons given); R v SSHD, ex p Chetta [1996] COD 463 (transcript) (given that one rationale for reasons is so that claimant knows whether decision challengeable, court criticising “Alice in Wonderland” situation where reasons only given after challenge brought); R v Tynedale District Council, ex p Shield (1990) 22 HLR 144 (court should not go behind decision letter because one purpose of statutory reasons requirement is to allow decision to be challenged); R v Doncaster Metropolitan Borough Council, ex p Nortrop (1996) 28 HLR 862, 874 (declining to look at supplementary witness statement reasons); Re P (Contact: Discretion) [1998] 2 FLR 696, 701H (magistrates, given their statutory duty to state findings and reasons, not entitled later to supplement the written record).

64.5 Remedy for lack/insufficiency of reasons.165 The appropriate remedy for a breach of the duty to give reasons, or to give legally adequate reasons, is normally the quashing of the decision to be taken afresh, rather than ordering the giving of reasons. That reflects the self-disciplining rationale of reasons and avoids the risk of post-hearing (and long after-the-event) ‘reconstruction’. 64.5.1 Analytical consequence of reasons breach. R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242, 257F-258A (reasons obligation 165The

equivalent paragraph in a previous edition was relied on in Sukhmander Singh v Permanent Secretary for Security [2007] HKCFI 917 at §33; R (Wildie) v Wakefield Metropolitan District Council [2013] EWHC 2769 (Admin) at §11 (Stephen Morris QC); Krupecki v Minister for Justice and Equality [2018] IEHC 538 at §17 (Richard Humphreys J).

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“an independent and enforceable legal obligation and hence a ground of nullity where it is violated”); R v Immigration Appeal Tribunal, ex p Khan (Mahmud) [1983] QB 790 (failure to give adequate reasons constituting an error of law); R v MacDonald (Inspector of Taxes), ex p Hutchinson and Co Ltd [1998] STC 680, 686j-687b (in statutory context where reasons an important protection, failure normally provides grounds to set aside the decision); Crean v Somerset County Council [2002] ELR 152 at §89 (on statutory appeal quash and remit for fresh decision, where failure by tribunal to grapple with key points in reasons); cf R (Gleaves) v SSHD [2004] EWHC 2522 (Admin) at §34 (here, “the adequacy of the reasons is not of itself a condition of the legality of the decision”). 64.5.2 Remedy for a reasons breach: requiring a fresh decision. R (CPRE Kent) v Dover District Council [2017] UKSC 79 [2018] 1 WLR 108 at §68 (Lord Carnwath: “This is a case where the defect in reasons goes to the heart of the justification for the [decision], and undermines its validity. The only appropriate remedy is to quash the [decision]”); R (Litvinenko) v SSHD [2014] EWHC 194 (Admin) [2014] HRLR 6 at §74 (Richards LJ: “The deficiencies in the reasons are so substantial that the decision cannot stand. The appropriate relief is a quashing order”); R (Servier Laboratories Ltd) v National Institute for Health and Clinical Excellence [2010] EWCA Civ 346 at §46 (Smith LJ, explaining why “it would be preferable for NICE to make a fresh decision”, the reasoning for that including that for the defendant to be “permitted to advance further reasons for its original decision” would involve “the inherent danger that the decision maker will use that as an opportunity to justify what may be a flawed decision”); Southall v General Medical Council [2010] EWCA Civ 484 at §4 (inappropriate to remit for further reasons here); R (C) v Financial Services Authority [2012] EWHC 1417 (Admin) at §109 (favouring remittal to a different committee for reconsideration); R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 (in context of statutory duty to give reasons, where failure to give (accurate) reasons at time of decision, claimant prima facie entitled to have the decision quashed); R v Ministry of Defence, ex p Murray [1998] COD 134 (court martial decision quashed for inadequate reasons); R v City of London Corporation, ex p Matson [1997] 1 WLR 765, 777F (decision quashed and matter remitted for fresh decision together with reasons); Stefan v General Medical Council [1999] 1 WLR 1293, 1304F (GMC ordered to rehear and reconsider); R v Number 8 Area Committee of the Legal Aid Board, ex p Megarry [1994] PIQR 476 (decision quashed, inter alia for inadequate reasons); R v London Borough of Southwark, ex p Dagou (1996) 28 HLR 72, 82 (quashing order for breach of statutory duty to give reasons); Re L (Residence: Justices’ Reasons) [1995] 2 FLR 445 (matter remitted for reconsideration by differently constituted bench); Curtis v London Rent Assessment Committee [1999] QB 92, 120G-121G (considering relationship between remedy and whether absence of reasons leading to inference of unlawfulness or unreasonableness); R v Metropolitan Borough of Sefton, ex p Healiss (1995) 27 HLR 34, 40 (decision quashed and remitted to be “considered again by the local authority, when they can ensure at least that they make it plain that they have carried out all the necessary investigations and that they give all the proper reasons for whatever decision they do subsequently arrive at”); R v Islington LBC, ex p Okocha (1998) 30 HLR 191, 202 (appropriate to quash decision; justice of the case requiring a fresh decision); Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381H (want of reasons as a self-standing ground of appeal), 379f-j (ordering new trial); Cedeno v Logan [2001] 1 WLR 86 (no prejudice to appeal despite lack of reasons, so conviction not quashed); R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538 at §27 (referring to R v Legal Aid Area No 8 (Northern) Appeal Committee, ex p Angell (1991) 3 Admin LR 189 (below) and suggesting that it could not stand with Matson (above)); R (Cleary) v HMRC [2008] EWHC 1987 (Admin) (inadequate reasons not justifying quashing decision in the circumstances); R (Midcounties Cooperative Ltd) v Forest of Dean District Council [2007] EWHC 1714 (Admin) (planning permissions quashed for breach of reasons duty). 64.5.3 Remedy for a reasons breach: ordering proper reasons. R (CPRE Kent) v Dover District Council [2017] UKSC 79 [2018] 1 WLR 108 at §§47-48 (considering case law in which remedy granted was the ordering of a statement of reasons); Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 383D (on appeal, “one alternative remedy to quashing 829

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the decision is to invite or require the court to give reasons”); English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409 at §25 (appeal court can adjourn permission to appeal and seek additional reasons); R v Legal Aid Area No 8 (Northern) Committee, ex p Angell (1991) 3 Admin LR 189, 207D (court could grant remedy of “requiring proper and adequate reasons”); Adami v Ethical Standards Officer [2005] EWCA Civ 1754 [2006] LGR 397 (permissibility of appellate court allowing appeal for inadequate reasons and remitting to specialist statutory tribunal for explanation or reconsideration); R (Macrae) v Herefordshire District Council [2012] EWCA Civ 457 at §§40-41 (inappropriate to order giving of proper reasons, attempting to reassemble the committee members who took the decision, and given that the reasons duty should be discharged at the time of the decision); cf R (Friedman) v Snaresbrook Crown Court [2019] EWHC 2209 (Admin) [2019] ACD 103 at §13 (where inadequately reasoned refusal to state a case, judicial review granted and Crown Court directed to state a case, setting out findings and evidence on which they were based); cf {3.2.15} (judicial review of refusal to state a case: deciding the substantive issue). 64.5.4 Reasons duty: declaration. R (Macrae) v Herefordshire District Council [2012] EWCA Civ 457 at §§31, 40 (CA declining to quash planning permission, but making declaration that inadequate reasons had been given, in breach of the statutory duty).

830

P65 External vitiation. Sometimes, action by a blameless public authority is vitiated by externally caused injustice or third-party action. 65.1 External injustice/vitiating third-party act

65.1 External injustice/vitiating third-party act. In a conventional judicial review case, the claimant relies on a ‘public law wrong’ for which the public authority defendant is in some way responsible. However, in some special cases the Court will intervene, in the exercise of its supervisory jurisdiction, because of a bigger picture: something has gone wrong which is external and not attributable to the public authority defendant. Recognised examples include: injustice or abuse of process caused by an anterior abuse of power; a defendant court’s decisions or proceedings made legally unsound because of third-party conduct; or public authority decision-making vitiated by reason of misleading information, misdirection or unfairness from an adviser or other relevant third party. 65.1.1 The special nature of judicial review for external wrongs. R v Burton upon Trent Magistrates Court, ex p Woolley [1995] RTR 139 at 155B (Buxton J, characterising judicial review of magistrates’ conviction for impropriety on the part of the prosecution as a “sui generis” jurisdiction beyond the conventional threefold classification of grounds for judicial review); R v Guildford Magistrates’ Court, ex p Healy [1983] 1 WLR 108, 114A (judicial review for extradition abuse “may leave one wondering precisely how a justice in such circumstances can be said to have acted in excess of jurisdiction or made an error of law”). 65.1.2 Extradition abuse of power, vitiating domestic proceedings. Tague v Governor of Full Sutton Prison [2015] EWHC 3576 (Admin) [2016] 1 Cr App R 15 at §37, discussing R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 64E (judicial review court having “power to inquire into the circumstances by which a person has been brought within the jurisdiction and if itself satisfied that it was in disregard of extradition procedures it may stay the prosecution and order the release of the accused”), 62B-C (a jurisdiction based on the rule of law), also discussed in R v Maxwell [2010] UKSC 48 [2011] 1 WLR 1837 at §§13, 56, 91-93, and in Warren v Attorney General for Jersey [2011] UKPC 10 [2012] 1 AC 22; R v Horseferry Road Magistrates’ Court, ex p Bennett (No 2) The Times 1 April 1994 (committal quashed for abuse of process); R v Staines Magistrates’ Court, ex p Westfallen [1998] 1 WLR 652 (extradition abuse must be serious); cf R v Mullen [2000] QB 520 (allowing an appeal against conviction on Bennett grounds) and R (Mullen) v SSHD [2004] UKHL 18 [2005] 1 AC 1 (the subsequent compensation claim); In re Schmidt [1995] 1 AC 339 (no inherent Bennetttype jurisdiction to stay proceedings for extradition to another state on grounds of abuse of process); A v SSHD [2005] UKHL 71 [2006] 2 AC 221 (HL discussing Bennett in context of exclusion of torture-induced evidence). 65.1.3 Proceedings in defendant court/forum vitiated by abuse of process.166 Tague v Governor of Full Sutton Prison [2015] EWHC 3576 (Admin) [2016] 1 Cr App R 15 (considering the power to stay criminal proceedings as an abuse of process, on an application for habeas corpus); R (Robert Smith) v CPS [2010] EWHC 3593 (Admin) (in judicial review, concluding that abuse of process for prosecution to proceed having previously expressed to the court an agreement to offer no evidence and accept a restraining order); R v Croydon Justices, ex p Dean [1993] QB 769 (judicial review to halt prosecution as an abuse of process, given earlier promises by police); R v Milton Keynes Magistrates’ Court, ex p Roberts The Independent 26 October 1994 (asking whether conduct degrading the rule of law or manipulating the

166The

equivalent paragraph in a previous edition was relied on in Yau Ka Po v TPB [2016] HKCFI 992 at §59 (Hon Au-Yeung J).

GROUNDS FOR JUDICIAL REVIEW

court’s process so as to cause serious prejudice); R v Maidstone Crown Court, ex p Clark [1995] 1 WLR 831 (improper use of arraignment); R v Leominster Magistrates’ Court, ex p Aston Manor Brewery Co The Times 8 January 1997 (integrity of criminal proceedings compromised); cf R (Salubi) v Bow Street Magistrates’ Court [2002] EWHC 919 (Admin) [2002] 1 WLR 3073 at §20 (normally issue of abuse of process in relation to prosecution should be resolved by the criminal courts); Panday v Virgil [2008] UKPC 24 [2008] 1 AC 1386 at §28 (abuse of process applicable where proceedings the result of abuse of executive power). 65.1.4 Blameless unfairness. {61.1.16} 65.1.5 Defendant’s decision procured by third party fraud/collusion/perjury. R v West Sussex Quarter Sessions, ex p Albert and Maud Johnson Trust Ltd [1974] QB 24, 36D-E (quashing order appropriate “where there is evidence that the decision of an inferior court has been obtained by the fraud of a party or by collusion … [or] perjury”); Colonial Bank of Australasia v Willan (1873-74) LR 5 PC 417 (whether decision of inferior court obtained by fraud); R v Knightsbridge Crown Court, ex p Goonatilleke [1986] QB 1 (fraud by prosecutor vitiating conviction); R v Wolverhampton Crown Court, ex p Crofts [1983] 1 WLR 204 (witness’s perjured evidence vitiating appeal decision). 65.1.6 Defendant’s decision procured by third-party impersonation. R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin) [2020] QB 478 (magistrates’ proceedings a nullity and no fair trial where defendant had unknowingly been impersonated by a third party). 65.1.7 Defendant court decision vitiated by actions of a prosecutor. R v Leyland Justices, ex p Hawthorn [1979] QB 283 (conviction by magistrates quashed for unfairness by prosecution); R v Harrow Crown Court, ex p Dave [1994] 1 WLR 98 (decision of Crown Court quashed for prosecution’s failure to disclose witness’s prior convictions for dishonesty); R v Maidstone Crown Court, ex p Shanks & McEwan (Southern) Ltd [1993] Env LR 340 (asking whether any “manipulation or misuse of the prosecution’s powers”); R v Thames Stipendiary Magistrate, ex p Bates [1995] COD 6 (judicial review of conviction on grounds of misconduct by prosecution: whether bad faith, gross irregularity or unjustifiable commencement of proceedings); R v Bolton Justices, ex p Scally [1991] 1 QB 537 (whether conduct ‘analogous to fraud’). 65.1.8 Defendant court decision vitiated by actions of an applicant. R (Merida Oil Traders Ltd) v Central Criminal Court [2017] EWHC 747 (Admin) [2017] 1 WLR 3680 at §89 (appropriate to quash Crown Court production orders where “misrepresentations and omissions [which] amounted to a serious breach of the duty of disclosure” by police); R (Mills) v Sussex Police [2014] EWHC 2523 (Admin) [2015] 1 WLR 2199 (Crown Court search and seizure warrant quashed for material non-disclosure by police in applying for it), §26(6) (in applying for warrant, police must act “in good faith and … for a purpose for which the power is granted”); R (B) v Huddersfield Magistrates’ Court [2014] EWHC 1089 (Admin) [2015] 1 WLR 4737 at §20 (non-disclosure); R (G) v Commissioner of Police for the Metropolis [2011] EWHC 3331 (Admin) at §§19, 24 (warrant unlawfully granted by magistrate, where police applying for it failed to give full and complete disclosure); R (Mercury Tax Group Ltd) v HM Commissioners for Revenue and Customs [2008] EWHC 2721 [2009] STC 743 at §§58, 67 (Crown Court’s decision to issue warrants unlawful, where important misrepresentation/ material non-disclosure by commissioners); PJG v Child Support Agency [2006] EWHC 423 (Fam) [2006] 2 FLR 857 (magistrates liability order quashed as being based on incorrect figures supplied by CSA); R (Marsh) v Lincoln District Magistrates Court [2003] EWHC 956 (Admin) (magistrates’ decision vitiated by CSA failure to draw attention to crucially important fact), §§34-38 (wrong to “define or delimit the ambit of what is, after all, a residual jurisdiction”; sufficient that “an irregularity producing an unjust or potentially unjust result”); R (BACI Bedfordshire Ltd) v Environment Agency [2019] EWCA Civ 1962 [2020] Env LR 16 at §53 (error by applicant for permit not an error of the defendant decision-maker, nor having any effect on the decision or process), §60 (error did not influence the decision). 832

P65 External vitiation

65.1.9 Bias/apparent bias/unfairness on the part of a third party. R (Compton) v Wiltshire Primary Care Trust [2009] EWHC 1824 (Admin) at §91 (“the bias of advisers is capable of vitiating a decision when there is a real possibility that it has adversely infected the views of the decision-maker”); R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin) [2018] PTSR 142 (judicial review challenge raising questions whether local authority actions relating to an investigation vitiated by actual or apparent bias on the part of an external solicitor instructed to assist), §149 (whether actual bias), §155 (whether apparent bias), §165 (whether risk of infecting local authority’s decision); R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at §123 (CA recognising the possibility of “tainted advice given to an independent decision-maker”, if there were apparent bias on the part of advisory steering group), §125 (question whether “a real possibility both of bias in the advice and of its infecting the decision”); R v Tandridge District Council, ex p Al Fayed [2000] 1 PLR 58, 61D-G (treating there as having been a procedural impropriety where claimant’s objection not put to specialist body whom the defendant was consulting). 65.1.10 Whether material fairly presented to decision-maker. {51.2} (whether material fairly presented/properly addressed). 65.1.11 Whether planning officers’ report to committee deficient/significantly misleading. R (Liverpool Open and Green Spaces Community Interest Co) v Liverpool City Council [2020] EWCA Civ 861 at §80 (report “liable – seriously, though innocently – to mislead the members”); R (Squire) v Shropshire Council [2019] EWCA Civ 888 [2020] 1 CMLR 2 at §55 (asking “whether the advice given to the committee [by the planning officer] was deficient or misleading in a significant way”), §60 (officer’s error in misunderstanding scope and effect of future management plan); R (Palmer) v Herefordshire Council [2016] EWCA Civ 1061 [2017] 1 WLR 411 at §8 (“[in] a claim for judicial review … based on alleged deficiencies in an officer’s report to the planning committee … [it] normally needs to be shown that the overall effect of the report significantly misleads the committee about material matters which remain uncorrected at the meeting of the planning committee before the relevant decision is taken”); R (Advearse) v Dorset Council [2020] EWHC 807 (Admin) at §§19-24, 29 (officer’s report “significantly misled councillors”, where material aspects not addressed “properly” and in a “coherent way”); R (Irving) v Mid Sussex District Council [2019] EWHC 3406 (Admin) at §60 (planning officer’s report “seriously misleading”); R (Kerswell) v Lewisham LBC [2019] EWHC 754 (Admin) (planning officer failed to take account of highly material consideration in report to committee); R (Matthews) v City of York Council [2018] EWHC 2102 (Admin) at §77 (officers’ report significantly misled the committee as to level of undersupply); Mansell v Tonbridge & Malling Borough Council [2017] EWCA Civ 1314 [2019] PTSR 1452 at §§42, 63 (whether “distinct and material defect” in planning officer’s report); R (Guerry) v Hammersmith and Fulham LBC [2018] EWHC 2899 (Admin) at §52 (council materially misled by planning officer’s report); R (Crematoria Management Ltd) v Welwyn Hatfield Borough Council [2018] EWHC 382 (Admin) [2018] PTSR 1310 at §47 (effect of officers’ report “was to significantly mislead the planning committee about a material consideration”). 65.1.12 Error/misdirection by consultee. R (Sullivan) v Warwick District Council [2003] EWHC 606 (Admin) [2003] 2 PLR 56 (misdirection by statutory consultee vitiating its advice to the council, but remedy declined because same decision would have been reached anyway); R v Secretary of State for Education and Employment, ex p Portsmouth Football Club Ltd [1998] COD 142 (consulted bodies had wrongly treated Secretary of State’s policy as though rigid criteria). 65.1.13 External misdirection. R (Buckingham) v NHS Corby Clinical Commissioning Group [2018] EWHC 2080 (Admin) [2018] ACD 111 at §78 (CGC Governing Body misled by officers, so that there was “an error of fact which is likely to have played a material part in the decision making”); R (Diocese of Menevia) v Swansea City and County Council [2015] EWHC 1436 (Admin) [2015] PTSR 1507 at §§92-94 (error of law in report to decisionmakers vitiating the decision); R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11 [2010] 2 AC 70 at §38 (error of law by inspector, whose recommendation 833

GROUNDS FOR JUDICIAL REVIEW

the local authority had adopted); cf R (Duggan) v Assistant Deputy Coroner for the Northern District of Greater London [2017] EWCA Civ 142 [2017] 1 WLR 2199 (whether coroner misdirected jury). 65.1.14 Public authority decision vitiated by third-party error/flaw. R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 347A-B (CICB’s decision vitiated by police failure to put doctor’s evidence before it); R (Stephens) v Parole Board [2020] EWHC 1486 (Admin) at §14 (Parole Board decision vitiated by lack of relevant information because of failure of offender manager to take certain steps); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 (Secretary of State relied on flawed analysis of Legal Aid Agency) at §123 (“the Decision was unlawful because it was reached on the basis of a flawed analysis on which no reasonable authority would have relied”); R (Kingston upon Hull City Council) v Secretary of State for Business, Innovation and Skills [2016] EWHC 1064 (Admin) [2016] PTSR 967 at §§60, 61 (Secretary of State’s decision, upholding Newcastle City Council’s advice, wrong in law because the advice proceeded on a misconstruction of the statute); R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) [2012] 1 WLR 838 at §§29, 33 (improper reason given by another Government department, which exerted some influence, so decision vitiated by irrelevancy and because true reasons not disclosed in consultation); R (Morris) v Trafford Healthcare NHS Trust [2006] EWHC 2334 (Admin) (2006) 9 CCLR 648 at §60 (wrongly relying on expert report where expert had been misinformed); R (Smith) v SSHD [2004] EWCA Civ 99 [2004] QB 1341 at §14 (any procedural or substantive shortcomings in the tariff decision of the Lord Chief Justice could be laid at the Secretary of State’s door “on the ground that he had acted on the advice of the Lord Chief Justice”) (HL is [2005] UKHL 51 [2006] 1 AC 159); R (Goldsmith) v London Borough of Wandsworth [2004] EWCA Civ 1170 (2004) 7 CCLR 472 (council’s decision to terminate residential placement vitiated by flaws by Care Panel whose recommendations it adopted); UB (Sri Lanka) v SSHD [2017] EWCA Civ 85 at §§16-19 (tribunal decision flawed by reason of Secretary of State’s failure to put relevant material before the tribunal). 65.1.15 Injustice exposed by external/fresh evidence. {17.2.12} (fresh evidence and precedent fact/objective fact); {17.2.13} (fresh evidence and error of fact); In re Rapier, decd [1988] QB 26 (statutory grounds for quashing a coroner’s verdict, where new evidence having subsequently come to light); R (Clarke) v Ministry of Justice [2010] EWHC 3482 (Admin) at §7 (Court quashing conviction by magistrates, upheld by the Crown Court (now functus), because of an injustice in circumstances where CPS accepting that claimant had now shown that he was innocent).

834

Also written by Mike Fordham Lender Liability: Could it happen in the UK? (1992) RECIEL The Profits of Pollution [1993] NLJ 230 A Rude Awakening: Lender Liability [1993] NLJ 750 Lender Liability: Environmental Law and Debt (Cameron May 1993) (with John Jarvis QC) Well Kept Secret: JR of County Courts [1994] Law Soc Gaz (13.4.94) Marching to Legal Maturity [1994] Law Soc Gaz (11.5.94) How to Spot a Judicial Review [1994] Law Soc Gaz (8.6.94) After O’Reilly: The Last Rites [1994] Law Soc Gaz (31.8.94) Environmental JR: An Introduction [1994] Env JRB 1 JR and Public Interest Groups [1994] Env JRB 5 Judicial Magicians: Procedural Ingenuity [1995] Law Soc Gaz (8.3.95) Public Interest Challenges and the Law Commission [1995] Env JRB 28 Commercial JR: An Introduction [1995] Com JRB 1 JR and the Bank of England [1995] Com JRB 32 Practitioner Standards [1996] JR 1 Applicant’s Pre-Leave Checklist [1996] JR 16 Respondent’s Pre-Leave Checklist [1996] JR 76 What is “Anxious Scrutiny”? [1996] JR 81 Wednesbury Successes of 1995 [1996] JR 115 Interim Relief and the Cross-Undertaking [1997] JR 136 Delay: The “Good Reason” at the Substantive Hearing [1997] JR 208 Surveying the Grounds: Key Themes in Judicial Intervention (in Leyland & Woods, Administrative Law: Facing the Future: Blackstone Press 1997) Reasons: The Third Dimension [1998] JR 158 Judicial Review Under the CPR: A Five-Minute Guide [1999] JR 93 Fresh Evidence in Judicial Review [2000] JR 18 Anxious Scrutiny, the Principle of Legality and the HRA [2000] JR 40 (with Tom de la Mare) Top 20 Cases of 1999 [2000] JR 134 Convention Case law: Judicial Warnings [2000] JR 139 Legitimate Expectation I: Domestic Principles [2000] JR 188 Human Rights Act Escapology [2000] JR 262 Identifying the Principles of Proportionality (with Tom de la Mare) (in Jowell & Cooper, Understanding Human Rights Principles: Hart Publishing 2001) Monetary Claims Against Public Authorities Part 1 [2001] JR 44 (with Gemma White) Monetary Claims Against Public Authorities Part 2 [2001] JR 109 (with Gemma White) Top 20 Cases of 2000 [2001] JR 121 The Human Rights Act So Far: 10 Basic Lessons [2001] JR 205 Legitimate Expectation II: Comparison and Prediction [2001] JR 262

The New Procedure: Is It Working? [2002] JR 14 Top 20 Cases of 2001 [2002] JR 62 Common Law Proportionality [2002] JR 110 Top 20 Cases of 2002 [2003] JR 59 Administrative Law: A Practitioner’s Long-Range Forecast [2003] JR 67 Reparation for Maladministration: Public Law’s Final Frontier [2003] JR 104 Judicial Review Cheat Sheet [2003] JR 131 Common Law Illegality of Ousting Judicial Review [2004] JR 86 The Judge At Your Shoulder: New Principles of Governmental Accountability [2004] JR 122 Top 20 Cases of 2003 [2004] JR 167 Procedural Pearls [2005] JR 90 How To Make the Administrative Court a Better Place: Some Procedural Suggestions [2006] JR 98 Permission Principles [2006] JR 176 Top 20 Cases of 2004 [2006] JR 266 Top 20 Cases of 2005 [2006] JR 270 Advising in Consultation [2007] JR 187 Disclosure Principles [2007] JR 195 Arguability Principles [2007] JR 219 Wednesbury [2007] JR 266 Judicial Review: The Future [2008] JR 66 Top 20 Cases of 2006 [2008] JR 196 Top 20 Cases of 2007 [2008] JR 200 Lord Bingham’s Legacy [2009] JR 103 Rethinking Costs in Judicial Review [2009] JR 388 (with Jessica Boyd) Public Interest Interventions in the Supreme Court: Ten Virtues [2010] JR 18 Common Law Rights [2011] JR 14 A Year in Judicial Review [2011] JR 483 The Rule of Law and Civil Constraint: Cheating the Criminal Law [2011] JR 336 Judicial Review in the Supreme Court [2012] JR 19 Secrecy, Security and Fair Trials: The UK Constitution in Transition [2012] JR 187 Immigration Detention and the Rule of Law: Safeguarding Principles (Bingham Centre for the Rule of Law 2013) (with Justine Stefanelli and Sophie Eser) A Beacon for Accountability: Anisminic (in Cases That Changed Our Lives Vol 2) (LexisNexis 2014) Streamlining Judicial Review in a Manner Consistent with the Rule of Law (Bingham Centre for the Rule of Law 2014) (with Martin Chamberlain QC, Iain Steele and Zahra Al-Rikabi) Legal Year in Overview: Constitutional & Administrative Law (in UK Supreme Court Yearbook 2015–16 Vol.7) The Year in Review: Administrative Law (in UK Supreme Court Yearbook 2017–18 Vol 9) The Counsel General for Wales’ Intervention in the Prorogation Case (in UK Supreme Court Yearbook 2018–19 Vol.10)

836

TABLE OF CASES A, Re [2010] NIQB 25������������������������������������������������������������������������������������������������������������������������������������������������������������������� 10.3 A, X and Y v SSHD [2002] EWCA Civ 1502 [2004] QB 335 (CA)���������������������������������������������������������������������������������������� 11.1.15 A v B Bank (Governor and Company of the Bank of England Intervening) [1993] QB 311��������������� 13.5.8, 31.2.5, 39.3.15, 42.1.3 A v British Broadcasting Corporation [2014] UKSC 25 [2015] AC 588������������������������������������� 7.1.2, 7.1.11, 9.4.10, 16.3.6, 59.7.2 A v Chief Constable of West Yorkshire [2002] EWCA Civ 1584 [2003] HRLR 137���������������������������������������������������������������� 9.1.16 A v Chief Constable of West Yorkshire [2004] UKHL 21 [2004] ICR 806����������������������������������������������������������������������� 8.1.2, 8.1.8 A v Essex County Council [2010] UKSC 33 [2011] 1 AC 280������������������������������������������������ 9.4.8, 26.1.7, 26.3.14, 31.2.6, 59.10.6 A v Head Teacher and Governors of Lord Grey School [2004] EWCA Civ 382 [2004] QB 1231 [2006] UKHL 14 [2006] 2 AC 363����������������������������������������������������������������������������������������������������������������� 9.4.4, 59.1.7, 59.10.6 A v Kirklees Metropolitan Borough Council [2001] EWCA Civ 582 [2001] ELR 657��������������������������� 4.1.18, 4.3.2, 17.1.5, 56.1.7 A v SSHD [2003] EWCA Civ 175 [2003] INLR 249��������������������������������������������������������������������������������������������������������������� 17.2.19 A v SSHD [2004] EWCA Civ 1123 [2005] 1 WLR 414 (CA) [2005] UKHL 71 [2006] 2 AC 221�������������������������������������������������������������������������������������������������������������� 1.2.17, 1.3.3, 7.5.3, 35.1.2, 35.1.7, 45.2.1 A v SSHD [2004] UKHL 56 [2005] 2 AC 68���������������������������������������������������������������� 6.3.11, 7.2.5, 7.6.6, 9.1.13, 12.2.11, 13.5.12, 37.1.13, 55.1.10, 58.5.1, 58.5.3, 58.5.7, 58.5.13, 59.4.4, 59.8.8, 59.8.12, 59.8.19, 59.10.12 A v SSHD [2005] UKHL 71 [2006] 2 AC 221�������������������������������������������������������������������� 4.5.11, 6.3.8–9, 6.3.11, 6.3.16–17, 7.4.7, 7.6.4–5, 35.1.10, 35.2.18, 35.3.6, 35.4.4, 59.5.15, 60.1.12, 65.1.2 AA (Pakistan) v International Protection Appeals Tribunal [2018] IEHC 497�������������������������������������������������������������������������� 43.1.9 AA (Somalia) v Entry Clearance Officer [2013] UKSC 81 [2014] 1 WLR 43�������������������������������������������������������������������������� 29.5.6 AA (Somalia) v SSHD [2007] EWCA Civ 1040 [2008] INLR 1������������������������������������������������������������������� 55.1.8, 55.1.23, 55.3.15 Aaron v Law Society [2003] EWHC 2271 (Admin)���������������������������������������������������������������������������������������������������� 19.3.20, 21.1.8 AB (Jamaica) v SSHD [2007] EWCA Civ 1302 [2008] 1 WLR 1893��������������������������������������������������������������������������������������� 20.1.6 AB v HM Advocate [2017] UKSC 25 [2017] SLT 401���������������������������������������������������������������������������������������������� 37.1.19, 59.6.10 AB v Kent County Council [2020] EWHC 109 (Admin) [2020] PTSR 746����������������������������������������������������������������������������� 56.1.2 Abdulla v Bundesrepublik Deutschland (C175/08) [2011] QB 46����������������������������������������������������������������������������������������������� 8.1.8 Aboutboul v Barnet LBC [2020] EWHC 285 (Admin) [2020] ACD 38������������������������������������������������������������������������������������ 3.2.12 Abraha v SSHD [2015] EWHC 1980 (Admin) [2015] ACD 140���������������������������������������������������������������������������������� 10.4.4, 17.4.7 Abrahaem v GMC [2008] EWHC 183 (Admin)������������������������������������������������������������������������������������������������������������������������� 61.1.6 Actavis UK Ltd v Eli Lilly and Co [2017] UKSC 48 [2018] 1 All ER 171������������������������������������������������������������������������������� 29.5.1 Adamczak-Gawrychowska v Common Services Agency [2018] CSOH 18 [2018] SLT 415���������������������������������������������������� 57.3.6 Adami v Ethical Standards Officer [2005] EWCA Civ 1754 [2006] LGR 397�������������������������������������������������������������������������� 64.5.3 Adan v Newham LBC [2001] EWCA Civ 1916 [2002] 1 WLR 2120������������������������������������������������������������������������������������� 49.3.11 Adekola v NHS England [2019] EWCA Civ 1298��������������������������������������������������������������������������������������������������������������������� 29.5.2 Adesotu v Lewisham LBC [2019] EWCA Civ 1405 [2019] 1 WLR 5637������������������������������������������������ 2.1.4, 2.5.2, 17.3.2, 49.3.2 AE Beckett & Sons (Lyndons) Ltd v Midland Electricity Plc [2001] 1 WLR 281�������������������������������������������������������������������� 29.4.3 AG v Ririnui [2015] NZCA 160���������������������������������������������������������������������������������������������������������������������������������������������������� 52.2 Agricultural, Horticultural & Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 190������ 2.1.32, 43.1.8 AH (Sudan) v SSHD [2007] UKHL 49 [2008] 1 AC 678���������������������������������������������������������������������������������������������������������� 42.1.5 Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534�������������������������������������������� 1.2.12, 6.3.11, 6.3.16, 7.1.4, 7.4.10, 7.5.2–3, 7.5.7, 9.2.11, 9.3.8, 29.3.17, 34.3.5, 35.1.3, 35.4.1–2, 46.1.17, 59.1.8, 60.1.5 Ahmed v HM Treasury (No.2) [2010] UKSC 5 [2010] 2 AC 534������������������������������������������������������������������������������������������� 24.4.18 Ahsan [2017] EWCA Civ 2009�������������������������������������������������������������������������������������������������������������������������������������� 17.3.7, 17.4.3 Ainsbury v Millington [1987] 1 WLR 379��������������������������������������������������������������������������������������������������������������������������������� 2.1.30 Air Canada v Secretary of State for Trade (No.2) [1983] 2 AC 394������������������������������������������������������������������������������������������ 27.2.6 Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin) [2020] 1 WLR 2355����������������������������������������������������������������������������������������������������������������������������������������������������� 27.1.4, 38.1.7 Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 1461 (Admin)�������������������� 49.3.1, 64.3.4 Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 2183 (Admin)�������������������� 2.6.2, 22.4.29 Akenzua v SSHD [2002] EWCA Civ 1470 [2003] 1 WLR 741������������������������������������������������������������������������������������������������� 25.2.6 Akerman v Richmond upon Thames LBC [2017] EWHC 84 (Admin) [2017] PTSR 351������������������������������������������������������ 27.3.14 Akhtar v Birmingham City Council [2011] EWCA Civ 383 [2011] HLR 474�������������������������������������������������������������������������� 64.2.4 Akinyemi v SSHD [2019] EWCA Civ 2098 [2020] 1 WLR 1843��������������������������������������������������������������������������������������������� 59.6.5 AKJ v Metropolitan Police Commissioner [2013] EWCA Civ 1342 [2014] 1 WLR 285��������������������������������������������� 7.6.13, 35.1.8 AKJ v Metropolitan Police Commissioner [2013] EWHC 32 (QB) [2013] 1 WLR 2734����������������������������������������������������������� 7.1.2 Akorita, Re LRX/16/2008 (Lands Tribunal, 12 February 2009)������������������������������������������������������������������������������������������������ 49.3.3 Al Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51 [2020] 1 WLR 1546��������������������������������������������� 22.2.12, 26.3.3, 26.3.14 Al Fawwaz [2015] EWHC 166 (Admin)���������������������������������������������������������������������������������������������������������������������������������� 57.3.12 Al Hassan-Daniel v HMRC [2010] EWCA Civ 1443 [2011] QB 866��������������������������������������������������������������������������������������� 38.4.1 Al Jedda v SSHD [2013] UKSC 62 [2014] AC 252����������������������������������������������������������������������������������������������������������������� 39.3.12 Al Khawaja v United Kingdom (2012) 54 EHRR 807��������������������������������������������������������������������������������������������������������������� 9.2.15

TABLE OF CASES Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531������������������������������������������������ 7.1.11, 7.1.13, 7.7.3, 9.2.13, 17.1.14, 22.4.22, 33.1.6–7, 35.1.10, 35.2.5, 35.2.7, 35.2.11, 61.1.31, 61.6.5 AL v SSHD [2018] EWCA Civ 278��������������������������������������������������������������������������������������������������������������������������������������������� 2.5.1 Alex Lawrie Factors Ltd v Morgan The Times 18th August 1999��������������������������������������������������������������������������������������������� 17.1.5 Ali v Birmingham City Council [2010] UKSC 8 [2010] 2 AC 39��������������������������������������������������������������������������������� 17.3.1, 59.5.9 Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799�������������������������������������������������������������������� 6.2.2, 9.1.17, 16.3.5, 29.5.6, 37.1.2, 37.1.20, 50.4.11, 50.4.13, 53.1.2, 58.4.7, 58.5.9, 58.5.12, 59.6.5 Alibkhiet v Brent LBC [2018] EWCA Civ 2742�������������������������������������������������������������������������������������������������� 2.1.9, 14.1.2, 64.1.8 Al-Jedda v United Kingdom (2011) 53 EHRR 789���������������������������������������������������������������������������������������������������������������������� 6.1.3 Allan Rutherford LLP v Legal Services Commission [2010] EWHC 3068 (Admin)�������������������������������������������������������������� 26.2.11 Allen v HM Treasury [2019] EWHC 1010 (Ch)���������������������������������������������������������������������������������������������������������� 8.1.15, 27.3.10 Al-Maki v Reyes [2017] UKSC 61 [2019] AC 735���������������������������������������������������������������������������������������������������������� 6.3.4, 16.3.7 Almazeedi v Penner [2018] UKPC 3������������������������������������������������������������������������������������������������������������������������������������������ 63.3.6 Alves v Attorney General of the British Virgin Islands [2017] UKPC 42�������������������������������������������������������������������� 27.1.4, 27.3.10 Al-Waheed v Ministry of Defence [2017] UKSC 2 [2017] AC 821������������������������������������������������������������������������������������������� 59.4.6 AM (Zimbabwe) v SSHD [2020] UKSC 17 [2020] 2 WLR 1152��������������������������������������������������������������������������������������������� 59.3.4 Amalgamated Metal Trading Ltd v City of London Police Financial Investigation Unit [2003] EWHC 703 (Comm) [2003] 1 WLR 2711��������������������������������������������������������������������������������������������������� 20.1.15, 24.2.14 Ambrose v Harris [2011] UKSC 43 [2011] 1 WLR 2435���������������������������������������������������������������������������������������������� 9.2.11, 9.2.13 Amec Civil Engineering Ltd v Secretary of State for Transport [2005] EWCA Civ 291 [2005] 1 WLR 2339������������������������� 30.1.8 Amey Highways Ltd v West Sussex County Council [2018] EWHC 1976 (TCC) [2019] PTSR 455���������������������������� 2.5.3, 26.3.5 Amjad v Steadman-Byrne [2007] EWCA Civ 625 [2007] 1 WLR 2484����������������������������������������������������������������������������������� 31.3.7 Amnesty International, Ex p The Times 11th December 1998����������������������������������������������������������������������������������������������������� 4.6.1 Amstel Group Corp v Secretary of State for Communities and Local Government [2018] EWHC 633 (Admin)�������������������� 56.1.2 Anand v Royal Borough of Kensington and Chelsea [2019] EWHC 2964 (Admin)����������������������������������������������������� 2.5.1, 41.2.17 Anderson Asphalt Ltd v Secretary for Justice [2009] HKCFI 185��������������������������������������������������������������������������������������������� 27.1.5 Anderson v Scottish Ministers [2001] UKPC D5 [2003] 2 AC 602������������������������������������������������������������������������������������������� 59.4.3 Andreou v Institute of Chartered Accountants of England and Wales [1998] 1 All ER 14������������������������������������������ 27.1.5, 27.3.13 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147���������������������������������� 1.1.7, 1.3.12, 2.1.8, 10.1.15, 10.4.12, 28.1.7, 28.1.11, 28.1.13, 28.1.17, 30.1.10, 33.2.6, 33.3.3, 39.2.2, 44.2.1, 44.3.9, 45.4.2, 47.1.1, 47.1.3, 47.1.6–8, 47.1.12–13, 47.1.21, 47.1.24–25, 64.1.5 Anns v Merton LBC [1978] AC 728������������������������������������������������������������������������������������������������������������������������������ 39.1.2, 39.2.4 Anson v HMRC [2015] UKSC 44 [2015] 4 All ER 288������������������������������������������������������������������������������������������������������������ 29.5.4 Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 [2004] QB 1124���������������������� 9.5.3, 11.1.15, 14.3.5, 17.3.1, 25.1.4, 36.3.9 Anwar v SSHD [2010] EWCA Civ 1275 [2011] 1 WLR 2552�������������������������������������������������������������������������������������� 44.1.5, 57.2.5 Anwar v SSHD [2017] EWCA Civ 2134 [2018] 1 WLR 2591������������������������������������������������������������������������������������ 1.2.15, 39.2.14 Anya v University of Oxford [2001] EWCA Civ 405 [2001] ELR 711����������������������������������������������������������������������� 64.2.2, 64.2.12 AP v Tameside Metropolitan Borough Council [2017] EWHC 65 (QB) [2017] 1 WLR 2127�������������������������������������� 9.4.8, 26.3.14 Aparau v Iceland Frozen Foods Plc [2000] 1 All ER 228�������������������������������������������������������������������������������������������������������� 47.1.15 Appeals by Governing Body of JFS, In re [2009] UKSC 1 [2009] 1 WLR 2353����������������������������� 2.1.27, 18.1.24, 22.2.22, 24.2.7, 27.3.11, 57.1.12, 57.4.2 Apple Fields Ltd v New Zealand Apple & Pear Marketing Board [1991] 1 AC 344����������������������������������������������������������������� 46.1.9 Application for Judicial Review by JR17, In re [2010] UKSC 27 [2010] HRLR 27���������������������������������������� 6.2.4, 6.2.10, 59.10.6, 61.4.2, 61.5.1, 61.6.9 Archie v Law Association of Trinidad and Tobago [2018] UKPC 23������������������������������������������������������ 7.2.7, 30.1.8, 61.2.2, 63.3.6 Arkin v Marshall [2020] EWCA Civ 620 [2020] 1 WLR 3284��������������������������������������������������������������������������� 7.7.3, 27.3.8, 35.2.7 Armes v Nottinghamshire County Council [2017] UKSC 60 [2018] AC 355������������������������������������� 11.1.2, 14.3.6, 25.2.4, 25.2.14 Arorangi Timberland Ltd v Minister of the Cook Islands National Superannuation Fund [2016] UKPC 32 [2017] 1 WLR 99������������������������������������������������������������������������������������������������� 6.3.17, 42.1.2, 55.1.17, 57.3.9, 58.1.10, 58.5.5, 64.3.6 Arowojolu v General Medical Council [2019] EWHC 3155 (Admin)��������������������������������������������������������������������������������������� 48.1.9 Arrows Ltd (No.4), In re [1995] 2 AC 75����������������������������������������������������������������������������������������������������������������������� 29.1.7, 52.2.4 AS (Afghanistan) v SSHD [2019] EWCA Civ 208 [2019] 1 WLR 3065������������������������������������������������������������������������������������ 6.1.4 AS (Somalia) v SSHD [2009] UKHL 32 [2009] 1 WLR 1385�������������������������������������������������������������������������������������������������� 4.5.11 AS (Somalia) v SSHD [2011] EWCA Civ 1319 [2012] Imm AR 217��������������������������������������������������������������������������������������� 29.1.3 Ashley v Chief Constable of Sussex Police [2008] UKHL 25 [2008] 1 AC 962��������������������������������������������������������������������� 25.2.15 Ashmore v Corporation of Lloyds [1992] 1 WLR 446������������������������������������������������������������������������������������������������������������� 19.2.21 Ashton, In re [1994] 1 AC 9�������������������������������������������������������������������������������������������������������������������������������������������� 2.1.30, 32.2.3 Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29 [2002] 1 WLR 2033�������������������������������������������������������������������� 59.7.2 Asiweh v SSHD [2019] EWCA Civ 13�������������������������������������������������������������������������������������������������������������������������� 4.1.7, 42.2.15 Assange v Swedish Prosecution Authority [2012] UKSC 22 [2012] 2 AC 471�������������������������������������� 6.3.4, 6.3.8–9, 6.3.15, 8.1.4, 29.3.5, 29.3.8, 29.4.4, 29.5.4, 35.3.9 Associated Dairies Ltd v Baines [1997] AC 524������������������������������������������������������������������������������������������������������������������������ 29.3.8 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223���������������� 13.3.5, 13.4.1, 15.2.1, 45.3.2–4, 45.4.3, 45.4.7, 52.1.1, 56.2.5, 57.1.3, 57.2.8 Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 15 [2015] AC 1399���������������������������������������������������� 9.2.15, 37.1.8

838

TABLE OF CASES Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2001] EWCA Civ 713 [2002] Ch 51 [2003] UKHL 37 [2004] 1 AC 546��������������������������������������������������������������������������������������������� 9.1.16, 9.2.10, 9.4.4 Atkinson v United States of America Government [1971] AC 197���������������������������������������������������������������������������������������������� 7.7.8 Attorney General of Trinidad and Tobago v Dumas [2017] UKPC 12 [2017] 1 WLR 1978������������������������������ 1.2.2, 7.1.5, 19.2.28, 27.3.4, 28.1.13 Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15 [2006] 1 AC 328���������������������������������������������������� 17.3.6 Attorney General v Guardian Newspapers [1987] 1 WLR 1248������������������������������������������������������������������������������������������������ 6.3.21 Attorney General v Isaac [2018] UKPC 11������������������������������������������������������������������������������������������������������������������������������ 27.3.16 Attorney General v Marquis of Ailesbury (1887) 12 App Cas 672�������������������������������������������������������������������������������������������� 41.1.4 Attorney General v News Group Newspapers Plc [1989] QB 110��������������������������������������������������������������� 17.3.12, 17.3.18, 17.4.10 Attorney General v Scotcher [2005] UKHL 36 [2005] 1 WLR 1867����������������������������������������������������������������������������������������� 59.7.3 Attorney General’s Reference No.2 of 2001 [2003] UKHL 68 [2004] 2 AC 72������������������������������������������������� 9.4.1, 9.4.5, 24.3.15, 37.1.3, 59.5.13, 59.10.11 Attorney-General of Belize v Belize Telecom Ltd [2009] UKPC 10 [2009] 2 All ER 1127����������������������������������������������������� 29.5.1 Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629����������������������������������������������������� 2.6.5, 3.2.23, 39.3.11, 40.2.3, 40.2.8, 41.1.4, 41.2.13, 61.1.17 Attorney-General of Jamaica v Williams [1998] AC 351������������������������������������������������������������������������������������������������� 7.6.8, 7.6.19 Attorney-General of the British Virgin Islands v Hartwell [2004] UKPC 12 [2004] 1 WLR 1273����������������������������������������� 25.2.13 Attorney-General of Trinidad and Tobago v Ayers-Caesar [2019] UKPC 2�������������������������� 6.1.5, 17.4.12, 19.2.16, 21.2.8, 21.2.25 Attorney-General of Trinidad and Tobago v Phillip [1995] 1 AC 396����������������������������������������������������������� 17.3.12, 40.1.4, 41.1.12 Attorney-General v Blake [2001] 1 AC 268������������������������������������������������������������������������������������������������������������������� 7.6.19, 27.1.4 Attorney-General v Ryan [1980] AC 718������������������������������������������������������������������������������������������� 28.1.14, 44.2.4, 47.1.22, 49.4.3 Attorney-General’s Reference (No.2 of 2001) [2001] EWCA Crim 1568 [2001] 1 WLR 1869 (CA) [2003] UKHL 68 [2004] 2 AC 72������������������������������������������������������������������������������������������������������������������������������������������� 14.1.5 Austin v Metropolitan Police Commissioner [2009] UKHL 5 [2009] AC 564�������������������������������������������������������������������������� 59.4.2 Autologic Holdings Plc v IRC [2005] UKHL 54 [2006] 1 AC 118�������������������������������������������������������������������������������� 27.3.7, 36.2.2 Awuku v SSHD [2012] EWHC 3690 (Admin) [2013] ACD 26������������������������������������������������������������������������������������������������� 10.1.9 AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868���������������������� 1.2.2, 1.3.9, 7.1.13, 12.3.8, 12.3.12, 22.2.3, 31.1.3, 31.1.5, 34.3.5, 35.1.3–4, 35.2.3, 37.1.15–16, 38.2.5, 38.2.7, 38.4.6, 56.2.4, 57.2.5, 58.5.2, 58.5.9, 58.5.11, 58.5.15, 59.9.4, 60.1.5 B (A Child) (Care Proceedings: Appeal), Re [2013] UKSC 33 [2013] 1 WLR 1911���������������������������������������������������� 23.3.9, 58.5.1 B (A Child) (Residence: Biological Parent), In re [2009] UKSC 5 [2009] 1 WLR 2496���������������������������������������������������������� 15.2.3 B (A Minor), Re [2001] UKHL 70 [2002] 1 WLR 258������������������������������������������������������������������������������������������������������������ 59.6.10 B (A Minor) v DPP [2000] 2 AC 428������������������������������������������������������������������������������������������������������� 7.4.7, 35.1.8, 35.2.5, 35.4.5 B (Appeal: Lack of Reasons), Re [2003] EWCA Civ 881 [2003] 2 FLR 1035����������������������������������������������������������������������� 64.2.24 B (Secure Accommodation Order), Re [2019] EWCA Civ 2025 [2020] Fam 221���������������������������������������������� 9.4.5, 16.3.5, 59.4.1 B v Auckland District Law Society [2003] UKPC 38 [2003] 2 AC 736������������������������������������������������������������������������������������ 7.6.11 B v Chief Constable of Northern Ireland [2015] EWHC 3691 (Admin) [2016] ACD 30��������������������������������� 4.6.2, 10.1.8, 24.4.13, 24.4.19, 57.1.16 B v London Borough of Harrow [1998] ELR 351 (CA)������������������������������������������������������������������������������������������������������������ 31.3.5 B v Secretary of State for Justice [2011] EWCA Civ 1608 [2012] 1 WLR 2043����������������������������������������������������������� 7.6.6, 35.2.12 B v Secretary of State for Work and Pensions [2005] 1 WLR 3796����������������������������������������������������������������������������������������� 39.2.13 B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 [2005] 1 WLR 3796����������������������������� 6.2.3, 23.2.8, 55.1.28 B v SSHD [2018] EWHC 2651 (Admin) [2018] ACD 137������������������������������������������������������������������������������������������������������ 22.4.22 Bahamas Hotel Maintenance & Allied Workers v Bahamas Hotel Catering & Allied Workers [2011] UKPC 4�������������������������������������������������������������������������������������������������������� 10.1.1, 10.1.4, 17.1.5, 19.2.16, 24.3.3, 28.1.15 Bahamas Telecommunications Company Ltd v Public Utilities Commission [2008] UKPC 10����������������������������������������������� 27.3.6 Bamboo Marketing Ltd v CCE [2012] TTHC 9������������������������������������������������������������������������������������������������������������������������� 61.1.6 Bank Mellat v HM Treasury (No.2) [2011] EWCA Civ 1 [2012] QB 101 [2013] UKSC 38 [2014] AC 700���������������� 7.1.2, 11.1.5, 14.1.2, 15.1.3, 21.5.21, 30.1.6, 31.1.6, 32.1.10, 34.3.5, 37.1.4, 55.1.9–10, 57.3.11, 58.5.2, 61.1.11, 61.2.5, 61.3.2, 61.5.6 Banks v Kingston-upon Thames [2008] EWCA Civ 1443 [2009] LGR 536��������������������������������������������������������������������������� 32.4.15 Banks v Kingston-upon-Thames [2008] EWCA Civ 1443 [2009] LGR 536����������������������������������������������������������������������������� 61.3.6 Barker, In re 17 Ch D 241����������������������������������������������������������������������������������������������������������������������������������������������������������� 41.1.4 Barlow v Secretary of State for Housing, Communities and Local Government [2019] EWHC 146 (QB)������ 4.2.10, 61.6.7, 61.7.1 Barnard v Gorman [1941] AC 378���������������������������������������������������������������������������������������������������������������������� 7.4.10, 18.4.7, 49.1.4 Barnard v National Dock Labour Board [1953] 2 QB 18��������������������������������������������������������������������������������������������������������� 47.1.14 Barnett v Commissioner of Police [2012] TTHC 82������������������������������������������������������������������������������������������������������������������ 61.1.6 Barraclough v Brown ([1897] AC 615���������������������������������������������������������������������������������������������������������������������������������������� 36.2.2 Barrick [2020] PGNC 199������������������������������������������������������������������������������������������������������������������������������������������������������������� 10.4 Bates v Lord Hailsham [1972] 1 WLR 1373�������������������������������������������������������������������������������������������������������������������������������� 4.6.3 Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303��������������������������������������������������������������������������� 56.2.10 Bayer Plc v NHS Darlington CCG [2020] EWCA Civ 449 [2020] PTSR 1153�������������������������������������������������������������������� 32.5.5–6 BBC v Sugar [2009] UKHL 9 [2009] 1 WLR 430��������������������������������������������������������������������������������������������� 5.1.2, 11.1.13, 34.1.5 BBC v Sugar (No.2) [2012] UKSC 4 [2012] 1 WLR 439���������������������������������������������������������������������������������� 9.2.13, 16.4.9, 59.7.3 BDW Trading Ltd v Secretary of State for Communities and Local Government [2016] EWCA Civ 493 [2017] PTSR 1337����������������������������������������������������������������������������������������������������������������������������������������������������������������� 23.3.13

839

TABLE OF CASES BDW Trading v Secretary of State for Communities and Local Government [2016] EWCA Civ 493 [2017] PTSR 1337������ 13.1.1 Beadle v HMRC [2020] EWCA Civ 562���������������������������������������������������������������������������������������������������������������������� 27.3.15, 44.3.6 Beau Songe Developments Ltd v United Basalt Products Ltd [2018] UKPC 1������������������������������������������������������������������������� 16.4.4 Beggs v Scottish Ministers [2007] UKHL 3 [2007] 1 WLR 455����������������������������������������������������������������������������������������������� 20.1.6 Beghal v DPP [2015] UKSC 49 [2016] AC 88������������������������������������������������������������������ 1.2.19, 7.2.1, 7.4.7, 7.6.10, 14.1.2, 31.1.6, 37.1.16, 37.1.21, 59.1.5, 59.1.8, 59.6.10 Begum v Special Immigration Appeals Commission [2020] EWCA Civ 918��������������������������������������� 3.2.24, 21.4.4, 36.1.3, 61.7.5 Begum v Tower Hamlets LBC [2002] EWCA Civ 239 [2002] 1 WLR 2491 (CA)��������������������������������������������������������������������� 9.1.8 Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430�������������������������������������������� 2.5.2, 13.1.7, 15.2.4, 22.2.26, 30.1.8, 49.3.2, 49.4.1, 59.5.9, 59.5.17 Behluli [1998] Imm AR 407����������������������������������������������������������������������������������������������������������������������������������������������������� 41.1.17 Belfast City Council, Re [2008] NIQB 13���������������������������������������������������������������������������������������������������������������������������������� 48.2.4 Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 [2007] 1 WLR 1420�������� 58.4.1, 58.4.5, 58.4.7, 59.9.4, 61.3.5, 61.6.7 Belhaj v Straw [2017] UKSC 3 [2017] AC 964����������������������������������������������������������������������������������������������������������� 6.3.10, 34.4.23 Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2003] UKPC 63 [2003] 1 WLR 2839���������������������������������������������������������������������������������������������������������������������� 20.2.1, 20.2.15 Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6 [2004] Env LR 761������������������������������������������������������������������������������������������������������������������������� 10.4.2, 10.4.11 Belize Bank Ltd v Attorney General of Belize [2011] UKPC 36����������������������������������������������������������������������� 63.3.1, 63.3.3, 63.3.6 Bellinger v Bellinger [2003] UKHL 21 [2003] 2 AC 467�������������������������������������������������������������� 9.3.5, 12.2.11–12, 46.2.3, 59.8.19 Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 [2017] ICR 1327�������������������������������� 6.3.10, 7.5.3, 8.1.11, 12.1.2, 16.3.7, 21.5.24, 59.5.14 Bennett v H.M. Advocate The Times 2nd December 1994������������������������������������������������������������������������������������������������������ 17.3.20 Beoku-Betts v SSHD [2008] UKHL 39 [2009] AC 115������������������������������������������������������������������������������������������������������������� 59.6.5 Berkeley v Secretary of State for the Environment [2001] 2 AC 603������������������������������������������������������������ 4.2.10, 24.3.15, 46.1.19 Berkeley v Secretary of State for the Environment (No.2) The Times 7th April 1998������������������������������������������������������������ 18.1.23 BES Commercial Electricity Ltd v Cheshire West and Chester Borough Council [2019] EWHC 748 (QB)�������������������������� 27.3.10 Beswick v Beswick [1968] AC 58���������������������������������������������������������������������������������������������������������������������������������������������� 29.1.7 BF (Eritrea) v SSHD [2019] EWCA Civ 872 [2020] 4 WLR 38��������������������������������������� 3.2.4, 4.5.10, 5.2.9, 5.3.2, 14.1.16, 32.5.6 Bhatia Best Ltd v Lord Chancellor [2014] EWHC 746 (QB) [2014] 1 WLR 3487������������������������������������������������������� 16.3.2, 48.2.4 Bioplus Life Sciences Private Ltd v Secretary of State for Health [2020] EWHC 329 (QB)���������������������������������������������������� 8.1.15 Birkdale District Electricity Supply Co Ltd v Southport Corporation [1926] AC 355�������������������������������������������������������������� 40.1.1 Birmingham City Council v Afsar [2019] EWHC 1560 (QB)������������������������������������������������������������������������������������������������� 20.1.10 Birmingham City Council v Afsar [2019] EWHC 3217 (QB)����������������������������������������������������������������������������������������������������� 9.4.5 Birmingham City Council v Birmingham College of Food [1996] ELR 1������������������������������������������������������������������������������ 26.3.19 Birmingham City Council v Jones [2018] EWCA Civ 1189 [2019] QB 521����������������������������������������������������������������������������� 59.5.3 Birmingham City Council v Oakley [2001] 1 AC 617������������������������������������������������������������������������������������������������������������� 29.3.17 Bisson [2017] JRA 156��������������������������������������������������������������������������������������������������������������������������������������������������������������� 21.2.2 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591������������������������������������� 29.1.3, 29.3.7 Blackland Park Exploration Ltd v Environment Agency [2003] EWCA Civ 1795 [2004] Env LR 652��������������������������������� 24.2.16 Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] UKSC 25 [2011] 1 WLR 1546������������������������������������������������������������������������������������������������������������������������������������������� 8.1.9, 29.1.2, 29.3.6 BM [2016] EWHC 3338������������������������������������������������������������������������������������������������������������������������������������������������������������������ 4.2 Board of Education v Rice [1911] AC 179������������������������������������������������������� 7.7.1, 30.1.7–8, 52.1.1, 52.2.4, 61.5.9, 61.6.2, 64.1.5 Bobb v Manning [2006] UKPC 22 [2006] 4 LRC 735������������������������������������������������������������������������������� 1.2.2, 1.3.3, 5.1.3, 34.4.18 Boddington v British Transport Police [1999] 2 AC 143���������������������������������������������������� 7.5.2, 7.5.7, 24.3.15, 27.2.8, 27.3.13–14, 42.1.2, 42.2.12, 44.1.5, 44.3.1–2, 45.2.3, 45.4.1, 45.4.3, 48.2.4, 57.1.9, 61.1.22 Bolton Metropolitan Borough Council v Secretary of State for the Environment (1995) [2017] PTSR 1091�������������������������� 64.3.3 Bolton Metropolitan District Council v Secretary of State for the Environment (1995) [2017] PTSR 1091�������������������������� 64.2.14 Bonner v Secretary of State for Justice [2018] EWHC 2819 (Admin)��������������������������������������������������������������������������������������� 24.3.4 An Bord Bainne Co-operative Ltd v Milk Marketing Board [1984] 2 CMLR 584�������������������������������������������������������������������� 27.1.5 Bovale Ltd v Secretary of State for Communities and Local Government [2009] EWCA Civ 171 [2009] 1 WLR 2274��������� 2.1.22 Bowen-West v Secretary of State for Communities & Local Government [2012] EWCA Civ 321 [2012] Env LR 448���������� 13.2.1 Bowman v Fels [2005] EWCA Civ 226 [2005] 1 WLR 3083���������������������������������������������������������������������������� 3.2.16, 4.5.6, 24.2.16 BPP Holdings Ltd v HMRC [2017] UKSC 55 [2017] 1 WLR 2945���������������������������������������������������������������������� 3.1.13–14, 23.3.22 BR (Iran) v SSHD [2007] 1 WLR 2278����������������������������������������������������������������������������������������������������������������������������������� 26.3.19 Brabazon-Drenning v United Kingdom Central Council for Nursing Midwifery and Health Visiting [2001] HRLR 91���������������������������������������������������������������������������������������������������������������������������������������������� 4.2.9, 31.3.4, 32.3.15 Bradbury v Enfield LBC [1967] 1 WLR 1311���������������������������������������������������������������������������������������������������� 1.2.4, 24.4.15, 61.4.2 Bradlaugh, Ex p (1878) 3 QBD 509����������������������������������������������������������������������������������������������������������������������������������������� 28.1.11 Bradley v Jockey Club [2005] EWCA Civ 1056���������������������������������������������������������������������������������������������������������������������� 27.2.10 Bradley v The Jockey Club [2005] EWCA Civ 1056��������������������������������������������������������������������������������������������������������� 7.7.9, 7.8.4 Braganza v BP Shipping Ltd [2015] UKSC 17 [2015] 1 WLR 1661������������������������������������������� 7.8.4, 25.3.3, 27.2.10–11, 57.1.5–6 Bramston v Haut [2012] EWCA Civ 1637 [2013] 1 WLR 1720������������������������������������������������������������������������������������������������ 57.2.7 Breen v Amalgamated Engineering Union [1971] 2 QB 175����������������������������������������������������������������������������������������� 54.2.2, 64.4.4 Brewster, In re [2017] UKSC 8 [2017] 1 WLR 519���������������������������������������������������������������� 13.5.4, 14.1.6, 15.5.1, 37.1.6, 37.1.19, 37.1.21, 45.2.1, 58.4.3–4, 58.5.3, 59.8.15, 59.8.17–18, 59.9.1, 59.9.3, 64.4.13

840

TABLE OF CASES British Airways Board v Laker Airways Ltd [1984] QB 142����������������������������������������������������������������������������������������������������� 3.2.20 British Oxygen Co Ltd v Board of Trade [1971] AC 610����������������������������������������������������������� 4.6.2, 45.4.5, 50.1.7, 52.1.1, 55.1.27 British Pregnancy Advisory Service v Secretary of State for Health [2011] EWHC 235 (Admin) [2012] 1 WLR 580����������������������������������������������������������������������������������������������������������������������������������������������� 24.2.15–16, 27.2.6 British Sky Broadcasting Group Plc v Competition Commission [2010] EWCA Civ 2 [2010] 2 All ER 907�������������������������� 31.1.7 British Steel Plc v Commissioners for Customs & Excise [1997] 2 All ER 366���������������������������������������������������������������������� 27.3.11 British Telecommunications Plc v Competition Commission [2012] CAT 11��������������������������������������������������������������������������� 15.1.1 British Union for the Abolition of Vivisection v SSHD [2014] EWHC 43 (Admin) [2014] ACD 69������������������������������������� 17.5.20 Broads Authority v Fry [2015] EWHC 4139 (Admin) [2017] PTSR 1������������������������������������������������������������������������������������ 46.1.12 Broadview Energy Developments Ltd v Secretary of State for Communities and Local Government [2016] EWCA Civ 562������������������������������������������������������������������������������������������������������������������������������������������������������������ 61.5.1 Bromley LBC v Greater London Council [1983] 1 AC 768������������������������������������������������������ 5.3.1, 26.1.9, 29.3.8, 30.1.5, 39.2.15, 45.3.4, 45.4.3, 45.4.6, 57.2.8, 57.4.10 Brooks v DPP [1994] 1 AC 568�������������������������������������������������������������������������������������������������������������������������������������������������� 39.1.8 Broughal v Walsh Brothers Builders Ltd [2018] EWCA Civ 1610 [2018] 1 WLR 5781�������������������������������������������������������� 22.4.10 Brown v Parole Board [2017] UKSC 69 [2018] AC 1������������������������������������������������������������������������������� 9.1.6, 9.2.4, 9.2.14, 59.4.6 Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681����������������������������������������� 11.1.15, 29.5.4, 37.1.11, 58.5.6, 59.5.6 Brownlee, In re [2014] UKSC 4 [2014] NI 188������������������������������������������������������������������������������������������������������������� 24.3.2, 56.1.4 Bruce v Worthing Borough Council (1994) 26 HLR 223����������������������������������������������������������������������������������������������������������� 17.1.5 Bryson Recycling Ltd, Re [2014] NIQB 9��������������������������������������������������������������������������������������������������������������������������������� 17.6.2 BT Plc v Ofcom [2011] CAT 5��������������������������������������������������������������������������������������������������������������������������������������������������� 61.1.6 Bubb v Wandsworth LBC [2011] EWCA Civ 1285 [2012] 44�������������������������������������������������������������������������������������������������� 17.3.2 Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468���������������������������������������������������������������������������������������������������������������� 63.3.1 Buchanan v Jennings [2004] UKPC 36 [2005] 1 AC 115���������������������������������������������������������������������������������������������������������� 27.4.5 Buckinghamshire County Council v Secretary of State for the Environment, Transport and the Regions [2001] 1 PLR 38�������������������������������������������������������������������������������������������������������������������������������������������������������������������� 54.1.22 Bugg v DPP [1993] QB 473������������������������������������������������������������������������������������������������������������������������������� 2.1.30, 44.1.6, 52.1.2 Building Authority [2013] HKCA 387������������������������������������������������������������������������������������������������������������������������������������������ 10.4 Bulale v SSHD [2008] EWCA Civ 806 [2009] QB 536������������������������������������������������������������������������������������������������������������� 6.3.21 Burton v Mellham Ltd [2006] UKHL 6 [2006] 1 WLR 2820�������������������������������������������������������������������������������������������������� 29.3.12 Bushell v Secretary of State for the Environment [1981] AC 75�������������������������������������������� 7.7.3, 16.5.6, 26.1.8, 30.1.2–3, 61.2.7, 61.5.7, 61.5.9, 61.6.9, 61.6.11, 61.7.6 BX v SSHD [2010] EWCA Civ 481 [2010] 1 WLR 2463����������������������������������������������������������������������� 4.2.5, 20.2.2, 31.2.5, 36.4.2 BY v Cyprus [2019] EWHC 2637 (Admin)����������������������������������������������������������������������������������������������������������������������������� 23.3.10 Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762���������������������������������������������������������������������������������������������� 52.1.3 C (care proceedings: disclosure of local authority’s decision-making process), Re [2002] EWHC 1379 (Fam) [2002] FCR 673����������������������������������������������������������������������������������������������������������������������������������������������������������������������� 36.4.5 C (Children), In re [2018] UKSC 8 [2019] AC 1������������������������������������������������������������������������������������������������������������������������� 6.3.3 C v A Local Authority [2011] EWHC 1539 (Admin) (2011) 14 CCLR 471������������������������������������������������������������������������������ 3.2.21 C v Bury Metropolitan Borough Council [2002] EWHC 1438 (Fam) [2002] 2 FLR 868������������������������������������������������������� 17.4.11 Cachia v Faluyi [2001] EWCA Civ 998 [2001] 1 WLR 1966������������������������������������������������������������������������������������������ 2.1.9, 23.2.8 Cadder v HM Advocate [2010] UKSC 43 [2010] 1 WLR 2601��������������������������������������������������������������������������� 9.2.4, 9.2.7, 24.4.17 Calveley v Chief Constable of Merseyside [1989] AC 1228������������������������������������������������������������������������������������������ 2.6.16, 25.2.9 Calvin v Carr [1980] AC 574�������������������������������������������������������������������������������������� 27.2.6, 31.1.4, 36.1.10, 36.4.4, 44.3.5, 61.1.25 Camden LBC v SSHD [2019] EWHC 2537 (Admin)�������������������������������������������������������������������������������������������������������������� 61.6.13 Camelot Group Plc v Centaur Communications Ltd [1999] QB 124����������������������������������������������������������������������������������������� 6.3.21 Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133 (QB) [2007] 1 WLR 163��������������������������������������������� 9.4.4, 9.4.8 Campbell v MGN Ltd [2004] UKHL 22 [2004] 2 AC 457�������������������������������������������������������������������������������������������������������� 59.7.2 Campbell v MGN Ltd (No.2) [2005] UKHL 61 [2005] 1 WLR 3394��������������������������������������������������������������������������������������� 58.5.5 Cannock Chase District Council v Kelly [1978] 1 WLR 1�������������������������������������������������������������������������������������������������������� 52.1.4 Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin)��������������������������������������������������������������������������������������������������������� 2.5.2, 4.2.3, 4.2.7, 4.4.6, 15.1.2, 24.3.5, 51.2.4, 55.1.22, 57.3.3 Capital Rich [2007] HKCA 14������������������������������������������������������������������������������������������������������������������������������������������������������� 10.4 Capital Rich v Town Planning Board [2007] HKCA 14������������������������������������������������������������������������������������������������������������� 64.1.7 Cart [2012] 1 AC 663�������������������������������������������������������������������������������������������������������������������������������������������������������� 1.3.8, 28.1.4 Carter v Minister for Education and Skills [2018] IEHC 539���������������������������������������������������������������������������������������������������� 56.1.3 Cartlidge v Chief Adjudication Officer [1986] QB 360������������������������������������������������������������������������������������������������������������ 55.1.24 Cartwright v Superintendent of Her Majesty’s Prison [2004] UKPC 10 [2004] 1 WLR 902���������������������������������������������������� 3.2.17 Catchpole v Buckinghamshire County Council [1998] ELR 463�������������������������������������������������������������������������������������������� 26.3.10 Catherine Lucy Clegg, In the matter of an inquest into the death of [1997] COD 166������������������������������������������������������������ 18.1.23 CC & C Ltd v HMRC [2014] EWCA Civ 1653 [2015] 1 WLR 4043������������������������������������������������������������������������ 20.1.16, 36.3.23 Cedeno v Logan [2001] 1 WLR 86��������������������������������������������������������������������������������������������������������������������������������������������� 64.5.2 Celczynski v Polish Judicial Authority [2019] EWHC 3450 (Admin) [2020] 4 WLR 21��������������������������������������������������������� 3.2.13 Cemex (UK) Operations Ltd v Richmondshire District Council [2018] EWHC 3526 (Admin)������� 4.1.20, 14.2.3, 42.1.3, 64.4.7–8 Central Broadcasting Services Ltd v Attorney General of Trinidad and Tobago [2006] UKPC 35 [2006] 1 WLR 2891��������������������������������������������������������������������������������������������������������������������������������������������������������������� 10.4.13 Central Broadcasting Services Ltd v Attorney General of Trinidad and Tobago [2018] UKPC 6������������������������������������������� 64.2.24 Century National Merchant Bank and Trust Co Ltd v Davies [1998] AC 628������������������������� 31.3.19, 36.2.2, 36.4.3, 61.3.9, 61.5.6

841

TABLE OF CASES Ceylon University v Fernando [1960] 1 WLR 223����������������������������������������������������������������� 27.2.6, 31.3.9, 45.4.5, 52.1.3, 61.1.25, 61.2.7, 61.5.9, 61.6.3, 61.7.6 CF v SSHD [2004] EWHC 111 (Fam) [2004] 1 FCR 577������������������������������������������������������������������� 17.4.11, 17.6.4, 17.6.7, 27.2.6 CH v Sutton & Merton Primary Care Trust [2004] EWHC 2984 (Admin) (2005) 8 CCLR 5������������������������������������������������� 17.3.17 Champion v Chief Constable of the Gwent Constabulary [1990] 1 WLR 1������������������������������������������ 14.2.3, 15.4.1, 30.1.7, 34.5.9 Chan Mei Yiu Paddy [2008] 3 HKC 182��������������������������������������������������������������������������������������������������������������������������������������� 10.4 Chan Mei Yiu Paddy v Secretary of Justice [2008] HKCFI 337������������������������������������������������������������������������������������������������ 17.3.2 Chand v PSAB [2008] FJHC 463����������������������������������������������������������������������������������������������������������������������������������������������� 15.4.3 Channel Tunnel Group v Secretary of State for Transport [2019] EWHC 419 (TCC)������������������������������������������������� 3.2.20, 21.5.17 Chatfield & Co v IRC [2017] NZHC 3289 [2018] 2 NZLR 835������������������������������������������������������������������������������������������������ 42.2.1 Chau Siu Woon [2010] HKCA 107��������������������������������������������������������������������������������������������������������������������������������������������� 63.3.1 Cheall v Association of Professional Executive Clerical & Computer Staff [1983] 2 AC 180�������������������������� 27.2.6, 61.1.6, 61.5.7 Checkprice (UK) Ltd v Her Majesty’s Commissioners for Revenue & Customs [2010] EWHC 682 (Admin) [2010] STC 1153������������������������������������������������������������������������������������������������������������������������������������������������������������������� 25.2.15 Cheltenham BC v Laird [2009] EWHC 1253 (QB)�������������������������������������������������������������������������������������������������������������������� 61.2.3 Chen v Government of Romania [2007] EWHC 520 (Admin) [2008] 1 All ER 851���������������������������������������������������� 3.2.13, 47.1.3 Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735����������������������������������������������� 2.1.30, 13.3.4–5, 27.2.6, 29.2.7, 29.3.18, 55.1.5, 57.4.10 Cheshire County Council v Secretary of State for the Environment [1995] Env LR 316�������������������������������������������������������� 49.3.12 Chester v Bateson [1920] 1 KB 829��������������������������������������������������������������������������������������������������������������������������������������������� 7.5.3 Chesterfield Poultry Ltd v Sheffield Magistrates’ Court [2019] EWHC 2953 (Admin) [2020] 1 WLR 499������������� 32.3.16, 47.1.12 Chesterfield Properties Plc v Secretary of State for the Environment [1998] JPL 568�������� 7.6.19, 32.4.11, 42.2.13, 56.3.7, 58.3.23 Chief Adjudication Officer v Foster [1993] AC 754������������������������������������������������������������������� 3.2.16, 4.5.11, 29.4.3, 29.4.9, 45.4.3 Chief Constable of Avon and Somerset Constabulary v Gray [2019] EWHC 1954 (QB)������������������������������������������������������� 21.5.33 Chief Constable of Merseyside Police v Harrison [2006] EWHC 1106 (Admin) [2007] QB 79����������������������������������������������� 29.4.3 Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155���������������������������������� 2.6.22, 5.1.2, 15.1.1, 15.3.1, 15.5.2, 17.3.12, 17.3.15, 18.4.5, 24.2.9, 24.3.15, 24.4.22, 26.1.12, 26.3.12, 26.3.14, 30.1.7–8, 31.4.1, 34.5.9, 39.2.2, 44.1.1, 45.4.5, 61.1.5, 61.1.22, 64.1.5 Chief Executive LINZ v Te Whanau O Rangiwhakaahu Hapu Charitable Trust [2013] NZCA 33 (New Zealand Court of Appeal)���������������������������������������������������������������������������������������������������������������������������������������������� 17.2.9 Chief Executive of the Hong Kong Special Administrative Region v President of the Legislative Council [2017] HKCFI 1234������������������������������������������������������������������������������������������������������������������������������������������������������������������� 52.2 Chief Fire Officer v Felix-Phillip [2020] UKPC 12����������������������������������������������������������������������������������������������������� 29.1.2, 58.3.24 A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent), Re [2017] EWCA Civ 2164 [2018] 4 WLR 60������������������������������������������������������������������������������������������������������������������������������������������������������� 37.1.21, 59.8.8 A (Children) (Judgment: Adequacy of Reasoning), In re [2011] EWCA Civ 1205 [2012] 1 WLR 595���������������������������������� 64.2.24 Christian Institute, Re The [2007] NIQB 66������������������������������������������������������������������������������������������������������������������������������� 58.5.2 Christian Institute v Lord Advocate [2016] UKSC 51 [2016] SLT 805��������������������������������������������������� 2.6.22, 4.6.6, 59.1.8, 59.6.8 Chuan v Public Prosecutor [1981] AC 648����������������������������������������������������������������������������������������������������������������������������������� 7.7.5 Chundawadra [1988] Imm AR 161������������������������������������������������������������������������������������������������������������������������������������������� 41.1.17 CI (Nigeria) v SSHD [2019] EWCA Civ 2027����������������������������������������������������������������������������������������������������������������������������� 6.2.6 Cinnamond v British Airports Authority [1980] 1 WLR 582������������������������������������������������������������������������������������������������������� 5.3.1 Cinzano (UK) Ltd v Customs & Excise Commissioners [1985] 1 WLR 484������������������������������������������������������������������ 5.1.2, 29.3.8 City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447������������������������������������������������������� 56.3.2, 64.3.3 Civil Nuclear Police Federation v Civil Nuclear Police Authority [2016] EWHC 2186 (Admin) [2016] ACD 112���������������������������������������������������������������������������������������������������������������������������������������������������������� 29.3.3, 34.5.9 Clark v Kelly [2003] UKPC D1 [2004] 1 AC 681�������������������������������������������������������������������������������������������������������������������� 59.5.11 Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988�������������� 10.2.7, 13.3.4, 27.3.6, 27.3.11, 27.3.13, 34.4.19 Clarke Homes Ltd v Secretary of State for the Environment (1993) [2017] PTSR 1081���������������������������������������������������������� 64.3.2 Clegg, In re [1997] COD 166��������������������������������������������������������������������������������������������������������������������������������������������������� 18.1.17 Clift v Slough Borough Council [2010] EWCA Civ 1171 [2011] 1 WLR 1774���������������������������������������������������������������������� 25.2.15 CMA v Concordia International RX (UK) [2018] EWCA Civ 1881 [2019] 1 All ER 699������������������������������������������������������ 21.5.22 CNTA v Commission [1975] ECR 533���������������������������������������������������������������������������������������������������������������������������������������� 8.1.5 C.O. Williams Construction v Donald George Blackman [1995] 1 WLR 102������������������������������������������������� 24.3.12, 25.3.5, 45.1.6 Cocks v Thanet District Council [1983] 2 AC 286����������������������������������� 2.1.14, 2.6.7, 2.6.9, 10.3.1, 13.3.5, 17.4.7, 27.3.5, 27.3.13 Colgan v Kennel Club 26th October 2001 unrep�������������������������������������������������������������������������������������������������������������������������� 7.8.4 Colley v Council for Licensed Conveyancers [2001] EWCA Civ 1137 [2002] 1 WLR 160������������������������������������������������������� 7.5.1 Colonial Bank of Australasia v Willan (1873–74) LR 5 PC 417������������������������������������������������������������������������������������������������ 65.1.5 Commissioner of Police v Benjamin [2014] UKPC 8���������������������������������������������������������������������������������������� 32.3.3, 50.2.1, 50.2.3 Commissioner of Police v Skip Patrick Davis [1994] 1 AC 283������������������������������������������������������������������������������������������������ 43.1.2 Commissioner of the Independent Commission of Investigations v Police Federation [2020] UKPC 11���������������������������������������������������������������������������������������������������������������������������������������� 6.1.1, 6.1.4, 6.1.8, 32.3.3 Company, In re a [1981] AC 374���������������������������������������������������������������������������������������������� 33.2.6, 34.4.1, 44.2.3, 47.1.26, 64.1.7 Competition and Markets Authority v Flynn Pharma Ltd [2020] EWCA Civ 339�������������������������������������������������������������������� 15.4.2 Competition and Markets Authority v Flynn Pharma Ltd [2020] EWCA Civ 617������������������������������������������������������������������ 18.1.20 Congreve v Home Office [1976] QB 629������������������������������������������������������������������������������������������������������������������� 45.3.7, 52.2.1–2 Connelly v DPP [1964] AC 1254������������������������������������������������������������������������������������������������������������������������������������������������ 1.2.16 Cook v Southend Borough Council [1990] 2 QB 1�������������������������������������������������������������������������������������������������������������������� 38.1.2

842

TABLE OF CASES Cooper v Attorney General [2010] EWCA Civ 464 [2011] QB 976������������������������������������������������������������������������������������������ 8.1.15 Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180�������������������������������������������������������������������������������������� 7.7.1, 61.3.2 Cooper v Wandsworth Board of Works (1863) 14 CBNS 180����������������������������������������������������������������������������������������� 7.7.4, 61.2.4 Copeland v Smith [2000] 1 All ER 457������������������������������������������������������������������������������������������������������������������������������������ 11.1.21 Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932 [2005] HRLR 1136�������������������������������������������������������������������������� 9.2.8 Corey, In re [2013] UKSC 76 [2014] AC 516�������������������������������������������������������������������������������������������������������������� 24.4.12, 59.4.5 Cosar v Governor of HMP Wandsworth [2020] EWHC 1142 (Admin) [2020] ACD 80��������������������������������� 3.2.23, 39.2.14, 61.3.5 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374������������������������ 1.1.3, 5.1.2, 6.1.8, 11.1.6, 13.5.12, 15.4.1, 30.1.8, 30.1.10, 32.1.7, 33.1.3, 33.4.2, 34.2.10–11, 34.3.3, 34.4.9, 41.1.4, 41.2.2, 45.1.1, 48.1.1, 49.4.2, 50.4.11, 54.1.8, 57.2.5, 58.3.6, 61.1.6, 61.2.7, 61.4.1, 61.7.1 Coventry City Council v Finnie (1997) 29 HLR 658��������������������������������������������������������������������������������������������������������������� 20.2.15 Coventry v Lawrence [2015] UKSC 50 [2015] 1 WLR 3485���������������������������������������������������������������������������������������������������� 59.9.4 Cox v Ministry of Justice [2016] UKSC 10 [2016] AC 660������������������������������������������������������������������������������������������������������ 25.2.4 Cozens v Brutus [1973] AC 854������������������������������������������������������������������������������������������������������������������������������������������������� 48.1.7 CR Smith Glaziers (Dunfermline) Ltd v Customs and Excise Commissioners [2003] UKHL 7 [2003] 1 WLR 656������������� 37.1.12 Cranage Parish Council v First Secretary of State [2004] EWHC 2949 (Admin)���������������������������������������������������������������������� 16.4.5 Crean v Somerset County Council [2002] ELR 152������������������������������������������������������������������������������������������������������������������ 64.5.1 Credit Suisse v Allerdale Borough Council [1997] QB 306��������������������������� 24.3.4, 24.3.15, 27.1.4, 27.2.9, 27.3.14, 44.2.1, 45.2.3 Creednz Inc v Governor-General [1981] 1 NZLR 172��������������������������������������������������������������������������������������������������������������� 56.2.1 Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1175������������������������������������������������������������������������������������������������������������������������ 2.2.6, 4.2.4, 24.3.14, 24.4.3 Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54 [2019] PTSR 1406��������������������������������������������������������������������������������������������������������� 2.4.2, 3.2.2, 21.1.1, 22.1.26, 26.1.2, 28.2.3 Crompton v General Medical Council [1981] 1 WLR 1435������������������������������������������������������������������������������������������������������ 61.6.8 Croydon LBC v Y [2016] EWCA Civ 398 [2016] 1 WLR 2895�������������������������������������������������������������������������������� 10.1.26, 22.1.15 Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 [2003] 1 WLR 1763������������������� 7.5.1, 9.5.5, 17.3.3, 17.4.5, 17.5.3, 25.2.11, 25.3.1, 25.3.5, 33.4.8, 64.1.8 Curtis v London Rent Assessment Committee [1999] QB 92������������������������������������������������������������������������ 23.2.12, 64.3.14, 64.5.2 Cusack v Harrow LBC [2013] UKSC 40 [2013] 1 WLR 2022�������������������������������������������������������������� 16.6.2, 29.1.6, 39.3.8, 59.9.4 Czarnikow v Roth, Schmidt & Co [1922] 2 KB 478�������������������������������������������������������������������������������������������������������������������� 1.2.9 D, In re [2008] UKHL 33 [2008] 1 WLR 1499�������������������������������������������������������������������������������������������������������������������������� 59.4.5 D, P & K v Lord Chancellor [2020] EWHC 736 (Admin)������������������������������������������������������������������������������������������������������� 18.1.15 D (Minors) (Adoption Reports: Confidentiality), In re [1996] AC 593�������������������������������������������������������������������������� 61.2.7, 61.6.2 D v Commissioner of Police of the Metropolis [2018] UKSC 11 [2019] AC 196����������������������������������� 9.1.7, 9.5.3, 58.5.12, 59.3.3 D v East Berkshire Community Health NHS Trust [2005] UKHL 23 [2005] 2 AC 373 [2003] EWCA Civ 1151 [2004] QB 558����������������������������������������������������������������������������������������������������������������������������������������������������������� 11.1.15, 25.3.5 D v Home Office [2005] EWCA Civ 38 [2006] 1 WLR 1003��������������������������������������������������������������� 7.6.6, 14.3.5, 25.1.3, 27.3.10 Dad v General Dental Council [2000] 1 WLR 1538���������������������������������������������������������������������������������������������������� 58.3.25, 64.2.4 Dalton, Re [2020] NICA 27������������������������������������������������������������������������������������������������������������������������������������������������������ 22.1.28 Daniels v Walker [2000] 1 WLR 1382������������������������������������������������������������������������������������������������������������������������������������� 11.1.13 Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435������������������������������������������������������������������� 25.2.6, 25.2.15 Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 [2019] AC 831������������������������������������������������������������ 25.2.12–13 Darroch v Football Association Premier League [2016] EWCA Civ 1220 [2017] 4 WLR 6���������������������������������������������������� 18.1.2 David Eves v Hambros Bank (Jersey) Ltd [1996] 1 WLR 251�������������������������������������������������������������������������������������������������� 31.3.1 Davidson v Scottish Ministers [2004] UKHL 34 [2004] HRLR 948������������������������������������������������� 63.1.1, 63.3.1–2, 63.3.5, 63.3.7 Davies v Hertfordshire County Council [2018] EWCA Civ 379 [2018] 1 WLR 4609������������������������������������������������������������ 27.3.14 Davies v Presbyterian Church of Wales [1986] 1 WLR 323������������������������������������������������������������������������������������������������������ 16.3.2 Davison v Elmbridge District Council [2019] EWHC 1409 (Admin)������������������������������������������������������������������������������������� 55.1.22 Davy v Spelthorne Borough Council [1984] AC 262��������������������������������������������������������������������������������������� 19.2.28, 27.1.1, 27.3.9 Daymond v Plymouth City Council [1976] AC 609��������������������������������������������������������������������������������������������� 2.6.14, 7.4.9, 27.2.6 DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301������������� 13.6.4, 23.3.3, 31.1.6, 31.2.4, 39.2.2, 48.1.9, 58.4.3, 58.5.6, 59.10.4, 64.1.5 De Four v The State [1999] 1 WLR 1731����������������������������������������������������������������������������������������������������������������������������������� 61.1.8 De Verteuil v Knaggs [1918] AC 557����������������������������������������������������������������������������������������������������������������������������������������� 61.6.2 Deane v Secretary of State for Work and Pensions [2010] EWCA Civ 699 [2011] 1 WLR 743����������������������������������������������� 11.1.8 Deep Vein Thrombosis and Air Travel Group Litigation, Re [2005] UKHL 72 [2006] 1 AC 495��������������������� 6.3.3, 11.1.15, 29.5.4 Delaney v Secretary of State for Transport [2015] 1 WLR 5177��������������������������������������������������������������������������������������������� 27.3.13 Dennis Hutchings [2019] UKSC 26������������������������������������������������������������������������������������������������������ 1.3.14, 7.6.12, 29.4.4, 32.3.2, 32.3.11, 48.1.16, 61.5.6, 64.4.11 Dennis v Ministry of Defence [2003] EWHC 793 (QB) [2003] Env LR 741�������������������������������������������������������������������������� 25.2.15 Dennis v United Kingdom Central Council for Nursing [1993] Med LR 252��������������������������������������������������������������������������� 61.7.9 Denton [2014] EWCA Civ 906 [2014] 1 WLR 3926����������������������������������������������������������������������������������������������������������������� 3.1.14 Department for Children, Schools and Families v Molyneux [2012] EWCA Civ 193������������������������������������������������������������ 27.2.11 Department for Employment and Learning v Duncan [2008] NIIT 525�������������������������������������������������������������������������������������� 6.1.3 Department for Work and Pensions v Information Commissioner [2016] EWCA Civ 758 [2017] 1 WLR 1��������������������������� 13.4.5 Derbyshire CC v Times Newspapers Ltd [1993] AC 554��������������������������������������������������������������������������������������������������������� 35.2.16 Derbyshire County Council v Times Newspapers Ltd [1993] AC 534�������������������������������������������������������������������������������������� 35.3.7

843

TABLE OF CASES Deuss v Attorney General for Bermuda [2009] UKPC 38 [2010] 1 All ER 1059���������������������������������������������������������������������� 4.5.11 Devani v SSHD [2020] EWCA Civ 612 [2020] 1 WLR 2613��������������������������������������������������������������������������������������������������� 59.3.4 De-Winter Heald v Brent LBC [2009] EWCA Civ 930 [2010] 1 WLR 990������������������������������������������������������������������������������ 50.3.4 Diedrichs-Shurland v Talanga-Stiftung [2006] UKPC 58������������������������������������������������������������������������������������������������������������ 4.4.7 Dignity Funerals Ltd v Huntingdonshire District Council [2019] EWHC 2114 (Admin)����������������������������������������� 22.1.24, 22.1.26 Dill v Secretary of State for Communities and Local Government [2020] UKSC 20 [2020] 1 WLR 2206����������������������������������������������������������������������������������������������������������������������������������������� 2.6.22, 7.5.2, 27.3.15 Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759����������������������������������������������������������������������������������������� 63.1.3 Din (Taj) v Wandsworth LBC [1983] 1 AC 657��������������������������������������������������������������������� 26.3.12, 27.2.6, 31.2.7, 39.3.12, 49.4.3 Djaba v West London Mental Health Trust [2017] EWCA Civ 436 [2018] 1 WLR 1333��������������������������������������������������������� 36.1.5 Doherty v Birmingham City Council [2008] UKHL 57 [2009] AC 367���������������������������������� 7.1.16, 9.1.11, 11.1.12, 17.3.7, 32.4.5 Donnelly’s Application [2011] NIQB 94������������������������������������������������������������������������������������������������������������������������������������ 40.2.3 Donoghue v Stevenson [1932] AC 562�������������������������������������������������������������������������������������������������������������������������������������� 45.3.5 Doogan v Greater Glasgow and Clyde Health Board [2014] UKSC 68 [2015] AC 640������������������������������������������������������������ 34.5.9 Dott Services Ltd v AG [2016] UGHCCD 130 (High Court of Uganda)����������������������������������������������������������������������������������� 49.1.4 Douglas v Hello! Ltd [2001] QB 967������������������������������������������������������������������������������������������������������������������� 9.1.3, 20.2.8, 33.1.7 Douglas v Hello! Ltd (No.3) [2005] EWCA Civ 595 [2006] QB 125���������������������������������������������������������������������������������������� 7.6.14 Downderry Construction Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 02 (Admin)���������������������������������������������������������������������������������������������������������������������������������������������������� 54.1.21 Downes [2006] NIQB 77���������������������������������������������������������������������������������������������������������������������������������������������� 10.1.12, 10.4.5 DPP v Haw [2007] EWHC 1931 (Admin) [2008] 1 WLR 379�������������������������������������������������������������������������������������� 50.3.5, 57.3.8 DPP v Hutchinson [1990] 2 AC 783��������������������������������������������������������������������������������������� 1.2.5, 11.1.15, 43.1.2–3, 43.1.5, 46.2.1 DPP v Jones [1999] 2 AC 240������������������������������������������������������������������������������������������������������������������������������������������ 6.3.9, 35.3.7 DPP v Mollison (No.2) [2003] UKPC 6 [2003] 2 AC 411����������������������������������������������������������������������������������������������������������� 7.3.1 DPP v Ziegler [2019] EWHC 71 (Admin) [2020] QB 253������������������������������������������������������������ 7.1.4, 9.3.1, 23.3.9, 58.5.1, 58.5.9 Dr U v MCHK [2016] HKCFI 1053������������������������������������������������������������������������������������������������������������������������������������������� 61.3.3 Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629������������������������ 7.1.11, 19.2.27, 35.1.10, 35.2.11, 63.3.7 D’Souza v DPP [1992] 1 WLR 1073������������������������������������������������������������������������������������������������������������������������������������������ 27.2.8 Duffy, In re [2008] UKHL 4������������������������������������������������������������������������������������������������������������������� 30.1.4, 56.1.1, 57.1.7, 57.4.2 Dulgheriu v Ealing LBC [2018] EWHC 1302 (Admin) [2018] ACD 73��������������������������������������������������������������������� 18.4.13, 21.5.1 Dulgheriu v Ealing LBC [2019] EWCA Civ 1490 [2020] 1 WLR 609���������������������������������������������������������� 32.4.13, 37.1.14, 58.4.1 Dunlop v Woollahra Municipal Council [1982] AC 158������������������������������������������������������������������������������������������������������������ 2.1.34 Dunn v Parole Board [2008] EWCA Civ 374 [2009] 1 WLR 728����������������������������������������������������������������������������������������������� 9.4.8 Dunnett v Railtrack plc [2002] EWCA Civ 303 [2002] 1 WLR 2434�������������������������������������������������������������������������������������� 18.1.13 Duport Steels Ltd v Sirs [1980] 1 WLR 142�������������������������������������������������������������������������������������������������������������������������������� 7.3.1 Durayappah v Fernando [1967] 2 AC 337������������������������������������������������������������������������������������������������������ 31.2.5, 31.3.19, 38.2.23 Durity v Attorney General of Trinidad and Tobago [2008] UKPC 59���������������������������������������������������������������������������� 39.2.6, 61.7.2 Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624 [2014] 1 WLR 4313���������������������� 3.1.14 Dwr Cymru Cyfyngedig v Environment Agency of Wales [2003] EWHC 336 (Admin)���������������������������������������������������������� 17.2.2 Dymoke v Association for Dance Movement Psychotherapy UK Ltd [2019] EWHC 94 (QB)�������������� 7.7.9, 7.8.4, 25.3.3, 27.2.10 E, Re [2006] NICA 37 (Northern Ireland Court of Appeal)������������������������������������������������������������������������������������������������������������ 4.2 E (Children) (Abduction: Custody Appeal), In re [2011] UKSC 27 [2012] 1 AC 144�������������������������������������������������������������� 6.3.17 E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66 [2009] AC 536���������������������������������������� 22.2.16, 22.2.27, 31.2.4, 58.3.15, 59.3.2 E v SSHD [2004] EWCA Civ 49 [2004] QB 1044�������������������������������������������������������������������������� 2.5.2, 5.4.4, 17.2.13, 17.2.19–20, 33.2.20, 33.3.5, 49.3.3, 49.3.7, 61.1.24, 61.2.6 Ealing LBC v Audit Commission [2005] EWHC 195 (Admin)����������������������������������������������������������������������������������������������� 50.4.15 Ealing LBC v Race Relations Board [1972] AC 342����������������������������������������������������������������������������������������������������������������� 2.1.32 Eastenders Cash & Carry Plc v HMRC (No.2) [2012] EWCA Civ 689 [2012] 1 WLR 2912 [2014] UKSC 34 [2015] AC 1101����������������������������������������������������������������������������������������������������������������������������� 2.1.11, 18.1.21 EB (Kosovo) v SSHD [2008] UKHL 41 [2009] AC 1159���������������������������������������������������������������������������������������������������������� 59.6.5 Edenred (UK Group) Ltd v HM Treasury [2015] UKSC 45 [2015] PTSR 1088��������������������������������������������� 3.2.20, 20.1.24, 21.4.9 Edge v Pensions Ombudsman [2000] Ch 602������������������������������������������������������������������������������������������������������������������������������ 7.8.4 Edwards v Bairstow [1956] AC 14��������������������������������������������������������������������� 13.2.1, 14.3.6, 33.2.2, 33.3.5, 49.4.1, 49.4.3, 64.1.5 EE Ltd v Ofcom [2017] EWCA 1873 [2018] 1 WLR 1868������������������������������������������������������������������������������� 2.6.17, 29.1.4, 46.2.1 Egan v Motor Services (Bath) Ltd (Note) [2007] EWCA Civ 1002 [2008] 1 WLR 1589������������������������������������������������������� 22.4.27 Egon Zahnder Ltd v Tillmann [2019] UKSC 32 [2020] AC 154����������������������������������������������������������������������������������������������� 43.1.4 Elsick Development Co Ltd v Aberdeen City and Shire Strategic Development Planning Authority [2017] UKSC 66 [2017] PTSR 1413������������������������������������������������������������������������������������������������������������ 52.2.1, 53.1.10, 57.1.7 EM (Lebanon) v SSHD [2008] UKHL 64 [2009] AC 1198������������������������������������������������������������������������������������������������������� 59.6.5 EN (Serbia) v SSHD [2009] EWCA Civ 630 [2010] QB 633�������������������������������������������������������������� 6.3.15, 10.1.8, 35.3.9, 36.3.23 EnergySolutions EU Ltd v Nuclear Decommissioning Authority [2017] UKSC 34 [2017] 1 WLR 1373������������������������������������������������������������������������������������������������������������������������������������� 8.1.15, 20.1.26, 20.2.15 Enfield BC v SSH [2009] EWHC 743 (Admin)������������������������������������������������������������������������������������������������������������������������� 21.2.2 Engineers & Managers Association v Advisory Conciliation & Arbitration Service [1980] 1 WLR 302�������������������� 27.2.6, 30.1.8, 31.2.4, 39.3.3, 42.2.6, 45.1.5, 45.4.3, 50.1.3 English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409����������������� 64.2.2, 64.2.24, 64.3.22, 64.5.3 Enterprise Inns Plc v Secretary of State for the Environment, Transport and the Regions [2000] 4 PLR 52���������������������������� 28.2.4

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TABLE OF CASES Epoch Properties [2004] JCA 156 (Jersey Court of Appeal)�������������������������������������������������������������������������������������������������������� 4.1.5 Errington v Wilson The Times 2nd June 1995������������������������������������������������������������������������������������������������������������������������������ 4.4.8 E’s Applications [1983] RPC 231����������������������������������������������������������������������������������������������������������������������������������������������� 16.4.1 Eshugbayi Eleko v Government of Nigeria [1931] AC 662����������������������������������������������������� 7.6.6, 16.2.2, 17.2.12, 42.2.12, 49.1.1 Essop v Home Office [2017] UKSC 27 [2017] 1 WLR 1343���������������������������������������������������������������������������������������������������� 55.2.4 Estate of M Kingsley (dec’d) v Secretary of State for Transport [1994] COD 358����������������������������������� 1.2.7, 2.1.9, 18.5.1, 22.3.4 Evans, In re [1994] 1 WLR 1006���������������������������������������������������������������������������������������������������������������������������������� 31.2.5, 61.1.22 Evans v Amicus Healthcare Ltd [2004] EWCA Civ 727 [2005] Fam 1����������������������������������������������������������������������� 22.2.26, 58.5.6 Ewing v DPP [2010] EWCA Civ 70������������������������������������������������������������������������������������������������������������������������������������������� 2.1.11 Executive Council for Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877����������������������� 1.2.3 F (Adult: Court’s Jurisdiction), In re [2001] Fam 38������������������������������������������������������������������������������������������������������ 7.4.10, 12.3.9 F v M [2017] EWHC 949 (Fam) [2018] Fam 1�������������������������������������������������������������������������������������������������������������� 6.3.21, 49.3.1 FA (Iraq) v SSHD [2011] UKSC 22 [2011] 4 All ER 503������������������������������������������������������������������������������������������������������������ 8.1.3 Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255����������������������������������������� 14.2.4, 30.1.4, 45.4.4, 61.2.6, 61.6.6 A (Family Proceedings: Disclosure), In re [2012] UKSC 60 [2013] 2 AC 66������������������������������������������������������������� 61.6.8, 61.6.12 Farley v Child Support Agency [2005] EWCA Civ 869 [2005] 3 FCR 343������������������������������������������������������������������������������ 3.2.12 Farley v Secretary of State for Work and Pensions (No.2) [2006] UKHL 31 [2006] 1 WLR 1817������������������������������������������� 1.3.14 Farrell v Alexander [1977] AC 59�������������������������������������������������������������������������������������������������������������������������������������������� 29.3.10 Feakins v DEFRA [2005] EWCA Civ 1535 [2006] Env LR 1099������������������������������������������������������������������������������������������� 25.2.15 Fearn v Board and Trustees of the Tate Gallery [2020] EWCA Civ 104 [2020] 2 WLR 1081���������������������������������������� 9.1.7, 9.1.17 Fiji Island TIB [2005] FJHC 175���������������������������������������������������������������������������������������������������������������������������������������������� 48.1.16 Financial Secretary v Felix Wong [2003] HKCFA 9 (Hong Kong Court of Final Appeal)���������������������������������������������������������� 4.6.4 Findlay, In re [1985] AC 318��������������������������������������������������������������������������������������������������� 29.2.1, 39.1.8, 40.1.4, 41.1.4, 41.1.12, 50.4.2, 55.1.27, 56.2.1, 61.1.16, 61.5.8 Finucane’s application for judicial review, Re [2019] UKSC 7 [2019] 3 All ER 191������������������� 9.2.9, 9.4.5, 13.5.5, 16.6.3, 24.2.9, 24.3.11, 41.1.1, 41.1.3, 41.1.9, 41.2.3, 41.2.13–14, 41.2.17, 41.2.20, 42.1.1, 42.2.15, 52.2.4, 54.2.7, 59.2.4, 61.1.17 Firmin Gnali v Immigration Appeal Tribunal [1998] Imm AR 331����������������������������������������������������������������������������������������� 55.1.24 Fishermen and Friends of the Sea v Environmental Management Authority [2018] UKPC 24 [2018] PTSR 1979������������������������������������������������������������������������������ 11.1.15, 19.2.20, 23.3.21, 26.1.7, 26.1.11, 26.2.6 Fishermen and Friends of the Sea v Minister of Planning, Housing and the Environment [2017] UKPC 37����������� 24.3.12, 38.2.10 Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377������������������������������������������ 61.1.7, 64.1.9–10, 64.2.2, 64.3.10, 64.5.2–3 Fleming v HMRC [2008] UKHL 2 [2008] 1 WLR 195������������������������������������������������������������������������������������������������� 12.1.2, 46.2.5 Fleming v Lees [1991] COD 50�������������������������������������������������������������������������������������������������������������������������������������������������� 24.4.8 Fletcher v Governor of Whatton Prison [2014] EWHC 3586 (Admin) [2015] 3 All ER 1813������������������������������������������������ 56.1.11 Fletcher v Governor of Whatton Prison [2015] EWHC 3451 (Admin) [2016] ACD 39�������������������������������������������� 24.4.25, 24.4.27 Flintshire County Council v Jayes [2018] EWCA Civ 1089 [2018] ELR 416������������������������������������������������������������� 23.3.13, 31.4.7 Flood v Times Newspapers Ltd [2010] EWCA Civ 804 [2011] 1 WLR 153����������������������������������������������������������������������������� 13.3.2 FMX Food Merchants Co Ltd v HMRC [2020] UKSC 1 [2020] 1 WLR 757����������������������������������������������������� 8.1.7, 29.5.3, 39.2.6 Foley v Cardiff City Council [2020] EWHC 2182 (Admin)������������������������������������������������������������������������������������������������������ 4.1.19 Forbes v Attorney General of Jamaica [2009] UKPC 13��������������������������������������������������������������������������������������������������������� 32.3.17 Foreign and Commonwealth Office v Warsama [2020] EWCA Civ 142 [2020] 3 WLR 351���������������������� 9.1.7, 9.4.4, 9.5.3, 34.4.6 Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334 [2020] 1 WLR 584��������������� 4.1.21, 4.2.1, 4.2.7, 24.3.14, 55.2.6 Fothergill v Monarch Airlines Ltd [1981] AC 251��������������������������������������������������������������������������������������������������������������������� 10.1.4 FP (Iran) v SSHD [2007] EWCA Civ 13 [2007] Imm AR 450������������������������������������������������������������������������������������������������ 61.1.24 FR (Albania) v SSHD [2016] EWCA Civ 605������������������������������������������������������������������������������������������������������������������������� 42.2.15 Francis v Royal Borough of Kensington and Chelsea [2003] EWCA Civ 443 [2003] 2 All ER 1052������������������������ 4.5.10, 23.3.26 Francis v Secretary of State for Work and Pensions [2005] EWCA Civ 1303 [2006] 1 WLR 3202������������������������������������������� 1.2.4 Francisco Javier Jaramillo-Silva v SSHD [1994] Imm AR 352����������������������������������������������������������������������������������������������� 41.2.13 Francovich v Republic (Italy) [1995] ICR 722��������������������������������������������������������������������������������������������������������������������������� 8.1.15 Friends Provident Life and Pensions Ltd v Secretary of State for Transport, Local Government and Regions [2001] EWHC Admin 820 [2002] 1 WLR 1450��������������������������������������������������������������������������������������������������������������������� 64.2.4 Fun World Co Ltd v Municipal Council of Quatre Bornes [2009] UKPC 8������������������������������ 3.2.11, 22.4.6, 24.1.1, 27.1.5, 47.1.1 Furnell v Whangarei High Schools Board [1973] AC 660������������������������������������������������������������� 61.1.11, 61.1.25, 61.2.4, 61.3.7–8 G [2016] 1 WLR 4031������������������������������������������������������������������������������������������������������������������������������������������������������������������ 6.3.6 G (A Child), Re [2008] EWCA Civ 86��������������������������������������������������������������������������������������������������������������������������������������� 3.2.24 G (Adoption: Unmarried Couple), In re [2008] UKHL 38 [2009] AC 173���������������������������������������� 7.8.5, 37.1.19, 58.5.12, 59.8.19 G v E [2010] EWCA Civ 822 [2012] Fam 78�������������������������������������������������������������������������������������������������������������������������� 20.1.15 G v Mental Health Tribunal for Scotland [2013] UKSC 79 [2014] SLT 247����������������������������������������������������������������� 42.1.5, 64.3.5 Gafoor v Attorney General [2012] TTHC 81 (High Court of Trinidad and Tobago)������������������������������������������������������������������� 3.2.7 Gallagher, Re [2019] UKSC 3 [2020] AC 185��������������������������������������������������������������������������������������������������������������������������� 59.1.5 Ganga v Commissioner of Police [2011] UKPC 28������������������������������������������������������������������������������������� 24.3.13, 58.3.24, 62.2.11 Gangar v Espinet [2008] UKPC 48���������������������������������������������������������������������������������������������������������������������������������������������� 4.6.5 Garland v British Rail Engineering Ltd [1983] 2 AC 751���������������������������������������������������������������������������������������������������������� 6.3.14 Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] 1 PLR 85����������������������������������� 50.2.2 Gaughran v Chief Constable of the Northern Ireland Police [2015] UKSC 29 [2016] AC 345������������������������������������������������� 59.6.8 Gebhard [1996] 1 CMLR 603��������������������������������������������������������������������������������������������������������������������������������������������������� 37.1.10

845

TABLE OF CASES General Dental Council v Savery [2011] EWHC 3011 (Admin)��������������������������������������������������������������������������������� 2.1.32, 24.2.15 General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193������������������ 2.1.6, 2.1.8, 2.1.15, 15.2.1, 15.2.3, 15.5.1, 24.4.3, 31.1.6, 57.1.9, 57.1.14, 58.3.5, 58.5.2 General Medical Council v Raychaudhuri [2018] EWCA Civ 2027 [2019] 1 WLR 324�������������������������������������������������������� 29.3.20 General Medical Council v Spackman [1943] AC 627��������������������������������������������������������������������������� 2.6.3, 14.3.1, 15.2.1, 16.5.6, 36.1.8, 61.1.11, 61.1.22, 61.4.1 General Mediterranean Holdings SA v Patel [2000] 1 WLR 272�������������������������������������������������������������������������������������������� 35.2.13 George Wimpey UK Ltd v First Secretary of State [2004] EWHC 2419 (Admin)������������������������������������������������������������������ 55.3.11 George Wimpey UK Ltd v Tewkesbury Borough Council [2008] EWCA Civ 12 [2008] 1 WLR 1649��������������������������������� 23.2.10 Gerber v Wiltshire Council [2016] EWCA Civ 84 [2016] 1 WLR 2593�������������������������������������������������������� 23.3.15, 23.3.21, 26.3.1 GH v SSHD [2005] EWCA Civ 1182��������������������������������������������������������������������������������������������������������������������������������������� 36.3.23 Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557��������������������������������������������� 8.1.4, 9.3.1, 9.3.3–4, 12.2.11, 37.1.12, 55.1.8, 58.5.5, 59.8.6, 59.8.13, 59.8.19 Ghany v Attorney General of Trinidad and Tobago [2015] UKPC 12��������������������������������������������������������������������������������������� 29.1.8 Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA Civ 678 [2010] IRLR 786�������������������������������������� 11.1.6, 27.2.9, 31.1.2, 45.2.5, 46.1.1 Gibbs v Bishop of Manchester [2007] EWHC 480 (Admin)����������������������������������������������������������������������������������������������������� 53.1.5 Gibson v United States of America [2007] UKPC 52 [2007] 1 WLR 2367������������������������������������������������������������������������������� 3.2.17 Gilham v Ministry of Justice [2019] UKSC 44 [2019] 1 WLR 5905�������������������������������������������������������� 7.3.1, 9.3.4, 9.4.6, 37.1.12, 58.4.5, 59.8.5, 59.8.15, 59.8.18 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112������������������������������ 5.2.9, 18.4.4, 32.1.6, 33.1.7, 34.3.4, 38.2.8, 45.3.2, 45.3.8, 45.4.3, 57.4.10 Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 [2006] 1 WLR 781���������������������������������� 16.5.1, 45.4.4, 63.3.3 Gladman [2017] JPL 402������������������������������������������������������������������������������������������������������������������������������������������������������������ 51.2.4 Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669 [2019] PTSR 1714��������������������������� 6.2.8, 16.4.7, 23.3.6, 29.5.10 Gladman Developments Ltd v Secretary of State for Communities and Local Government [2017] EWHC 2448 (Admin) [2018] JPL 345�������������������������������������������������������������������������������������������������������������������������� 4.2.4 Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 127 (Admin) [2019] PTSR 1302����������������������������������������������������������������������������������������������������� 55.1.22, 64.3.14 Glencore Energy UK Ltd v HMRC [2017] EWHC 1587 (Admin)������������������������������������������������������������������������������������������ 21.2.29 Gokool v Permanent Secretary for the Ministry of Health and Quality of Life [2008] UKPC 54������������������������������ 34.5.9, 41.2.14, 54.1.19, 54.2.7, 57.1.9 Golden Arrow Bus Services (Pty) Ltd v City of Cape Town [2013] ZAWCHC 60 (South Africa Western Cape High Court)����������������������������������������������������������������������������������������������������������������������������������������������������������������������� 52.2 Golden Chemicals Ltd, Re [1976] Ch 300�������������������������������������������������������������������������������������������������������������������������������� 27.2.11 Goodwood Recoveries Ltd v Breen [2005] EWCA Civ 414 [2006] 1 WLR 2723������������������������������������������������������������������ 18.2.16 Goose v Wilson Sandford and Co The Times 19th February 1998�������������������������������������������������������������������������������������������� 61.7.2 Gordon v Scottish Criminal Cases Review Commission [2017] UKSC 20 [2017] SLT 365������������������������������� 5.1.1, 39.1.6, 56.2.4 Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 [2004] 1 WLR 1057������������������������ 25.3.5, 31.1.2, 33.4.8 Gouriet v Union of Post Office Workers [1978] AC 435������������������������������������������������������������ 10.1.7, 14.3.9, 24.2.6, 34.4.4, 39.1.7 Gover v Propertycare Ltd [2006] EWCA Civ 286 [2006] 4 All ER 69������������������������������������������������������������������������������������ 22.1.24 Government of the United States of America v Bowe [1990] 1 AC 500���������������������������������������������������������������������������������� 32.3.16 Governor and Company of the Bank of Scotland v A Ltd [2001] EWCA Civ 52 [2001] 1 WLR 751������������������������ 20.1.15, 24.2.6 Gowa v Attorney-General [1985] 1 WLR 1003��������������������������������������������������������������������������������������������������������� 26.1.12, 54.1.22 Grafton Group (UK) plc v Secretary of State for Transport [2016] EWCA Civ 561 [2017] 1 WLR 373������������������������������������������������������������������������������������������������������������������������������� 28.1.9, 44.3.9, 49.4.3, 61.6.6 Graham v Police Service Commission [2011] UKPC 46����������������������������������������������������������������������������������������������� 10.1.4, 10.4.2 Granada UK and Retail Ltd v Pensions Regulator [2019] EWCA Civ 1032 [2019] Pens LR 20���������������������������������������������� 23.3.9 Grand v Gill [2011] EWCA Civ 554 [2011] 1 WLR 2253������������������������������������������������������������������������������������������������������� 18.1.35 Gransden v Secretary of State for the Environment (1987) 54 P & CR 86�������������������������������������������������������������������� 6.2.8, 64.2.17 Grant v Teacher’s Appeal Tribunal [2006] UKPC 59������������������������������������������������������������������������������������������������������� 4.2.9, 36.4.6 Gray v Marlborough College [2006] EWCA Civ 1262 [2006] ELR 516������������������������������������������������������������������������������������� 7.7.9 Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 1 WLR 1756A-B��������������������������������������� 24.2.5 Gregory v Portsmouth City Council [2000] 1 AC 419������������������������������������������������������������������������������������������������������������� 25.2.15 Groupe Eurotunnel SA v Competition Commission [2013] CAT 30����������������������������������������������������������������������������������������� 13.3.2 Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655����������������� 24.3.15, 44.2.5 Grunwick Processing Laboratories Ltd v Advisory Conciliation & Arbitration Service [1978] AC 655����������������������� 7.4.9, 27.2.6, 39.3.10, 64.2.5 Guardian News and Media Ltd, In re [2010] UKSC 1 [2010] 2 AC 697����������������������������������������������������������������������������������� 21.5.1 Guardians of Paku Bay Association Inc v Waikato Regional Council [2011] NZHC 1013 [2012] 1 NZLR 271������������������������ 2.2.2 Gubeladze v Secretary of State for Work and Pensions [2019] UKSC 31 [2019] AC 885�������������������������������������������� 8.1.9, 37.1.10 Guerra v Baptiste [1996] 1 AC 397�������������������������������������������������������������������������������������������������������������������������������������������� 41.2.5 Guiste v Lambeth LBC [2019] EWCA Civ 1758 [2020] HLR 12����������������������������������������������������������������� 4.1.21, 13.5.17, 64.2.21 Gulf Insurance Ltd v Central Bank of Trinidad and Tobago [2005] UKPC 10���������������������������������������������� 2.6.16, 22.2.16, 25.2.15 Gupta v General Medical Council [2001] UKPC 61 [2002] 1 WLR 1691������������������������������������������������������ 64.2.4, 64.2.9, 64.2.12 Gwinnutt v George [2019] EWCA Civ 656 [2019] Ch 471��������������������������������������������������������������������������������������������������������� 9.1.1 H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 [2013] 1 AC 338������������������������������������� 6.3.11, 8.1.8, 37.1.2, 56.3.3, 59.6.6

846

TABLE OF CASES H v Lord Advocate [2012] UKSC 24 [2013] 1 AC 413��������������������������������������������������������������������������������������������������������������� 7.6.7 H v News Group Newspapers Ltd [2011] EWCA Civ 42 [2011] 1 WLR 1645������������������������������������������������������������������������� 7.1.11 HAA (Nigeria) v Minister for Justice and Equality [2018] IEHC 34����������������������������������������������������������������������������������������� 43.1.9 Hafeez v Government of the USA [2020] EWHC 155 (Admin) [2020] 1 WLR 1296�������������������������������������������������������������� 59.3.4 Haile v Immigration Appeal Tribunal [2001] EWCA Civ 663 [2002] Imm AR 170������������������������������������������������� 17.2.19, 61.1.24 Hales v Bolton Leathers Ltd [1951] AC 531���������������������������������������������������������������������������������������������������������������������������� 29.3.22 Halim v Director of Immigration [2010] HKCFI 966���������������������������������������������������������������������������������������������������������������� 31.2.3 Hallam Land Management Ltd v Secretary of State for Communities and Local Government [2018] EWCA Civ 1808 [2019] JPL 63�������������������������������������������������������������������������������������������������������������������������������� 55.1.22 Halliburton Co v Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817 [2018] 1 WLR 3361��������������������������������������������� 27.2.11 Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 [2004] 1 WLR 3002������������������������������������ 10.2.6–7, 18.1.13 Hamilton; Forrest, In re [1981] AC 1038������������������������������������������������������������������������������������������������������������������������������������ 61.5.1 Hamlet v General Municipal Boilermakers & Allied Trades Union [1987] 1 WLR 449��������������������������������������������������������� 61.1.25 Hammersmith & Fulham LBC [1991] 1 AC 521��������������������������������������������������������������������������������������������� 13.5.2, 32.1.10, 45.3.2, 45.4.3, 53.1.3, 61.1.10, 61.3.7 Hamnett v Essex County Council [2017] EWCA Civ 6 [2017] 1 WLR 1155������������������������������������������������������������������������������ 4.5.7 Hampshire County Council v Secretary of State for Environment, Food and Rural Affairs [2020] EWHC 959 (Admin) [2020] 2 P & CR 16������������������������������������������������������������������������������������������������������� 22.2.8, 48.1.9 Hancock v HMRC [2019] UKSC 24 [2019] 1 WLR 3409��������������������������������������������������������������������������������������������������������� 29.1.7 Hand v George [2017] EWHC 533 (Ch) [2017] Ch 449������������������������������������������������������������������������������������������������������������ 46.2.3 Hanlon v Law Society [1981] AC 124�������������������������������������������������������������������������������������������������������������������������������������� 29.3.22 Harding v Wealands [2006] UKHL 32 [2007] 2 AC 1��������������������������������������������������������������������������������������������������������������� 29.4.3 Haringey LBC v Simawi [2018] EWHC 290 (QB)���������������������������������������������������������������������������������������������������������������������� 4.5.8 Harley Development Inc v Commissioner of Inland Revenue [1996] 1 WLR 727������������������������������������������������������ 36.3.18, 54.2.9 Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (1999) 67 Con LR 1��������������������� 25.2.3, 25.2.6 Harverye v SSHD [2018] EWCA Civ 2848������������������������������������������������������������������������������������������������������������������������������� 23.2.6 Hashwani v Jivraj [2011] UKSC 40 [2011] 1 WLR 1872������������������������������������������������������������������������������������������������������������ 8.1.4 Haw v City of Westminster Magistrates Court [2007] EWHC 2960 (Admin) [2008] QB 888�������������������������������������� 29.1.8, 29.4.3 Hayes v Chief Constable of Merseyside [2011] EWCA Civ 911 [2012] 1 WLR 517�������������������������������������������������������������� 27.2.11 Hayes v Willoughby [2013] UKSC 17 [2013] 1 WLR 935������������������������������������������������������������������������������������������������������ 57.1.16 Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1������������������������������������������������������������������������������������������������� 1.2.5, 39.2.15 HCA International Ltd v Competition and Markets Authority [2015] EWCA Civ 492 [2015] 1 WLR 4341������������������������������ 2.6.4 Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34������������������������������������� 56.1.11, 58.3.9, 58.3.24–25 Healthcare at Home Ltd v Common Services Agency [2014] UKSC 49 [2014] PTSR 1081�������������������������������������� 39.2.13, 63.3.6 Heesom v Public Services Ombudsman for Wales [2014] EWHC 1504 (Admin) [2015] PTSR 222��������������������������������������� 15.2.3 Helow v SSHD [2008] UKHL 62 [2008] 1 WLR 2416�������������������������������������������������������������������������� 31.1.2, 63.3.1, 63.3.3, 63.3.6 Hemns v Wheeler [1948] 2 KB 61��������������������������������������������������������������������������������������������������������������������������������������������� 49.4.1 Henderson [2010] NZHC 554�������������������������������������������������������������������������������������������������������������������������������������������������������� 10.4 Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWCA Civ 983 [2002] 4 PLR 108���������������������������� 41.1.13, 54.1.22 Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851 [2018] 4 WLR 71������������������������������������������������ 3.1.19 Higgs v Minister of National Security [2000] 2 AC 228���������������������������������������������������������������������������������������������� 41.1.17, 61.1.7 Highbury Poultry Farm Produce Ltd v CPS [2018] EWHC 3122 (Admin) [2019] PTSR 633�������������������������������������������������� 3.2.12 Highland Regional Council v British Railways Board [1996] SLT 274����������������������������������������������������������������������������������� 20.1.24 Hijazi v Kensington and Chelsea Royal LBC [2003] EWCA Civ 692 [2003] HLR 1113������������������������������������������� 64.4.5, 64.4.15 Hill v Chief Constable of West Yorkshire [1989] AC 53������������������������������������������������������������������������������������������������������������ 13.3.3 HK (An Infant), Re [1967] 2 QB 617����������������������������������������������������������������������������������������������������������������������������� 13.6.1, 30.1.8 HKAOA v DGCA [2009] HKCFI 527������������������������������������������������������������������������������������������������������������������������������������������ 13.4 HKSAR v Lew Mon Hung [2018] HKCA 116��������������������������������������������������������������������������������������������������������������������������� 50.1.7 HM Advocate v R [2002] UKPC D3 [2004] 1 AC 462������������������������������������������������������������������������������������������������ 59.5.1, 59.5.13 HM Attorney-General v Associated Newspapers Ltd [1994] 2 AC 238������������������������������������������������������������������������������������� 6.3.14 HMB Holdings Ltd v Antigua and Barbuda [2007] UKPC 37������������������������������������������������������������� 28.1.12, 34.5.7, 41.2.2, 57.3.5 Hobbs v London Borough of Sutton (1994) 26 HLR 132�������������������������������������������������������������������������������������������������������� 61.1.27 Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295������������������������ 7.5.7, 12.3.3, 13.5.9, 20.1.23, 25.3.4, 38.2.13, 38.2.23, 39.3.4, 42.1.2, 44.1.1, 44.1.5, 44.3.5–6, 46.1.17, 61.4.5, 61.5.1, 61.5.9, 61.6.14 Holborn Studios Ltd v Hackney LBC [2020] EWHC 1509 (Admin)�������������������������������������������������������������� 4.2.10, 29.5.10, 62.3.6 Holgate-Mohammed v Duke [1984] AC 437���������������������������������������������������������������� 39.3.9, 39.3.15, 45.3.5, 45.4.3, 47.1.8, 52.1.1 Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7 [2009] 1 WLR 413���������������������������������������������������� 13.5.17 Holownia v SSHD [2019] EWHC 794 (Admin) [2019] ACD 59���������������������������������������������������������������������������������������������� 25.2.5 Hon Shawn K Richards v Constituency Boundaries Commission (Eastern Caribbean Supreme Court, 29.10.09)������������������� 50.1.7 Hong Kong Broadband Network Ltd v Director of Highways [2011] HKCFI 544������������������������������������������������������������������� 56.1.3 Hopkins [2014] EWCA Civ 470������������������������������������������������������������������������������������������������������������������������������������������������� 61.6.7 Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37 [2017] 1 WLR 1865������������������������������������������������������������������������������������ 6.1.7, 16.4.4, 16.4.7, 29.5.10, 42.1.5 Horada v Secretary of State for Communities and Local Government [2016] EWCA Civ 169 [2016] PTSR 1271��������������������������������������������������������������������������������������������������������������������������������������������� 55.3.11–12, 64.3.22 Hossain v SSHD [2015] EWCA Civ 207��������������������������������������������������������������������������������������������������������������������������������� 41.2.12 Hotak v Southwark LBC [2015] UKSC 30 [2016] AC 811������������������������������������������������������������� 2.6.22, 13.5.17, 55.2.12, 56.1.11

847

TABLE OF CASES Hounslow LBC v Powell [2011] UKSC 8 [2011] 2 AC 186������������������������������������������������������ 9.3.3, 9.3.7, 24.2.15, 27.3.14, 59.6.9 Hourigan v Secretary of State for Work and Pensions [2002] EWCA Civ 1890 [2003] 3 All ER 924���������������������������������������� 1.2.4 Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623������������������������������������������������������������ 32.1.10, 34.3.5 HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776 [2008] Ch 57��������������������������������������������������� 7.6.14 HTF v Ministry of Defence [2018] EWHC 1623 (QB)������������������������������������������������������������������������������������������������������������ 17.1.14 HTV Ltd v Price Commission [1976] ICR 170�������������������������������������������������������������������� 45.4.4, 54.1.6, 54.1.18, 54.1.24, 55.3.15 Huang v SSHD [2007] UKHL 11 [2007] 2 AC 167��������������������������������������������������������������������������������������������������������� 6.2.2, 58.5.2 Huddlestone v Bassetlaw District Council [2019] EWCA Civ 21 [2019] PTSR 1129������������������������������������������������������������ 25.2.16 Hughes v Department of Health and Social Security [1985] AC 776���������������������������������������������������������������������������������������� 40.1.4 Human Fertilisation and Embryology Authority v Amicus Healthcare Ltd [2005] EWHC 1092 (QB)��������������������������������������� 2.2.2 Humphreys v HMRC [2012] UKSC 18 [2012] 1 WLR 1545�������������������������������������������������������������������������������������������������� 59.8.19 Huntley v Attorney-General for Jamaica [1995] 2 AC 1������������������������������������������������������������������������������������ 4.6.4, 61.3.8, 61.6.11 Hussain v General Pharmaceutical Council [2018] EWCA Civ 22�������������������������������������������������������������������������������������������� 15.2.3 Husson v SSHD [2020] EWCA Civ 329�������������������������������������������������������������������������������������������� 25.1.4, 25.2.12, 31.4.8, 59.6.10 Hutton v Criminal Injuries Compensation Authority [2016] EWCA Civ 1305 [2017] ACD 20��������������������� 2.2.1, 21.2.25, 23.1.18, 42.1.5, 45.2.2, 48.1.7 I and H (Contact: Right to Give Evidence), Re [1998] 1 FLR 876�������������������������������������������������������������������������������������������� 61.7.6 IA (Iran) v SSHD [2014] UKSC 6 [2014] 1 WLR 384������������������������������������������������������������������������������������������������������������ 55.3.14 Iceland Foods Ltd v Berry [2018] UKSC 15 [2018] 1 WLR 1277������������������������������������������������������������������������������������������ 29.3.20 Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin)��������������������������������������������������������������������������������������������������� 3.1.6, 5.1.2, 21.4.5, 22.1.26, 26.1.17, 26.2.4, 26.2.10, 55.1.16, 57.3.3, 58.1.7, 58.5.1, 64.4.2 Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586����������������������������������������������������������������������������������������������� 29.1.8 Independent Committee for the Supervision of Standards of Telephone Information Services v Andronikou [2007] EWHC 2307 (Admin)������������������������������������������������������������������������������������������������������������������������������������������������ 19.2.28 Independent Jamaica Council for Human Rights (1998) Ltd v Marshall-Burnett [2005] UKPC 3 [2005] 2 AC 356����������������� 7.2.7 Independent News and Media Ltd v A [2010] EWCA Civ 343 [2010] 1 WLR 2262���������������������������������������������������������������� 58.4.7 Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2004] UKPC 26 [2005] 1 AC 190������������������������������������������������������������������������������������������������������������������������������������������������ 6.1.5, 36.4.5, 45.4.4 Inland Revenue Commissioners v Hinchy [1960] AC 748����������������������������������������������������������������������������������������������� 7.4.6, 29.1.7 Inland Revenue Commissioners v McGuckian [1997] 1 WLR 991������������������������������������������������������������������������������������������� 29.1.4 Innospec Ltd v Walker [2017] UKSC 47 [2017] ICR 1077����������������������������������������������������������������������������� 12.1.2, 29.3.14, 41.1.4 Intercontinental Exchange Inc v CMA [2017] CAT 8���������������������������������������������������������������������������������������������������������������� 18.1.9 Interfact Ltd v Liverpool City Council [2010] EWHC 1604 (Admin) [2010] EWCA Crim 1486 [2011] QB 744������������� 3.2.17–18 Ioannou v Secretary of State for Communities and Local Government [2013] EWHC 3945��������������������������������������������������� 64.4.8 IR (Sri Lanka) v SSHD [2011] EWCA Civ 704 [2012] 1 WLR 232������������������������������������������������������������������������������������������ 9.2.11 Ittihadieh v 5–11 Cheyne Gardens RTM Co Ltd [2017] EWCA Civ 121 [2018] QB 256��������������������������������������������������������� 39.1.5 J (A Child) (Adopted Child: Contact), In re [2010] EWCA Civ 581 [2011] Fam 31��������������������������������������������������������������� 22.4.21 J P Whitter (Water Well Engineers) Ltd v HMRC [2018] UKSC 31 [2018] 1 WLR 3117�������������������������������� 1.2.12, 39.1.5, 39.3.9 J v Welsh Ministers [2018] UKSC 66 [2019] 2 WLR 82������������������������������������������������������������� 7.6.6, 35.1.8, 35.4.3, 35.4.5, 60.1.5 JA (Afghanistan) v SSHD [2014] EWCA Civ 450 [2014] 1 WLR 4291��������������������������������������������� 32.4.15, 45.4.5, 56.3.7, 61.2.3 JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 [2003] 1 AC 419������������������������������������������������������������������������������ 6.3.14, 9.1.15 Jackson v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin) [2020] 1 WLR 1441������������ 12.2.10, 59.8.17–18 Jacpot Ltd v Gambling Regulatory Authority [2018] UKPC 16������������������������������������������������������������������������������������������������ 2.1.11 Jafar Danaie v SSHD [1998] Imm AR 84����������������������������������������������������������������������������������������������������������������������������������� 55.3.8 Jagoo v Bristol City Council [2019] EWCA Civ 19 [2019] PTSR 555������������������������������������������������������������������������������������� 12.2.2 Jahromi v SSHD [1996] Imm AR 20������������������������������������������������������������������������������������������������������������������������������������������ 36.1.7 Jain v Trent Strategic Health Authority [2009] UKHL 4 [2009] AC 853����������������������������������������������������������������������������������� 25.3.4 Jamaicans for Justice v Police Service Commission [2019] UKPC 12�������������� 4.2.7, 34.5.9, 51.1.10, 54.1.1, 55.1.5, 55.1.7, 57.3.9 James D’Avila v Tom Sawyer 22nd March 1996 unrep��������������������������������������������������������������������������������������������������� 7.8.4, 51.2.1 James v Hertsmere Borough Council [2020] EWCA Civ 489��������������������������������������������������������������� 2.5.2, 19.2.28, 49.3.2, 50.3.4 James-Bowen v Commissioner of Police for the Metropolis [2018] UKSC 40 [2018] 1 WLR 4021������������������������������������� 25.2.12 Jane v Westminster Magistrates’ Court [2019] EWHC 394 (Admin) [2019] 4 WLR 95������������������������������� 3.2.23, 19.2.28, 36.3.29 JBS Park Homes v Secretary of State for Communities and Local Government 19 June 2018������������������������������������������������� 31.3.6 JD (Congo) v SSHD [2012] EWCA Civ 327 [2012] 1 WLR 3273������������������������������������������������������������������������������������������ 32.3.19 Jersey Fishermen’s Association Ltd v States of Guernsey [2007] UKPC 30����������������������������������������������������������������������������� 43.1.5 Jet2.com Ltd [2020] EWCA Civ 35 [2020] 2 WLR 1215������������������������������������������������������������������������������������������������������������� 10.4 JH (Palestinian Territories) v Upper Tribunal [2020] EWCA Civ 919��������������������������������������������������������������� 2.2.16, 2.3.2, 18.1.16 Jhagroo v Teaching Service Commission [2002] UKPC 63������������������������������������������������������������������������������������������������������� 34.5.9 JJ Gallagher Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1812 (Admin) [2002] 4 PLR 32�������������������������������������������������������������������������������������������������������������������� 55.3.15 JJ Gallagher v Cherwell District Council [2016] EWCA Civ 1007 [2016] 1 WLR 5126������������������������������������������������������������ 2.6.6 JJ Management LLP v HMRC [2019] EWHC 2006 (Admin) [2020] QB 619������������������������������������������������������������������������ 57.3.12 JML Direct Ltd v Freesat UK Ltd [2010] EWCA Civ 34����������������������������������������������������������������������������������������������������������� 56.3.4 Jobling v Richmond-upon-Thames LBC [2019] EWHC 190 (Admin)���������������������������������������������������������������� 4.2.8, 61.4.2, 62.3.6 John Dee Limited v Customs and Excise Commissioners The Times 17th February 1995������������������������������������������������������� 45.3.5 John v Rees [1970] 1 Ch 345���������������������������������������������������������������������������������������������������������������������������������������������������� 4.4.3–4 Johnatty v Attorney-General [2008] UKPC 55����������������������������������������������������������������������������������������������������������������������������� 4.5.6 Johnson Brothers v SSCLG [2009] EWHC 580 (Admin)���������������������������������������������������������������������������������������������������������� 16.4.5

848

TABLE OF CASES Johnson v Royal Borough of Windsor and Maidenhead [2019] EWHC 160 (Admin)�������������������������������������������������������������� 49.3.6 Johnson v Valks [2000] 1 WLR 1502����������������������������������������������������������������������������������������������������������������������������������������� 3.2.16 Jones v Canal and River Trust [2017] EWCA Civ 135 [2018] QB 305����������������������������������������������������������������������������������� 27.3.14 Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071��������������������������������������������������������������������������������� 31.3.7 Jones v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1267 [2019] 1 WLR 1391��������������������������������� 2.6.11 Jones v Kaney [2011] UKSC 13 [2011] 2 AC 398������������������������������������������������������������������������������������������������������������������� 11.1.15 Jones v Ministry of Interior of Saudi Arabia [2006] UKHL 26 [2007] 1 AC 270������������������������������������������������������������������������ 7.6.4 Jones v Secretary of State for Wales [1995] 2 PLR 26������������������������������������������������������������������������������������������������� 17.4.4, 23.3.27 Jones v Whalley [2006] UKHL 41 [2007] 1 AC 636���������������������������������������������������������������������������������������������������������������� 41.2.21 Jordan’s Application for Judicial Review, Re [2019] UKSC 9 [2019] HRLR 225������������������������������������������ 9.1.5, 22.1.30, 23.3.22 Joseph v Board of Examiners of the Council of Legal Education [1994] ELR 407������������������������������������������������������������������� 36.2.4 JR 26, Re [2009] NIQB 101������������������������������������������������������������������������������������������������������������������������������������������������������� 34.2.4 JR 38, In re [2015] UKSC 42 [2016] AC 1131��������������������������������������������������������������������������������������������������������������� 31.1.1, 59.6.8 JR 65 [2016] NICA 20������������������������������������������������������������������������������������������������������������������������������������������������������ 5.3.3, 13.6.1 JR 80’s Application for Judicial Review, Re [2019] NIQB 1����������������������������������������������������������������������������������������������������� 12.3.4 JR55 v Northern Ireland Commissioner for Complaints [2016] UKSC 22 [2016] 4 All ER 779���������������������������������������������� 57.4.2 JR95 (A Minor), Re [2020] NIQB 8������������������������������������������������������������������������������������������������������������������������������������������� 61.6.8 JS [2015] UKSC 16 [2015] 1 WLR 1449����������������������������������������������������������������������������������������������������������������������������������� 31.1.6 JS Bloor (Wilmslow) v Homes and Communities Agency [2017] UKSC 12 [2018] 1 All ER 817����������������������������������������� 25.2.16 JS v SSHD [2020] EWHC 500 (Admin)������������������������������������������������������������������������������������������������������������������������������������ 32.4.7 JT (Cameroon) v SSHD [2008] EWCA Civ 878 [2009] 1 WLR 1411��������������������������������������������������������������������������������������� 35.2.7 JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313��������������� 9.4.5, 12.2.8, 13.5.2, 14.1.2, 14.1.6, 15.1.3, 16.3.5, 25.1.11, 37.1.15, 58.4.3, 59.8.15, 59.8.17 Julita F Raza v Chief Executive in Council [2006] HKCU 1199����������������������������������������������������������������������������������� 17.4.5, 17.5.3 Julius v Bishop of Oxford (1880) 5 App Cas 214������������������������������������������������������������������������������������������������������� 13.3.4, 39.3.1–2 K, In re [2020] EWCA Civ 190�������������������������������������������������������������������������������������������������������������������������������������������������� 37.1.6 K (A Child) (Secure Accommodation Order: Right to Liberty), In re [2001] Fam 377������������������������������������������������� 9.5.5, 12.2.12 K v Secretary of State for Defence [2017] EWHC 830 (Admin) [2017] ACD 75������������������������������������������������������������������� 22.4.22 K v SSHD [2002] EWCA Civ 775��������������������������������������������������������������������������������������������������������������������������������� 25.3.2, 33.1.8 K2 (Northwest) v HMRC [2018] UKFTT 304��������������������������������������������������������������������������������������������������������������������������� 41.1.4 Kadhim v Housing Benefit Board, London Borough of Brent [2001] QB 955�������������������������������������������������������������������������� 11.1.7 Kalra v Secretary of State for the Environment [1996] 1 PLR 37�������������������������������������������������������������������������������������������� 48.1.16 Kanda v Government of Malaya [1962] AC 322������������������������������������������������������������������������������� 27.2.6, 47.1.13, 61.1.5, 61.1.22, 61.4.1, 61.6.2, 61.6.8, 61.6.10, 64.1.5 Kannan v Newham LBC [2019] EWCA Civ 57 [2019] HLR 363����������������������������������������������������������������� 55.2.11, 64.3.3, 64.3.12 Kanssen v SSEFRA [2005] EWHC 1024 (Admin)�������������������������������������������������������������������������������������������������������������������� 51.1.4 Kapri v Lord Advocate [2013] UKSC 48 [2013] 1 WLR 2324������������������������������������������������������������������������������������������������ 59.5.10 Karagozlu v Metropolitan Police Commissioner [2006] EWCA Civ 1691 [2007] 1 WLR 1881���������������������������������������������� 25.2.6 Kataria v Essex Strategic Health Authority [2004] EWHC 641 (Admin) [2004] 3 All ER 572���������������������������������������������� 58.3.13 Kaur v SSHD [2019] EWCA Civ 1101 [2019] 4 WLR 94��������������������������������������������������������������������� 5.3.4, 11.1.5, 11.1.16, 44.3.2 Kay v Lambeth LBC [2006] UKHL 10 [2006] 2 AC 465������������������������������������������ 9.1.8, 9.2.10, 11.1.10, 27.3.14, 36.3.2, 36.3.21 Kearney v Chief Constable of Hampshire [2019] EWCA Civ 1841 [2019] 4 WLR 144����������������������������������������������� 21.3.4, 23.2.1 Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin)�������������������������������������� 3.1.6, 10.1.23, 16.4.7, 22.1.24, 22.1.28, 49.3.6 Kemper Reinsurance Company v Minister of Finance [2000] 1 AC 1��������������������������������������������������������������������������������������� 23.1.8 Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455������������������������������� 6.1.4–5, 6.3.11, 7.1.2, 7.1.11, 7.1.13, 7.1.16, 9.2.12, 9.3.7, 9.3.9, 12.2.12, 16.3.6, 29.4.6, 31.1.2, 31.4.2, 32.4.3, 32.4.13, 33.1.8, 35.3.7, 35.4.4, 39.2.13, 49.2.6, 57.1.10, 57.1.14, 57.3.1, 57.3.4, 58.3.4, 58.3.19, 59.7.2, 61.1.7 Kenson Contractors (Benington) Ltd v Haringay LBC [2019] EWHC 1230 (Admin)������������������������������������������������ 20.1.24, 34.5.3 Kenyon v Secretary of State for Housing Communities and Local Government [2020] EWCA Civ 302�������� 5.4.7, 13.5.16, 17.2.1, 17.2.8, 23.3.14, 49.4.5 Khaira v Shergill [2014] UKSC 33 [2015] AC 359����������������������������������������������������������������������������� 6.3.2, 27.2.10, 34.4.6, 34.4.10, 34.4.12, 34.4.17, 34.4.19, 34.4.23 Khan v Feltham Magistrates [2017] EWHC 3042 (Admin)������������������������������������������������������������������������������������������������������� 64.3.4 Khan v General Pharmaceutical Council [2016] UKSC 64 [2017] 1 WLR 169���������������������������������������������������������������������� 58.3.20 Khan v Newport Borough Council [1991] COD 157����������������������������������������������������������������������������������������������������������������� 28.2.4 Khan v SSHD [1987] Imm AR 543������������������������������������������������������������������������������������������������������������������������������������������ 61.1.24 Khan v SSHD [2018] EWCA Civ 1684 [2019] Imm AR 54������������������������������������������������������������������������������������������������������ 18.5.4 Khreino v Khreino [2000] 1 FLR 578�������������������������������������������������������������������������������������������������������������������������������������� 23.2.11 Khuja v Times Newspapers Ltd [2017] UKSC 49 [2019] AC 161��������������������������������������������������������������������������������� 7.1.11, 9.1.17 Kim v Minister of Justice [2016] NZHC 1490��������������������������������������������������������������������������������������������������������������������������� 17.2.3 Kim v MOJ [2017] NZHC 2109 [2017] 3 NZLR 823���������������������������������������������������������������������������������������������������������������� 57.1.5 King v East Ayrshire Council The Times 3rd November 1997������������������������������������������������������������������������������������������������ 24.3.10 Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46 [2005] 1 All ER 667���������������������������������������������������������� 6.3.3 Kirvek Management and Consulting Services Ltd v Attorney General of Trinidad and Tobago [2002] UKPC 43 [2002] 1 WLR 2792���������������������������������������������������������������������������������������������������������������������������������� 25.2.10

849

TABLE OF CASES Kizhakudan v SSHD [2012] EWCA Civ 566����������������������������������������������������������������������������������������������������������������������������� 31.3.5 Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349����������������������������������������������������������������������� 1.1.2, 11.1.15, 33.1.7 Knauer v Ministry of Justice [2016] UKSC 9 [2016] AC 908��������������������������������������������������������������������������������������������������� 11.1.8 Knibbs v HMRC [2019] EWCA Civ 1719 [2020] 1 WLR 731���������������������������������������������������������������������� 21.2.1, 27.3.6–7, 36.2.2 Konecny v District Court in Brno-Venkov [2019] UKSC 8 [2019] 1 WLR 1586��������������������������������������������������������������������� 59.6.6 Kotton v First Tier Tribunal (Tax Chamber) [2019] EWHC 1327 (Admin)����������������������������������������������������������������� 22.1.24, 42.1.3 Krupecki v Minister for Justice and Equality [2018] IEHC 538������������������������������������������������������������������������������������������������ 64.5.2 Kruse v Johnson [1898] 2 QB 91�������������������������������������������������������������������������������������������������������������������� 13.5.14, 52.1.2, 55.1.11 Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29 [2002] 2 AC 122����������������������������������� 25.2.6, 33.1.7 Kuwait Airways Corp v Iraq Airways Co (No.6) [2002] UKHL 19 [2002] 2 AC 883������������������������������������������������������������� 34.4.11 KV (Sri Lanka) v SSHD [2018] EWCA Civ 2483����������������������������������������������������������������������������������������� 17.2.19, 17.6.8, 58.3.10 KV (Sri Lanka) v SSHD [2019] UKSC 10 [2019] 1 WLR 1849����������������������������������������������������������������������������������������������� 6.3.17 Kwaku Boateng Kwapong v SSHD [1994] Imm AR 207���������������������������������������������������������������������������������������������������������� 56.1.8 Kwok Cheuk Kin v STH [2016] HKCFI 2������������������������������������������������������������������������������������������������������������������� 38.2.2, 38.2.16 L v Royal Borough of Kensington and Chelsea [1997] ELR 155�������������������������������������������������������������������������������������������� 32.3.15 L v Salford City Council [1998] ELR 28���������������������������������������������������������������������������������������������������������������������������������� 55.1.24 Ladd v Marshall [1954] 1 WLR 1489��������������������������������������������������������������������������������������������������������������������������������������� 17.2.19 Lafarge Redland Aggregates Ltd v Scottish Ministers [2000] 4 PLR 151������������������������������������������������������������������������������� 46.1.13 Lai Tak Shing v Director of Home Affairs [2006] HKCA 378��������������������������������������������������������������������������������������������������� 17.3.2 Laing v The Queen [2013] UKPC 14 [2013] 1 WLR 2670���������������������������������������������������������������������������������������������������������� 4.2.9 Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113���������������������������������������������������������������������������������������� 63.1.1, 63.2.1 Laker Airways Ltd v Department of Trade [1977] QB 643����������������������������������������������������������� 1.2.6, 1.2.12, 6.2.1, 15.1.6, 39.3.4, 40.2.12, 50.1.6, 50.2.3, 52.2.1, 53.1.15, 54.1.24 Lam Yuet Mei [2004] HKCFI 372������������������������������������������������������������������������������������������������������������������������������������������������ 4.3.3 Lambeth LBC v Secretary of State for Communities and Local Government [2019] UKSC 33 [2019] 1 WLR 4317����������������������������������������������������������������������������������������������������������������������������������������������������� 23.3.6, 29.5.1 Lancashire County Council v Taylor [2005] EWCA Civ 284 [2005] 1 WLR 266����������������������������������������������� 4.6.7, 10.4.6, 38.4.6 Land Securities Plc v Fladgate Fielder [2009] EWCA Civ 1402 [2010] Ch 467������������������������������������������������ 1.1.4, 2.1.10, 10.1.9, 31.3.4, 38.2.12–13, 38.2.18 Langley v Liverpool City Council [2005] EWCA Civ 1173 [2006] 1 WLR 375����������������������������������������������� 31.2.5, 58.5.2, 59.1.7 Larder v Warwickshire CC 9 June 2003 unrep��������������������������������������������������������������������������������������������������������������������������� 57.2.2 Larner v Solihull Metropolitan Borough Council [2001] LGR 255������������������������������������������������������������������������������������������� 39.3.1 Law Kiat Min [2009] MYSSHC 53 (High Court of Sabah and Sawarak)��������������������������������������������������������������������������������� 15.1.3 Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302����������������������������������������������������������������������������������������� 27.2.10 Lawal v Northern Spirit Ltd [2003] UKHL 35 [2004] 1 All ER 187��������������������������������������������������������������������� 63.3.1–2, 63.3.6–7 Lawrence v AG [2007] UKPC 18 [2007] 1 WLR 1474��������������������������������������������������������������������������������������������������������������� 4.3.3 Lawrence v Financial Services Commission [2009] UKPC 49�������������������������������������������������������������������������������������� 61.2.1, 61.5.6 Lee v Ashers Baking Co Ltd [2018] UKSC 49 [2020] AC 413������������������������������������������������������������������������������������ 28.1.19, 48.2.7 Leech v Deputy Governor of Parkhurst Prison [1988] AC 533��������������������������������������������������������� 7.5.7, 14.3.1, 14.3.3, 14.3.9–10, 17.3.7, 33.2.3, 34.2.4, 34.2.6, 34.2.11, 34.3.2, 36.3.3, 36.3.20, 45.2.2 Lejonvarn v Burgess [2020] EWCA Civ 114��������������������������������������������������������������������������������������������������������������������������� 23.3.32 Lenehen v SSHD [2002] EWHC 1599 (Admin)������������������������������������������������������������������������������������������������������������������������ 3.2.14 Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43 [2006] 1 AC 221��������������������������������� 6.3.4, 47.1.3 Lever Finance Ltd v Westminster (City) LBC [1971] 1 QB 222������������������������������������������������������������������������������������������������ 54.2.9 Lewis v Attorney-General of Jamaica [2001] 2 AC 50����������������������������������������������������������������� 6.3.18, 34.4.15–16, 61.5.6, 61.6.12 Lewisham LBC v Lewisham Juvenile Court Justices [1980] AC 273�������������������������������������������������������������������������������������� 24.4.10 Lindsay v Commissioners of Customs and Excise [2002] EWCA Civ 267 [2002] 1 WLR 1766������������������������������������������� 50.4.14 Linky Chance Ltd v Commissioner for Television and Entertainment Licensing [2006] HKCFI 248�������������������������������������� 50.4.6 Lisle-Mainwaring v Associated Newspapers Ltd [2018] EWCA Civ 1470 [2018] 1 WLR 4766�������������������������������������������� 22.4.31 Lister Assets v CEC [2013] HKCA 209������������������������������������������������������������������������������������������������������������������������������������� 64.1.7 Littlewood v Powys County Council [2015] EWHC 2125 (Admin) [2016] PTSR 45�������������� 4.6.2, 36.4.9, 56.1.11, 61.3.7, 61.7.5 Littlewoods Ltd v HMRC [2017] UKSC 70 [2018] AC 869�������������������������������������������������������������������������������� 8.1.3, 29.1.2, 29.1.5 Liversidge v Sir John Anderson [1942] AC 206������������������������������������������������������������������������������������������������������������������������� 49.1.1 LL v Lord Chancellor [2017] EWCA Civ 237 [2017] 4 WLR 162���������������������������������������������������������������������������������� 9.5.6, 44.2.5 Lloyd v McMahon [1987] AC 625��������������������������������������������������������������������������������������������������������������������� 15.2.3, 61.2.1, 61.3.8 LO (Jordan) v SSHD [2011] EWCA Civ 164������������������������������������������������������������������������������������������������������������������������������� 2.2.2 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451������������������������������������������������������������� 7.7.3, 17.3.13, 17.4.12, 31.2.3, 31.3.7, 63.1.1, 63.1.4, 63.2.2, 63.3.8 Local Government Board v Arlidge [1915] AC 120��������������������������������������������������������������������������� 16.5.6, 30.1.2–3, 42.2.1, 61.5.9 London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182�������������������������������������� 26.2.18, 31.4.1, 39.3.10, 44.3.6, 61.4.2, 61.4.4 London Borough of Islington v Camp (1999) [2004] LGR 58���������������������������������������������������������� 2.1.31–32, 4.5.6, 5.1.4, 17.3.12, 22.2.28, 24.2.13, 27.2.6, 49.1.3 London Borough of Tower Hamlets v Sherwood [2002] EWCA Civ 229����������������������������������������������������������������� 40.2.12, 54.1.21 London Regional Transport v Mayor of London 24th August 2001 unrep�������������������������������������������������������������������������������� 37.1.2 Lone v Secretary of State for Education [2019] EWHC 531 (Admin) [2019] ELR 222������������������������������������������������������������ 63.3.3 Lonrho Plc v Tebbit [1992] 4 All ER 280����������������������������������������������������������������������������������������������������������������������������������� 27.1.5 Lord Advocate v Dean [2017] UKSC 44 [2017] 1 WLR 2721�������������������������������������������������������������������������������������� 9.1.18, 59.3.4

850

TABLE OF CASES Loughlin, In re [2017] UKSC 63 [2017] 1 WLR 3963����������������������������������������������������������� 32.3.2, 39.3.7, 39.3.13, 56.2.9, 64.4.11 Love v United States of America [2018] EWHC 172 (Admin)������������������������������������������������������������������������������������������������ 23.3.10 Lubrizol Ltd v Tyndallwoods Solicitors 8th April 1998 unrep������������������������������������������������������������������������������������������������� 18.2.17 Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445���������������������������������������������������������������������������� 4.1.21, 55.2.10 M & H (Minors) (Local Authority: Parental Rights), Re [1990] 1 AC 686�������������������������������������������������������������������������������� 6.3.15 M (Petition to European Commission of Human Rights), Re [1997] 1 FLR 755���������������������������������������������������������������������� 6.3.21 M v Home Office [1992] 1 QB 270 (CA)����������������������������������������������������������������������������������������������������������������������������������� 10.1.4 M v Home Office [1994] 1 AC 377��������������������������������������������������������������������������������������������� 1.2.14, 2.1.14–15, 10.1.16, 10.4.12, 20.1.4, 20.1.13–14, 25.2.8, 32.1.9, 33.2.14 M v Scottish Ministers [2012] UKSC 58 [2012] 1 WLR 3386������������������������������������ 5.2.12, 12.3.13, 39.3.2, 53.1.2, 53.1.5, 53.1.7 M v Secretary of State for Justice [2018] UKSC 60 [2019] AC 712���������������������������������������������������������������������������������������� 35.2.12 M v Secretary of State for Work and Pensions [2006] UKHL 11 [2006] 2 AC 91����������������������������������������� 9.2.10, 12.2.12, 59.8.19 M v SSHD [2003] EWCA Civ 146 [2003] 1 WLR 1980��������������������������������������������������������������������������������������������������������� 55.3.14 MA (Pakistan) v SSHD [2019] EWCA Civ 1252����������������������������������������������������������������������������������������������������������� 41.2.9, 55.3.8 MA (Somalia) v SSHD [2010] UKSC 49 [2011] 2 All ER 65��������������������������������������������������������������������������������������������������� 42.1.5 Mabon v Mabon [2005] EWCA Civ 634 [2005] Fam 366����������������������������������������������������������������������������������������������������������� 6.3.8 McC (A Minor), In re [1985] AC 528���������������������������������������������������������������������������������������������� 2.6.16, 27.2.11, 30.1.10, 32.2.13, 47.1.1, 47.1.3, 47.1.12, 47.1.16, 47.1.22 McCann v State Hospitals Board for Scotland [2017] UKSC 31 [2017] 1 WLR 1455������������������������� 37.1.6, 45.4.6, 59.1.7, 59.6.7 McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277������������������������������������������������������������������������ 7.6.17, 9.1.1 McCaughey, In re [2011] UKSC 20 [2012] 1 AC 725�������������������������������������������������������������������������������� 9.1.7, 9.1.15, 9.2.4, 29.5.5 McClaren v Home Office [1990] ICR 824������������������������������������������������������������������������������������������������������������������� 27.1.5, 34.5.10 McClean, Re [2005] UKHL 46 [2005] UKHRR 826��������������������������������������������������������������������������������������������������������������� 61.6.12 McDaid, In re [2016] NICA 5����������������������������������������������������������������������������������������������������������������������������������������������������� 36.3.3 McDonald v McDonald [2016] UKSC 28 [2017] AC 273������������������������������������������������������������������������ 1.1.4, 9.1.17, 9.2.15, 9.3.5, 9.4.5, 22.2.26, 27.3.14, 58.4.7, 59.6.9 MacDonald v Ministry of Defence [2001] HRLR 77����������������������������������������������������������������������������������������������������� 6.3.14, 9.1.16 McDonnell, In re [2007] NIQB 125��������������������������������������������������������������������������������������������������������������������������������������������� 4.4.2 McDonnell v Congregation of Christian Brothers Trustees [2003] UKHL 63 [2004] 1 AC 1101����������������������������� 29.4.10, 29.4.13 McEldowney v Forde [1971] AC 632�������������������������������������������������������������������������������������� 1.2.6, 7.6.18, 13.5.14, 42.1.2, 46.1.12, 46.2.1, 52.1.2, 53.1.10, 55.1.6, 57.4.7 McFarland, In re [2004] UKHL 17 [2004] 1 WLR 1289��������������������������������������������� 6.3.7, 10.1.16, 13.1.4, 16.4.3, 29.3.17, 32.1.7 McGrath v Camden LBC [2020] EWHC 369 (Admin)�������������������������������������������������������������������������������������������������������������� 61.4.3 McGuinness, In re [2020] UKSC 6 [2020] 2 WLR 510������������������������������������������������������������������������������������� 1.1.1, 22.2.10, 23.2.2 Macharia v SSHD [2000] INLR 156���������������������������������������������������������������������������������������������������������������������������������������� 36.3.25 McInnes v Onslow Fane [1978] 1 WLR 1520�������������������������������������������������������������������������������������������������������������������������� 61.1.12 McInnes v Onslow-Fane [1978] 1 WLR 1520��������������������������������������������������������������������������������������������������������������������������� 30.1.3 McKerr, In re [2004] UKHL 12 [2004] 1 WLR 807���������������������������������������������������������������������� 6.3.18, 7.1.17, 9.1.1, 9.1.7, 9.1.23 McLaughlin, In re [2018] UKSC 48 [2018] 1 WLR 4250 [2018] 1 WLR 4250������������������������������� 6.3.11, 9.2.14, 12.2.10, 58.5.12, 59.8.5–6, 59.8.10, 59.8.12, 59.8.17 McLaughlin, Re [2018] UKSC 48 [2018] 1 WLR 4250����������������������������������������������������� 6.3.11, 9.2.14, 12.2.10, 58.5.10, 58.5.12, 59.8.5–6, 59.8.10, 59.8.12, 59.8.17 McLaughlin v Governor of the Cayman Islands [2007] UKPC 50 [2007] 1 WLR 2839����������������������������������� 2.6.18, 34.5.9, 44.1.1 McLean v Buchanan [2001] UKPC D3 [2001] 1 WLR 2425�������������������������������������������������������������������������������������� 59.5.4, 59.5.12 McMonagle v Westminster City Council [1990] 2 AC 716������������������������������������������������������������������������������������������������������ 29.3.12 Macris v Financial Conduct Authority [2017] UKSC 19 [2017] 1 WLR 1095�������������������������������������������������������������������������� 16.4.1 Madan v SSHD [2007] EWCA Civ 770������������������������������������������������������������������������������������������������������������������������������������� 10.1.9 Magill v Porter [2001] UKHL 67 [2002] 2 AC 357���������������������������������������������������������������� 9.1.15, 17.3.13, 39.1.5, 52.2.3, 59.5.3, 59.5.9–10, 59.5.13, 63.3.1, 63.3.3, 63.3.5 Magmatic Ltd v PMS International Group plc [2016] UKSC 12 [2016] Bus LR 371��������������������������������������������������������������� 42.1.5 Mahad v Entry Clearance Officer [2009] UKSC 16 [2010] 1 WLR 48��������������������������������������������������������������� 6.2.5, 9.1.12, 29.5.6 Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983����������������������� 3.2.10, 19.1.9, 21.4.1, 21.4.5, 26.1.16–17, 26.2.5, 26.2.8, 26.3.3, 26.3.5, 26.3.7–8, 26.3.15–17 Maharaj v Petroleum Company of Trinidad and Tobago Ltd [2019] UKPC 21������������������������������������������������������������� 16.1.3, 21.2.8 Mahon v Air New Zealand Ltd [1984] AC 808�������������������������������������������������� 1.1.2, 7.7.8, 33.1.5, 49.4.3, 61.1.10, 61.5.9, 61.6.11 Majewski v SSHD [2019] EWHC 473 (Admin) [2019] ACD 73���������������������������������������������������������������������������������������������� 25.2.7 Makhlouf v SSHD [2016] UKSC 59 [2017] 3 All ER 1���������������������������������������������������������������������������������������������� 51.1.11, 58.4.3 Mallinson v Secretary of State for Social Security [1994] 1 WLR 630������������������������������������������������������������������������������������� 16.3.3 Malloch v Aberdeen Corporation [1971] 1 WLR 1578���������������������������������������������� 24.4.22, 29.1.5, 36.4.4, 61.1.22, 61.3.5, 61.6.2 Manchester City Council v Pinnock (No.1) [2010] UKSC 45 [2011] 2 AC 104���������������������������������������������� 7.1.16, 9.2.3–4, 9.2.7, 11.1.12, 22.2.26, 59.6.9 Manchester City Council v Pinnock (No.2) [2011] UKSC 6 [2011] 2 AC 104�������������������������������������������������������������������������� 24.4.4 Mandalia v SSHD [2015] UKSC 59 [2015] 1 WLR 4546����������������������������������������������������������������������������������� 6.2.6, 16.4.5, 41.1.3 Manning v Ramjohn [2011] UKPC 20������������������������������������������������������������������������������������������������ 4.4.3, 34.1.4, 34.5.10, 34.5.12, 41.1.6, 61.1.12, 61.2.2, 61.5.6 Manning v Sharma [2009] UKPC 37���������������������������������������������������������������������������������������������������������������������������� 42.2.6, 46.1.13 Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 [2019] PTSR 1452��������������������������� 13.5.15, 65.1.11 Mansell v Tonbridge District Council [2017] EWCA Civ 1314 [2019] PTSR 1452����������������������������������������������������������������� 13.5.3

851

TABLE OF CASES Manzeke v SSHD [1997] Imm AR 524������������������������������������������������������������������������������������������������������������������������������������ 55.1.24 Marcic v Thames Water Utilities Ltd [2002] QB 929 (High Court) [2003] UKHL 66 [2004] 2 AC 42����������������������������������������������������������������������������������������������������������������������������������� 9.4.4, 36.1.11, 58.5.5, 58.5.7, 58.5.9, 59.6.10, 59.9.4 Marleasing [1992] 1 CMLR 305��������������������������������������������������������������������������������������������������������������������������������������������������� 8.1.4 Mass Energy Ltd v Birmingham City Council [1994] Env LR 298��������������������������������������������������������������� 2.1.28, 20.1.26, 21.2.27 Mastercard UK MFL v Office of Fair Trading [2006] CAT 14�������������������������������������������������������������������������������������������������� 41.1.4 Matadeen v Pointu [1999] 1 AC 98�������������������������������������������������������������������������������������������������������������������������������������������� 55.1.8 Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 [2015] 1 WLR 3250������������������������������������ 6.3.2, 59.8.18 Matthews v Ministry of Defence [2002] EWHC 13 (QB) [2003] UKHL 4 [2003] 1 AC 1163������������������������������������������������� 12.2.2 Mauritius Shipping Corp Ltd v Employment Relations Tribunal [2019] UKPC 42������������������������������������������������ 23.3.21, 26.2.5–6 Maynard v Osmond [1977] QB 240��������������������������������������������������������������������������������������������������������������������������������������������� 5.3.1 Mayor etc of London Borough of Wandsworth v National Association of Schoolmasters/Union of Women Teachers [1994] ELR 170�������������������������������������������������������������������������������������������������������������������������������������� 26.1.9 Mayor of London v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1176 (Admin)������������������������������������������������������������������������������������������������������������������ 4.1.7, 4.2.3, 4.2.5, 22.1.37 Mazhar v Lord Chancellor [2019] EWCA Civ 1558 [2020] 2 WLR 541���������������������������������������������������������� 9.5.6, 29.3.10, 34.4.1 MCX Dunlin (UK) Ltd v HMRC [2020] EWHC 11 (Ch)���������������������������������������������������������������������������������������������������������� 27.3.6 MD (Afghanistan) v SSHD [2012] EWCA Civ 194��������������������������������������������������������������������������������������� 3.2.17, 20.1.11, 21.1.15 Medical Justice [2010] EWHC 1425 (Admin)������������������������������������������������������������������������������������������������������������������������� 24.4.16 Medicaments and Related Classes of Goods (No.2), In re [2001] 1 WLR 700������������������������ 11.1.15, 16.5.4, 45.4.4, 63.2.1, 63.3.8 Medicaments and Related Classes of Goods (No.4), In re [2001] EWCA Civ 1217 [2002] 1 WLR 269������������������������ 9.5.5, 38.4.5 Meerabux v Attorney General of Belize [2005] UKPC 12 [2005] 2 AC 513����������������������������������������������������� 63.1.2, 63.3.3, 63.3.6 Mendoza v Ghaidan [2002] EWCA Civ 1533 [2003] Ch 380 (CA) [2004] UKHL 30 [2004] 2 AC 557�������������������������������� 11.1.10 MEO (Nigeria) [2018] IEHC 782����������������������������������������������������������������������������������������������������������������������������������������������� 64.3.4 Mercury Communications Ltd v Director General of Telecommunications [1996] 1 WLR 48����������������������������������������������� 27.3.11 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521������������������������� 1.1.2, 2.1.6, 13.1.3, 13.3.4, 25.3.1, 32.1.8, 34.2.7, 34.5.11, 45.3.5 Metropolitan Borough of Stepney v John Walker & Sons Ltd [1934] AC 365�������������������������������������������������������������������������� 42.2.1 Meyrick Estate Management Ltd v Secretary of State for Environment, Food and Rural Affairs [2007] EWCA Civ 53 [2007] Env LR 558�������������������������������������������������������������������������������������������������������������������������������� 4.3.3 MH v Special Educational Needs and Disability Tribunal [2004] EWCA Civ 770 [2004] LGR 844������������������������������������� 23.2.12 Michael v Chief Constable of South Wales Police [2015] UKSC 2 [2015] AC 1732�������������������������������������������������������������� 25.2.14 Milebush Properties Ltd v Tameside Metropolitan Borough Council [2011] EWCA Civ 270 [2011] PTSR 1654������� 24.2.3, 27.3.6 Milk Marketing Board of England and Wales v Tom Parker Farms Ltd [1999] EuLR 154��������������������������������������������������������� 8.1.5 Millar v Procurator Fiscal [2001] UKPC D4 [2002] 1 WLR 1615������������������������������������������������������������������������������������������ 59.5.15 Ming v COE [2012] BMSC 40 (Bermuda Supreme Court)����������������������������������������������������������������������������������������������������� 26.3.11 Minister of Energy and Energy Affairs v Maharaj [2020] UKPC 13��������������������������������������������������������������������������� 41.1.14, 46.1.5 Minister of Home Affairs v Barbosa [2019] UKPC 41 [2020] 1 WLR 169��������������������������������������������������������������������� 7.1.5, 7.6.20 Ministry of Defence & Support for Armed Forces of the Islamic Republic of Iran v International Military Services Ltd [2020] EWCA Civ 145 [2020] 1 WLR 1726����������������������������������������������������������������������������������������������������� 29.5.3 Mirvahedy v Henley [2003] UKHL 16 [2003] 2 AC 491����������������������������������������������������������������������������������������������������������� 29.4.1 Mitchell [2013] EWCA Civ 1537 [2014] 1 WLR 795��������������������������������������������������������������������������������������������������������������� 3.1.14 Mitchell v Department of Transport [2006] EWCA Civ 1089 [2006] 1 WLR 3356���������������������������������������������������������������� 25.2.10 Mitchell v Georges [2014] UKPC 43����������������������������������������������������������������������������������������������������������������������������������������� 63.3.2 Mitchell v Glasgow City Council [2009] UKHL 11 [2009] AC 874������������������������������������������������������������������������������������������ 59.2.3 Mitsui Sumitomo Insurance Co (Europe) Ltd v Mayor’s Office for Policing and Crime [2016] UKSC 18 [2016] AC 1488����������������������������������������������������������������������������������������������������������������������������������������������������������� 7.4.5, 25.2.16 MO (Nigeria) v SSHD [2009] UKHL 25 [2009] 1 WLR 1230������������������������������������������������ 6.2.5, 40.1.4, 50.4.2, 54.1.13, 54.1.16 Modahl v British Athletic Federation Ltd 28th July 1997 unrep. (CA)�������������������������������������������������������������������������� 31.3.7, 34.1.6 Modahl v British Athletic Federation (No.2) [2001] EWCA Civ 1447 [2002] 1 WLR 1192������������� 7.7.9, 36.4.3, 61.1.25, 63.3.7–8 Mohammed Jafar v SSHD [1994] Imm AR 497������������������������������������������������������������������������������������������������������������������������� 57.2.2 Mohammed Kerrouche v SSHD [1997] Imm AR 610�������������������������������������������������������������������������������������������������������������� 32.4.15 Mohammed v Home Office [2011] EWCA Civ 351 [2011] 1 WLR 2862����������������������������������������������������������������������������� 25.3.5–6 Mohammed v Ministry of Defence [2017] UKSC 1 [2017] AC 649��������������������������������������������� 6.3.17, 34.3.3, 34.4.6, 34.4.12–16 Mohamoud v Birmingham City Council [2014] EWCA Civ 227 [2015] PTSR 17��������������������������������������������������������������������� 2.5.2 Mohit v DPP of Mauritius [2006] UKPC 20 [2006] 1 WLR 3343��������������������������������������������������������� 32.3.3, 34.2.6, 34.3.3, 34.4.4 Molyneaux, Ex p [1986] 1 WLR 331��������������������������������������������������������������������������������������������������������������������������������������� 34.4.16 Montgomery v Her Majesty’s Advocate and the Advocate General for Scotland [2003] 1 AC 641���������������������������� 58.5.15, 59.5.4 Moohan v Lord Advocate [2014] UKSC 67 [2015] AC 901����������������������������������������������������������������� 6.3.11, 6.3.16, 7.1.17, 7.6.21, 9.2.12–13, 12.3.6, 59.10.7 Moore v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin)������������������������������ 39.2.6, 55.2.4, 55.2.11, 59.5.13 Mooreland [2014] NIQB 130 (Northern Ireland High Court)��������������������������������������������������������������������������������������������������������� 4.2 Moore’s (Wallisdown) Ltd v Pensions Ombudsman [2002] 1 WLR 1649������������������������������������������������������������������������������� 18.1.19 Moran v DPP [2002] EWHC 89 (Admin)�������������������������������������������������������������������������������������������������������������������������������� 64.2.12 Mordue v Secretary of State for Communities and Local Government [2015] EWCA Civ 1243 [2016] 1 WLR 2682���������� 64.2.20 Morris v Newham LBC [2002] EWHC 1262 (Admin)������������������������������������������������������������������������������������������������������������ 25.1.15 Moses v Macferlan (1760) 2 Burr 1005���������������������������������������������������������������������������������������������������������������������������������������� 7.7.8

852

TABLE OF CASES Mossell (Jamaica) Ltd v Office of Utilities Regulations [2010] UKPC 1������������������������������������������������������������������������ 5.2.7, 44.3.6 Mott v Environment Agency [2019] EWHC 1892 (Admin)�������������������������������������������������������������������������������������������������������� 9.5.5 Moyna v Secretary of State for Work and Pensions [2003] UKHL 44 [2003] 1 WLR 1929����������������������������������������������������� 48.1.7 MR (Albania) v Minister for Justice and Equality [2020] IEHC 402��������������������������������������������������������������������������������������� 26.2.19 MRH Solicitors Ltd v Manchester County Court [2015] EWHC 1795 (Admin) [2015] ACD 147����������������� 36.1.2, 36.3.18, 61.6.6 MS (Pakistan) v SSHD [2020] UKSC 9 [2020] 1 WLR 1373���������������������������������������������������������������� 4.5.11, 6.3.6, 9.1.17, 38.4.7, 38.4.9, 55.3.14, 58.5.2, 59.10.1 MS (Uganda) v SSHD [2016] UKSC 33 [2016] 1 WLR 2615��������������������������������������������������������������������������������������������������� 29.1.2 Mucelli [2012] EWHC 95 (Admin)�������������������������������������������������������������������������������������������������������������������������������������������� 17.6.8 Municipal Council of Sydney v Campbell [1925] AC 339��������������������������������������������������������������������������������������������������������� 52.2.4 Murphy v Brentwood District Council [1991] 1 AC 398����������������������������������������������������������������������������������������������������������� 7.4.10 Murphy v Electoral Commission [2019] EWHC 2762 (QB) [2020] 1 WLR 480�������������������������������������������������������� 25.2.11, 27.3.6 Murphy v Ireland [2014] IESC 19 (Supreme Court of Ireland)������������������������������������������������������������������������������������������������� 32.1.7 Murtagh [2017] IEHC 384������������������������������������������������������������������������������������������������������������������������������������������������������������� 10.4 Muuse v SSHD [2010] EWCA Civ 453������������������������������������������������������������������������������������������������������������������������������������� 25.2.6 MW (USA) v Entry Clearance Officer [2016] EWCA Civ 1273 [2017] 1 WLR 1556�������������������������������������������������������������� 29.5.6 MZA (Pakistan) v MJE [2018] IEHC 784�������������������������������������������������������������������������������������������������������������������������������� 64.3.12 N v Royal Bank of Scotland Plc [2017] EWCA Civ 253 [2017] 1 WLR 3938�������������������������������������� 7.7.4, 20.1.15, 20.2.4, 61.3.2 N v SSHD [2005] UKHL 31 [2005] 2 AC 296��������������������������������������������������������������������������������������������������� 9.2.4, 29.5.5, 55.1.18 NA (Pakistan) v SSHD [2016] EWCA Civ 662 [2017] 1 WLR 207������������������������������������������������������������������������������������������ 29.1.8 Nahar v Social Security Commissioners [2001] EWHC Admin 1049 [2002] 2 FCR 442 [2002] EWCA Civ 859�������������������������������������������������������������������������������������������������������������������������������������������� 54.2.10, 55.1.17 Naidike v Attorney-General of Trinidad and Tobago [2004] UKPC 49 [2005] 1 AC 538����������������� 7.6.6, 35.2.12, 61.1.12, 61.1.21 Nakkuda Ali v Jayaratne [1951] AC 66������������������������������������������������������������������������������������������������������������ 34.3.2, 39.3.15, 52.1.1 Napier v Scottish Ministers [2002] UKHRR 308��������������������������������������������������������������������������������������������������������������������� 20.1.24 Napier v Scottish Ministers [2004] UKHRR 881����������������������������������������������������������������������������������������������������������������������� 59.3.5 Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading [2002] EWCA Civ 796 [2002] 4 All ER 376������������ 13.4.5 Naraynsingh v Commissioner of Police [2004] UKPC 20������������������������������������������������������������������������������������������� 51.1.10, 61.7.5 National Assembly for Wales v Cardiff City and County Council [2005] EWHC 974 (QB) [2006] LGR 540������������������������� 2.1.30 National Assistance Board v Wilkinson [1952] 2 QB 648��������������������������������������������������������������������������������������������������������� 29.3.7 National Commercial Bank Ltd v Olint Corporation Ltd [2009] UKPC 16 [2009] 1 WLR 1405��������������������� 20.1.8, 20.2.4, 61.5.1 National Crime Agency, In re [2020] EWHC 268 (Admin) [2020] 1 WLR 3224���������������������������������������������������������������������� 3.2.12 National Crime Agency v A [2018] EWHC 2603 (Admin) [2018] ACD 132���������������������������������������������������������������������������� 21.5.1 National Crime Agency v Simkus [2016] EWHC 255 (Admin) [2016] 1 WLR 3481��������������������������������������������������������������� 39.3.8 National Transport Cooperative Society Ltd v Attorney General of Jamaica [2009] UKPC 48������������������������������������������������ 27.2.9 Nazeer v Solicitors Regulation Authority [2019] EWHC 37 (Admin)��������������������������������������������������������������������������������������� 10.1.9 Neill [2004] IESC 7 [2004] 1 IR 298��������������������������������������������������������������������������������������������������������������������������������������������� 10.4 Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1220����������������������������������� 4.5.11, 14.3.9, 31.2.3, 47.1.1, 47.1.3, 61.1.7–8 Neumans LLP v Law Society [2018] EWCA Civ 325��������������������������������������������������������������������������������������������������� 36.4.2, 61.3.7 New Saints FC Ltd v Football Association of Wales Ltd [2020] EWHC 1838 (Ch)��������������������������� 15.1.3, 16.5.6, 27.2.10, 46.1.5 New Zealand Maori Council v Attorney-General of New Zealand [1994] 1 AC 466 (PC)����������������������������������������� 18.4.2, 34.4.16 Newbury District Council v Secretary of State for the Environment [1981] AC 578������������������������ 5.3.2, 13.5.16, 26.2.20, 39.3.13 Ngunguru [2011] NZHC 470 [2011] NZAR 354��������������������������������������������������������������������������������������������������������������������� 57.3.12 NH International (Caribbean) Ltd v UDCTT [2005] TTHC 38��������������������������������������������������������������������������������������������������� 4.6.1 NHS Trust v T (Adult Patient: Refusal of Medical Treatment) [2004] EWHC 1279 (Fam) [2005] 1 All ER 387������������������ 20.1.15 Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435���������������������������������������������������������������������� 24.3.4, 31.3.4 Nikonovs v Governor of Brixton Prison [2005] EWHC 2405 (Admin) [2006] 1 WLR 1518��������������������������������������������������� 29.4.3 No.56 Denton Road, Twickenham, Re [1953] Ch 51��������������������������������������������������������������������������������������������������������������� 54.2.10 Norris v Government of the United States of America (No.2) [2010] UKSC 9 [2010] 2 AC 487������������������� 23.3.10, 58.5.1, 59.6.6 North Range Shipping Ltd v Seatrans Shipping Corp [2002] EWCA Civ 405 [2002] 1 WLR 2397������������ 64.1.2, 64.2.12, 64.3.22 Northern Ireland Human Rights Commission’s Application for Judicial Review, Re [2018] UKSC 27 [2019] 1 All ER 173����������������������������������������������������������������������������������������������������������� 2.6.21, 6.3.11, 7.6.13, 14.1.5, 17.6.7, 32.5.10, 37.1.5–6, 38.3.6, 38.4.2, 38.4.9, 58.5.9, 58.5.12, 59.6.10 Norwich Pharmacal [1974] AC 133�������������������������������������������������������������������������������������������������������������������������������� 7.1.18, 17.5.3 Npower Direct Ltd v Gas and Electricity Markets Authority [2018] EWHC 3576 (Admin)����������������������������������������������������� 13.5.8 Nuttall v National Crime Agency [2016] EWHC 1911 (Admin) [2016] 4 WLR 134�������������������������������������������������� 64.2.2, 64.3.21 Nwabueze v General Medical Council [2000] 1 WLR 1760������������������������������������������������������������������������������������������ 4.2.5, 59.5.16 NWL Ltd v Woods [1979] 1 WLR 1294������������������������������������������������������������������������������������������������������������������������������������� 20.2.8 Nzolameso v Westminster City Council [2015] UKSC 22 [2015] PTSR 549��������������������������������������� 6.2.9, 39.2.13, 42.1.3, 42.2.2, 49.4.3, 64.1.7, 64.3.12, 64.4.9 O (A Child) v Rhodes [2015] UKSC 32 [2016] AC 219������������������������������������������������������������������������������������������������������������ 9.1.17 OA v Secretary of State for Education [2020] EWHC 276 (Admin)������������������������������������������������� 37.1.20, 58.4.4, 59.8.3, 59.10.6 Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 [2017] 1 WLR 3765���������������� 33.4.1, 64.1.1–3, 64.1.7–8, 64.1.11, 64.2.1, 64.2.5, 64.2.9–10, 64.2.13, 64.2.15 O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 [2005] 2 AC 534������������������������������������������������������������� 25.2.6 O’Brien v National Parole Board (1984) 12 Admin LR 249������������������������������������������������������������������������������������������������������ 2.6.15 O’Connor v Bar Standards Board [2017] UKSC 78 [2017] 1 WLR 4833������������������������������������������������������� 9.4.8, 26.2.16, 26.2.19

853

TABLE OF CASES O’Connor v Chief Adjudication Officer [1999] 1 FLR 1200����������������������������������������������������������������������������� 32.1.9, 57.2.6, 57.4.7 Office of Fair Trading v IBA Health Ltd [2004] EWCA Civ 142 [2004] 4 All ER 1103�������������������������������� 31.4.2, 31.4.6, 39.3.12, 39.3.14, 49.4.3, 64.4.11 Office of Government Commerce v Information Commissioner [2008] EWHC 774 (Admin) [2010] QB 98����������������������������������������������������������������������������������������������������������������������������������������������������������� 17.1.13, 29.4.14 Officer L, In re [2007] UKHL 36 [2007] 1 WLR 2135���������������������������������������������������������������������������������������� 7.7.8, 58.5.9, 59.2.3 Ogunsanya v General Medical Council [2020] EWHC 1500 (QB)����������������������������������������������������������������� 27.2.6, 27.3.6, 27.3.11 Old Cooperative Day Nursery Ltd v Ofsted [2016] EWHC 1126 (Admin) [2016] ACD 75��������������������������������������������������� 55.1.25 Oliveira v Attorney General of Antigua and Barbuda [2016] UKPC 24���������������������������������������������������������������������������������� 57.3.12 Omagh DC v MOH [2004] NICA 10������������������������������������������������������������������������������������������������������������������������������������������ 21.2.2 Open Spaces Society v Secretary of State for the Environment, Food and Rural Affairs [2020] EWHC 1085 (Admin) [2020] ACD 78������������������������������������������������������������������������������������������������������������������������������������ 56.2.5 Opposition to Urban Tolling Alliance v South African National Roads Agency Ltd [2013] ZASCA 148 [2013] 4 All SA 639��������������������������������������������������������������������������������������������������������������������������������������������������������������� 26.3.14 Orange Personal Telecommunications Services Ltd v Ofcom [2007] CAT 36���������������������������������������������������������������������������� 4.6.4 O’Reilly v Coventry Coroner [1996] COD 268������������������������������������������������������������������������������������������������������������������������� 51.2.5 O’Reilly v Mackman [1983] 2 AC 237������������������������������������������������������������������������ 2.1.14, 2.1.24, 15.5.2, 17.4.3, 17.5.8, 17.5.10, 19.2.28, 24.1.7, 25.1.8, 26.1.7, 26.1.9, 27.1.1, 27.3.5–6, 33.1.5, 33.1.8, 33.2.1, 33.2.3, 33.2.5, 33.3.3, 34.3.2, 47.1.26, 48.2.2, 61.1.5, 61.1.11, 61.6.2, 63.2.1, 64.1.7 Organ Retention Group Litigation, In re [2004] EWHC 644 (QB) [2005] QB 506����������������������������������������������������������������� 25.2.15 O’Rourke v Camden LBC [1998] AC 188������������������������������������������������������������������������������������������������������������������������������� 25.2.11 Osman (1998) 29 EHRR 245�������������������������������������������������������������������������������������������������������������������������������������������������������� 9.1.6 Oxfordshire County Council v Oxford City Council [2006] UKHL 25 [2006] 2 AC 674������������������������������������������� 2.1.32, 24.2.15 P, Re [2007] EWCA Civ 2������������������������������������������������������������������������������������������������������������������������������������������������������������ 9.5.5 P (Contact: Discretion), Re [1998] 2 FLR 696������������������������������������������������������������������������������������������������������������������������� 64.4.15 P v Commissioner of Police of the Metropolis [2017] UKSC 65 [2018] ICR 560�������������������������������������������� 8.1.2–4, 8.1.6, 8.1.11 P v Home Office [2017] EWHC 663 (QB) [2017] 1 WLR 3189���������������������������������������������������������������������������������� 27.3.6, 27.3.11 P v Liverpool Daily Post & Echo Newspapers Plc [1991] 2 AC 370����������������������������������������������������������������������������������������� 25.2.9 P v P (Ancillary Relief: Proceeds of Crime) [2003] EWHC 2260 (Fam) [2004] Fam 1���������������������������������������������������������� 24.2.13 Packham v Secretary of State for Transport [2020] EWCA Civ 1004��������������������������������������������������������������������������������������� 13.1.1 Packham v Secretary of State for Transport [2020] EWHC 829 (Admin)��������������������������������������������� 3.1.15, 6.1.8, 20.2.5, 22.4.25 Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997���������������������������������������� 2.6.13, 16.4.2, 33.2.5, 39.1.2, 39.3.2, 45.4.2, 52.2.1, 52.2.3, 53.1.2, 64.1.5, 64.2.14 Pagham Parish Council v Arun District Council [2019] EWHC 1721 (Admin)������������������������������������������������������������������������ 4.1.19 Palacegate Properties Ltd v Camden LBC [2000] 4 PLR 59������������������������������������������������������������������������������������������������������ 11.1.6 Palmer [2016] EWCA Civ 1061����������������������������������������������������������������������������������������������������������������������������������������������� 64.3.11 Panday v Virgil [2008] UKPC 24 [2008] 1 AC 1386����������������������������������������������������������������������������������������������������� 10.1.8, 65.1.3 Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32 [2012] 1 AC 1����������������������������� 17.1.10, 17.2.20, 41.2.3, 42.2.15, 54.2.5–6, 56.1.10 Paragon Finance Plc v Nash [2001] EWCA Civ 1466 [2002] 1 WLR 685������������������������������������������������������������������������������ 27.2.11 Parker v Law Society [1999] COD 183�������������������������������������������������������������������������������������������������������������������������������������� 21.1.9 Patel [2015] EWCA Civ 645������������������������������������������������������������������������������������������������������������������������������������������� 17.3.7, 17.4.3 Patel v SSHD [2013] UKSC 72 [2014] AC 651������������������������������������������������������������������������������������������������������������� 39.3.4, 53.1.2 Pathan v SSHD [2018] EWCA Civ 2103 [2018] 4 WLR 161�������������������������������������� 16.5.1, 54.1.2, 54.1.5, 54.1.8, 55.1.8, 55.1.13 Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783�������������������������������������������������� 8.1.6 Paul Okello v SSHD [1995] Imm AR 269�������������������������������������������������������������������������������������������������������������������������������� 39.3.10 PCCW-HKT v Secretary for Commerce [2014] HKCFI 1233��������������������������������������������������������������������������������������� 17.2.9, 26.3.3 Pearce v Mayfield School [2003] UKHL 34 [2004] 1 All ER 339��������������������������������������������������������������������������������������������� 9.1.15 Pearlberg v Varty [1972] 1 WLR 534��������������������������������������������������������������� 7.4.8, 7.7.4, 27.2.6, 30.1.8, 61.1.10, 61.3.5, 61.3.7–9 Peerless Ltd v Gambling Regulatory Authority [2015] UKPC 29����������������������������������������������������� 10.3.5, 10.3.10, 21.2.6, 21.1.20 Pelling v Bruce-Williams [2004] EWCA Civ 845 [2004] Fam 155��������������������������������������������������������������������������������������������� 9.2.4 Pepper v Hart [1993] AC 593������������������������������������������������������������������� 17.1.13, 29.1.2, 29.1.4, 29.4.1–2, 29.4.9, 29.4.12, 41.2.19 Percy v Hall [1997] QB 924����������������������������������������������������������������������������������������� 42.1.2, 44.1.6, 44.3.3, 44.3.6, 44.3.9, 46.1.12 Pergamon Press Ltd, In re [1971] Ch 388��������������������������������������������������������������������������������������������������������� 30.1.8, 61.6.9, 61.6.12 Pett v Greyhound Racing Association Ltd (No.1) [1969] 1 QB 125���������������������������������������������������������������������������������������� 20.1.24 PF (Nigeria) v SSHD [2015] EWCA Civ 251 [2015] 1 WLR 5235������������������������������������������������������������������������������������������� 36.1.3 Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591������������������������������������������������ 16.1.4, 31.1.2, 31.4.2, 32.4.3, 32.4.9, 32.4.13, 35.1.6, 57.1.14–15, 58.2.6, 58.3.11, 58.3.17–19 Pham v SSHD [2018] EWCA Civ 2064 [2019] 1 WLR 2070������������������������������������������������������������������������������������������������������ 6.1.4 Phelps v Hillingdon LBC [2001] 2 AC 619������������������������������������������������������������������������������������������������������������������������������ 25.2.11 Philomena Gangadeen v SSHD [1998] Imm AR 106������������������������������������������������������������������������������������������������������������������� 6.2.9 Phonographic Performance Ltd v Department of Trade and Industry [2004] EWHC 1795 (Ch)�������������������������������������������� 27.3.10 Pickin v British Railways Board [1974] AC 765������������������������������������������������������������������������������������������������������������ 12.3.3, 34.4.6 Pickstone v Freemans Plc [1989] AC 66������������������������������������������������������������������������������������������������������������������������ 29.4.9, 46.2.5 Pickwell v Camden LBC [1983] QB 962����������������������������������������������������������������������������������������������������������������������������������� 31.2.5 Pieretti v Enfield LBC [2010] EWCA Civ 1104 [2011] 2 All ER 642��������������������������������������������������������������������������������������� 4.5.10 Pinnock [2010] UKSC 45����������������������������������������������������������������������������������������������������������������������������������������������� 9.2.15, 58.4.7 Pitchaiappah Gnanavarathan v A Special Adjudicator [1995] Imm AR 64�������������������������������������������������������������������������������� 21.1.7

854

TABLE OF CASES Pitman v State of Trinidad and Tobago [2017] UKPC 6 [2018] AC 35��������������������������������������������������������������� 6.3.14, 7.4.1, 34.3.3 PJG v Child Support Agency [2006] EWHC 423 (Fam) [2006] 2 FLR 857���������������������������������������������������������������� 26.3.17, 65.1.8 PJS v News Group Newspapers [2016] UKSC 26 [2016] AC 1081������������������������������������������������������������������������������������������ 9.4.10 Plantagenet [2013] EWHC 3164 (Admin) [2014] ACD 26����������������������������������������������������������������������������������������������������������� 10.4 Plantagenet [2014] EWHC 1662 (QB)��������������������������������������������������������������������������������������������������������������������������������������� 51.1.4 Platinum Crown Investments Ltd v North East Essex Magistrates’ Court [2017] EWHC 2761 (Admin) [2018] 4 WLR 11��������������������������������������������������������������������������������������������������������������������������������������������������������������������� 3.2.12 PN (Uganda) v SSHD [2019] EWCA Civ 1508����������������������������������������������������������������������������������������������������������������������� 24.4.11 PN v SSHD [2019] EWHC 1616 (Admin)������������������������������������������������������������������������������������������������������������������� 22.1.24, 61.7.1 Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin) [2016] 1 WLR 551���������������������������������������������� 23.3.10, 59.6.6 Pomiechowski v District Court of Legnica [2012] UKSC 20 [2012] 1 WLR 1604�������������������������������������������� 7.6.20, 9.3.7, 59.4.4, 59.5.7, 59.5.10, 61.1.24 Poole Borough Council v GN [2019] UKSC 25 [2019] 2 WLR 1478����������������������������������������������������������������������� 25.2.12, 25.2.14 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 [2002] QB 48��������������������������������������������������������������������������������������������������������� 11.1.14, 12.2.2, 17.6.8, 22.1.29, 34.2.3 Porter v Magill (1998) 96 LGR 157 (DC) [2001] UKHL 67 [2002] 2 AC 357�������������������������������������������������������������������������� 52.2.6 Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624����������������������� 2.5.4, 9.2.4, 9.2.7, 9.2.14, 11.1.16, 13.2.2, 13.5.17, 39.1.6, 58.3.8, 59.5.7 Prebble v Television New Zealand Ltd [1995] 1 AC 321��������������������������������������������������������������������������������� 17.1.13, 29.4.7, 34.4.6 Presho v Insurance Officer [1984] 1 AC 310���������������������������������������������������������������������������������������������������������������� 13.4.1, 55.1.24 Primecrown Ltd v Medicines Control Agency [1997] EuLR 657�������������������������������������������������������������������������������������������� 36.3.22 Principal Reporter v K [2010] UKSC 56 [2011] 1 WLR 18����������������������������������������������������������������������������������������� 9.3.4–5, 59.6.3 Professional Standards Authority for Health and Social Care v General Medical Council [2019] EWHC 1638 (Admin)������������������������������������������������������������������������������������������������������������������������������������������������������������� 57.4.4 PSNI, Re [2010] NIQB 91���������������������������������������������������������������������������������������������������������������������������������������������������������� 18.2.2 Public Disclosure Commission v Isaacs [1988] 1 WLR 1043�������������������������������������������������������������������������������������������������� 61.1.10 Public Prosecution Service v McKee [2013] UKSC 32 [2013] 1 WLR 1611���������������������������������������������������������������������������� 61.4.3 Pullum v CPS [2000] COD 206������������������������������������������������������������������������������������������������������������������������������������������������ 64.3.21 Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260�������������������������������������������� 7.5.7, 27.2.6, 36.2.2 Q Ltd v HMRC [2019] EWHC 712 (QB)��������������������������������������������������������������������������������������������������������������������������������� 20.1.16 Qalter v Preston Crown Court [2019] EWHC 906 (Admin)���������������������������������������������������������������������������������������� 10.4.8, 10.4.11 QM Developments (UK) Ltd v Warrington Borough Council [2020] EWHC 1511 (Admin)����������������������� 36.3.2, 36.3.20, 36.3.32 Qualter v Preston Crown Court [2019] EWHC 2563 (Admin) [2020] 1 WLR 1073����������������������������������������������������������������� 46.1.5 Quazi v Quazi [1980] AC 744���������������������������������������������������������������������������������������������������������������������������������������������������� 6.3.14 The Queen v Moss [2013] UKPC 32 [2013] 1 WLR 3884���������������������������������������������������������������������������������������������������������� 4.4.4 Quila v SSHD [2010] EWCA Civ 1482 [2011] 3 All ER 81������������������������������������������������������������������������������������������������������ 58.1.9 Quinn Direct Insurance Ltd v Law Society [2010] EWCA Civ 805 [2011] 1 WLR 308����������������������������������������������������������� 7.6.11 QX v SSHD [2020] EWHC 1221 (Admin) [2020] ACD 83���������������������������������������������������������������� 2.5.1, 22.4.22, 59.5.7, 61.6.13 R & W Paul Ltd v The Wheat Commission [1937] AC 139��������������������������������������������������������������������������������������������������������� 7.5.3 R (007 Stratford Taxis Ltd) v Stratford on Avon District Council [2011] EWCA Civ 160 [2012] RTR 53����������������������������� 22.1.23 R (A & B) v East Sussex County Council (No.2) [2003] EWHC 167 (Admin) (2003) 6 CCLR 194����������������������������������������� 4.6.3 R (A & S Training College Ltd) v SSHD [2010] EWHC 3770 (Admin)��������������������������������������������������������������������������������� 20.1.24 R (A (A Child)) v Chief Constable of Dorset Police [2010] EWHC 1748 (Admin) [2011] 1 FLR 11������������������������������������ 19.3.18 R (A) v B Council [2007] EWHC 1529 (Admin) [2007] LGR 813������������������������������������������������������������������������������������������� 34.5.2 R (A) v Central Criminal Court [2017] EWHC 70 (Admin) [2017] 1 WLR 3567���������������������������������������������������� 20.1.24, 22.4.27 R (A) v Chief Constable of B [2012] EWHC 2141 (Admin) [2012] ACD 125������������������������������������������������������������������������� 34.5.4 R (A) v Chief Constable of Kent [2013] EWCA Civ 1706������������������������������������������������������������������������������������������������������ 17.3.12 R (A) v Coventry City Council [2009] EWHC 34 (Admin) [2009] 1 FCR 501���������������������������������������������������������������������� 41.1.14 R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557������������������������������������ 16.2.2, 16.4.1, 17.3.1, 17.3.14, 33.2.25, 33.3.7, 35.4.4, 49.1.1, 49.1.3, 49.2.1, 49.2.4, 59.5.9 R (A) v Director of Establishments of Security Service [2009] UKSC 12 [2010] 2 AC 1������������������������������� 9.2.11, 9.4.6, 28.1.10, 29.3.22, 36.2.2, 59.5.10 R (A) v East Sussex County Council [2005] EWHC 585 (Admin) (2005) 8 CCLR 228������������������������������������������� 18.1.13, 18.5.10 R (A) v Enfield LBC [2016] EWHC 567 (Admin) [2016] HLR 33������������������������������������������������������������������������������������������� 51.2.4 R (A) v General Medical Council [2004] EWHC 880 (Admin)������������������������������������������������������������������������������������������������� 31.3.5 R (A) v Head Teacher of P School [2001] EWHC Admin 721 [2002] ELR 244��������������������������������������������������������������������� 58.3.20 R (A) v Independent Appeal Panel for Sutton LBC [2009] EWHC 1223 (Admin) [2009] ELR 321���������������������������������������� 49.3.8 R (A) v Lambeth LBC [2001] EWCA Civ 1624 (2001) 4 CCLR 486 (CA)������������������������������������������������������������������������������ 57.1.4 R (A) v Lambeth LBC [2002] EWCA Civ 1084 [2002] HLR 998��������������������������������������������������������������������������������������������� 55.1.4 R (A) v Lord Saville of Newdigate [2001] EWCA Civ 2048 [2002] 1 WLR 1249��������������������������������� 2.6.6, 9.4.4, 32.4.10, 59.2.2 R (A) v National Asylum Support Service [2003] EWHC 1402 (Admin) [2003] EWCA Civ 1473 [2004] 1 WLR 752���������� 19.3.7 R (A) v National Probation Service [2003] EWHC 2910 (Admin) (2004) 7 CCLR 335��������������������������������������������������������� 55.1.17 R (A) v Newham LBC [2008] EWHC 2640 (Admin) [2009] 1 FCR 545���������������������������������������������������������������������������������� 55.3.9 R (A) v Partnerships in Care Ltd [2002] EWHC 529 (Admin) [2002] 1 WLR 2610����������������������������� 9.4.4, 22.4.18, 34.1.3, 34.2.6 R (A) v Secretary of State for Health [2017] UKSC 41 [2017] 1 WLR 2492��������������������������������������� 6.3.11, 16.3.5, 37.1.7, 56.2.4, 59.8.9, 59.8.15, 59.8.18 R (A) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696 [2019] 1 WLR 2979��������������� 4.5.10, 5.2.7, 15.1.5, 39.3.5, 39.3.13, 46.1.2, 46.1.17 R (A) v Secretary of State for Justice [2010] EWHC 1250 (Admin)��������������������������������������������������������������������������� 17.3.11, 31.3.9

855

TABLE OF CASES R (A) v South Kent Coastal CCG [2020] EWHC 372 (Admin)��������������������������������������������������� 2.1.8, 3.1.15, 21.4.4, 62.1.2, 62.2.9 R (A) v SSHD [2002] EWHC 1618 (Admin) [2003] 1 WLR 330����������������������������������������������������������������������������������������������� 9.5.5 R (A) v SSHD [2004] EWHC 1585 (Admin)����������������������������������������������������������������������������������������������������������������������������� 25.3.5 R (A) v SSHD [2006] EWHC 526 (Admin) [2006] Imm AR 477������������������������������������������������������������������������������������������� 54.1.13 R (A) v SSHD [2008] EWHC 142 (Admin)����������������������������������������������������������������������������������������������������������������������������� 24.4.12 R (A) v SSHD [2017] EWHC 1233 (Admin) [2017] ACD 71������������������������������������������������������������������������������������������������� 64.3.14 R (A1 Veg Ltd) v Hounslow LBC [2003] EWHC 3112 (Admin) [2004] LGR 536���������������������������������������� 17.3.13, 26.2.5, 31.3.7, 34.2.7, 61.5.6, 64.3.12 R (AA (Iraq)) v SSHD [2012] EWCA Civ 23�������������������������������������������������������������������������������������������������������������������������� 23.1.17 R (AA (Nigeria)) v SSHD [2010] EWHC 2265 (Admin)����������������������������������������������������������������������������������������������� 39.1.5, 52.2.5 R (AA (Sudan)) v SSHD [2017] EWCA Civ 138 [2017] 1 WLR 2894��������������������������������������������������������������������������� 1.2.4, 49.2.2 R (AA) v Rotherham Metropolitan Borough Council [2019] EWHC 3529 (Admin)���������������������������������������������������� 42.1.6, 62.1.5 R (Aamer) v Secretary of State for Foreign Affairs [2009] EWHC 3316 (Admin)������������������������������������������������������� 7.1.18, 19.3.4 R (AB and SB) v Nottingham City Council [2001] EWHC Admin 235 (2001) 4 CCLR 295��������������������������������������������������� 24.4.8 R (AB) v Chief Constable of Hampshire [2019] EWHC 3461 (Admin) [2020] ACD 30������������������������������������ 2.1.1, 3.1.3, 32.3.12 R (AB) v Ealing LBC [2019] EWHC 3351 (Admin) [2020] ACD 23������������������������������������������������������������� 26.1.17, 39.2.3, 57.4.4 R (AB) v Northumbria Healthcare NHS Foundation Trust [2020] EWHC 2287 (Admin)�������������������������������������������������������� 21.5.1 R (AB) v Secretary of State for Justice [2009] EWHC 2220 (Admin) [2010] 2 All ER 151����������������������������������������� 56.1.3, 59.1.7 R (AB) v SSHD [2018] EWCA Civ 383 [2018] Imm AR 1015����������������������������������������������� 4.2.8, 31.3.14, 39.2.4, 50.4.1, 50.4.13 R (Abbas) v SSHD [2017] EWHC 78 (Admin) [2017] 4 WLR 34�������������������������������������������������������������������������������������������� 17.4.8 R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2003] UKHRR 76������������������������������������������������������������������������������������������������ 2.6.21, 7.6.6, 34.4.9, 34.4.11, 34.4.14, 34.4.17, 40.1.4, 41.2.5, 56.1.10 R (Abbey Mine Ltd) v Coal Authority [2008] EWCA Civ 353�������������������������������� 4.2.5, 23.3.19, 55.1.24, 61.1.12, 61.6.7, 61.6.10 R (Abbott Laboratories Ltd) v NHS Herts Valleys Clinical Commissioning Group [2019] EWHC 1999 (Admin)����������������� 18.3.5 R (ABS Financial Planning Ltd) v FSCS [2011] EWHC 18 (Admin)��������������������������������������������������������������������������� 13.5.6, 61.2.3 R (AC (Algeria)) v SSHD [2020] EWCA Civ 36 [2020] 1 WLR 2893����������������������������������������������������������������������� 20.1.17, 39.2.6 R (AC) v DPP [2018] EWCA Civ 2092 [2019] 1 WLR 917���������������������������������������������������������������������������������������� 32.3.4, 46.1.19 R (Accenture Services Ltd) v HMRC [2009] EWHC 857 (Admin) [2009] STC 1053�������������������������������������������������������������� 16.6.5 R (Actis SA) v Secretary of State for Communities & Local Government [2007] EWHC 2417 (Admin)���������������� 54.1.13, 61.1.21 R (AD) v Hackney LBC [2019] EWHC 943 (Admin) [2019] PTSR 1947��������������������������������������������������������� 5.2.9, 32.5.2, 32.5.6, 51.1.6, 62.2.1, 62.2.9 R (AD) v London Borough of Hackney [2020] EWCA Civ 51 [2020] 1 WLR 15468������������������������������������������������������������ 29.3.24 R (Adams) v Commissioner for Local Administration [2011] EWHC 2972 (Admin)����������������������������������������������������������������� 4.2.9 R (Adams) v Secretary of State for Justice [2011] UKSC 18 [2012] 1 AC 48������������������������������������������������� 6.3.3–4, 29.5.4, 31.1.1 R (Adams) v Secretary of State for Justice [2018] EWHC 3766 (Admin)��������������������������������������������������������������������������������� 13.4.1 R (Adamson) v Kirklees Metropolitan Borough Council [2019] EWHC 1129 (Admin) [2020] EWCA Civ 154�������������������������������������������������������������������������������������������������������������� 4.1.9, 4.3.1, 6.1.1, 23.3.3–4, 34.5.7 R (Adath Yisroel Burial Society) v HM Senior Coroner for Inner North London [2018] EWHC 1286 (Admin) [2018] 4 Costs LR 749���������������������������������������������������������������������������������������������������������������������������������������������� 2.1.33, 18.1.17 R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251������������������������������������������������������������������������������������������������������������������������������������������������ 5.2.9, 16.4.3, 22.2.16, 37.1.19, 38.4.5–6, 50.4.8–9, 50.4.14, 50.4.16, 55.1.17, 55.2.4, 55.2.12, 57.1.10, 57.3.4, 57.4.5, 58.5.9, 59.1.9, 59.8.18, 59.10.3 R (Adelana) v Governor of Downview Prison [2008] EWHC 2612 (Admin)������������������������������������������������������������������������� 50.4.16 R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin)������������������������������������������������������������������������������������������������������� 2.1.9, 22.1.6 R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin)������������������������������� 5.2.7, 8.1.1, 14.1.7, 21.2.12, 31.2.5, 34.3.5, 36.3.31, 38.2.8, 55.2.7, 58.5.7, 59.8.16, 59.8.18 R (Adlard) v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 735 [2002] 1 WLR 2515����������������������������������������������������������������������������������������������������������������������������������������������������������������� 56.2.4 R (Adow) v Newham LBC [2010] EWHC 951 (Admin)����������������������������������������������������������������������������������������������������������� 24.3.3 R (Adriano) v Surrey County Council [2002] EWHC 2471 (Admin) [2003] Env LR 559���������������������������������������� 10.1.10, 55.3.15 R (Adult: Medical Treatment), Re [1996] 2 FLR 99������������������������������������������������������������������������������������������������������������������ 3.2.21 R (Advearse) v Dorset Council [2020] EWHC 807 (Admin)��������������������������������������������������������������������������������������� 4.1.19, 65.1.11 R (Aegis Group Plc) v Inland Revenue Commissioners [2005] EWHC 1468 (Ch)������������������������������������������������������� 18.1.9, 18.5.1 R (AF) v Kingston Crown Court [2017] EWHC 2706 (Admin) [2018] 1 Cr App R 32���������������������������������������������� 32.2.5, 32.2.12 R (AG (Pakistan)) v SSHD [2011] EWCA Civ 998��������������������������������������������������������������������������������������������������������������������� 4.5.9 R (AG) v SSHD [2020] EWHC 386 (Admin)�������������������������������������������������������������������������������������������������������������� 22.4.14, 32.4.7 R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin) [2010] ICR 260������������������������������������������������������������������������������������������������������������������������������������������������������������ 14.1.6, 29.4.7 R (Aggregate Industries UK Ltd) v English Nature [2002] EWHC 908 (Admin) [2003] Env LR 83��������������������������������������� 40.2.4 R (Agogo) v North Somerset Magistrates’ Court [2011] EWHC 518 (Admin)������������������������������������������������������������������������� 61.7.1 R (Agyarko) v SSHD [2017] UKSC 11 [2017] 1 WLR 823���������������������������������������������������������������� 37.1.2, 58.5.9, 59.6.2, 64.3.12 R (Agyeman) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWHC 2180 (Admin)����������������������������� 20.1.6 R (AH) v Cornwall Council [2010] EWHC 3192 (Admin)�������������������������������������������������������������������������������������������������������� 17.3.2 R (AHK) v SSHD (No.2) [2012] EWHC 1117 (Admin) [2012] ACD 66�������������������������������������������������������������������� 10.4.2, 17.1.14 R (Ahmad) v Newham LBC [2009] UKHL 14 [2009] 3 All ER 755����������������������������������������� 13.4.3, 13.5.5, 13.5.9, 39.3.5, 57.4.1 R (AIRE Centre) v SSHD [2018] EWCA Civ 2837 [2019] 1 WLR 3002��������������������������������������������� 5.2.4, 6.1.8, 38.2.10, 46.1.19

856

TABLE OF CASES R (Aitchison) v Sheffield Crown Court [2012] EWHC 2844 (Admin) [2013] ACD 7������������������������������������������������������������ 64.2.24 R (AK (Sri Lanka)) v SSHD [2009] EWCA Civ 447 [2010] 1 WLR 855����������������������������������������������������������������������������������� 4.3.2 R (Akbar) v Secretary of State for Justice [2019] EWHC 3123 (Admin)������������������������������������������������������������������������������������ 5.2.3 R (Akester) v Department for Environment Food and Rural Affairs [2010] EWHC 232 (Admin) [2010] Env LR 561����������� 16.3.2 R (Akhtar) v SSHD [2001] EWHC Admin 38�������������������������������������������������������������������������������������������������������������������������� 55.1.17 R (Akin) v Stratford Magistrates’ Court [2014] EWHC 4633 (Admin) [2015] 1 WLR 4829����������������������������������������������������� 4.2.2 R (Al Mahfuz) v Upper Tribunal [2019] EWHC 2318 (Admin)������������������������������������������������������������������������������������������������ 3.1.20 R (Al Rabbat) v Westminster Magistrates Court [2017] EWHC 1969 (Admin) [2018] 1 WLR 2009����������� 21.2.4, 21.2.12, 21.2.14 R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279 [2008] QB 289����������������������������������������������������������������������������������������������������������������������������������������������������������� 34.4.17, 58.5.7 R (AL) v Serious Fraud Office [2018] EWHC 856 (Admin)��������������������������������������������������������������������������� 32.3.4, 36.1.4, 36.3.20 R (Al-Ali) v Brent LBC [2018] EWHC 3634 (Admin)�������������������������������������������������������������������������������������������������� 18.3.5, 21.3.5 R (Alastairs Solicitors) v Exeter Crown Court [2011] EWHC 1794 (Admin)������������������������������������������������������������������������� 38.2.26 R (Albert Court Residents’ Association) v Westminster City Council [2011] EWCA Civ 430 [2012] PTSR 604�������������������� 40.2.3 R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295�������������������������������������������������������������������������������������������������� 1.2.2, 1.3.3, 4.6.2, 6.2.2, 9.2.4, 9.2.14, 22.2.26, 27.1.5, 33.2.20, 33.4.2, 37.1.3, 49.3.2, 49.4.1, 55.1.27, 56.1.1, 58.3.7, 58.5.2, 59.5.9, 64.3.19 R (Aldous) v Dartford Magistrates’ Court [2011] EWHC 1919 (Admin)���������������������������������������������������������������������������������� 18.2.7 R (Alemi) v Westminster City Council [2015] EWHC 1765 (Admin) [2015] PTSR 1339������������������������������������������������������� 43.1.8 R (Al-Enein) v SSHD [2019] EWCA Civ 2024 [2020] 1 WLR 1349���������������������������������������������������������������� 5.2.9, 46.1.7, 46.1.17 R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin)������������������������������������������������������������������������������������������������������������������������������� 34.4.12, 34.4.17, 38.2.10 R (Al-Hasan) v SSHD [2005] UKHL 13 [2005] 1 WLR 688������������������������������������������������������������������������������������� 63.3.1–2, 63.3.8 R (Ali) v Director of High Security Prisons [2009] EWHC 1732 (Admin) [2010] 2 All ER 82����������������������������������������������� 64.2.3 R (Ali) v MCO [2012] EWHC 1943 (Admin)���������������������������������������������������������������������������������������������������������������������������� 50.1.7 R (Ali) v Secretary of State for Justice [2013] EWHC 72 (Admin) [2013] 1 WLR 3536 [2014] EWCA Civ 194 [2014] 1 WLR 3202��������������������������������������������������������������������������������������������������� 16.1.3, 16.4.1, 44.3.6 R (Ali) v SSHD [2007] EWHC 1983 (Admin)��������������������������������������������������������������������������������������������������������������������������� 49.3.5 R (Ali) v SSHD [2012] EWHC 3379 (Admin)��������������������������������������������������������������������������������������������������������������������������� 61.2.7 R (Ali) v SSHD [2020] EWHC 390 (Admin)����������������������������������������������������������������������������������������������������������������������������� 49.2.2 R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58 [2008] 1 AC 332��������������������������������������������������������������������� 6.1.3 R (Allan) v South Tyneside Law Courts [2010] EWHC 107 (Admin)��������������������������������������������������������������������������������������� 24.4.4 R (Al-Le Logistics Ltd) v Traffic Commissioner for the South Eastern and Metropolitan Traffic Area [2010] EWHC 134 (Admin)�������������������������������������������������������������������������������������������������������������������������������������� 36.3.25, 63.3.2 R (Allensway Ltd) v Environment Agency [2015] EWCA Civ 1289 [2016] 1 WLR 1903����������������������������������������������������� 29.3.15 R (Alliance of Turkish Businesspeople Ltd) v SSHD [2020] EWCA Civ 553 [2020] 1 WLR 2436�������������������������� 23.3.15, 40.2.1, 41.2.9, 54.2.6 R (Alliance Spring Co Ltd) v First Secretary of State [2005] EWHC 18 (Admin) [2005] 3 PLR 76���������������������������������������� 18.2.5 R (Alliss) v Legal Services Commission [2002] EWHC 2079 (Admin)���������������������������������������������������������������������������������� 64.2.21 R (Allwin) v Snaresbrook Crown Court [2005] EWHC 742 (Admin)��������������������������������������������������������������������������������������� 32.2.5 R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 [2008] 1 AC 153���������� 6.3.8, 6.3.11, 9.1.7, 9.1.13, 9.1.18, 9.2.11 R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) [2010] HRLR 12������������������������������ 10.4.2, 10.4.7, 10.4.13, 16.1.1, 16.1.3, 17.2.4, 17.3.9, 17.4.11, 17.5.5 R (Alvi) v SSHD [2012] UKSC 33����������������������������������������������������������������������������������������������������������� 1.2.2, 6.2.1, 7.4.8, 14.1.18, 16.3.4, 34.4.6, 50.4.12, 61.4.2 R (Al-Zayyat) v General Medical Council [2010] EWHC 3213 (Admin)��������������������������������������������������������������������������������� 49.4.6 R (AM (A Child)) v SSHD [2018] EWCA Civ 1815 [2019] 1 All ER 455�������������������������������������������������������������������������������� 24.4.9 R (AM (Kenya)) v SSHD [2009] EWCA Civ 1009������������������������������������������������������������������������������������������������������������������� 6.2.12 R (AM) v Chief Constable of West Midlands Police [2010] EWHC 1228 (Admin)������������������������������������������������������������������� 9.5.5 R (AM) v DPP [2012] EWHC 470 (Admin)�������������������������������������������������������������������������������������������������������� 7.5.2, 7.5.4, 20.1.15 R (AM) v Newham LBC [2020] EWHC 327 (Admin)�������������������������������������������������������������������� 20.2.12, 24.4.8, 26.2.18, 46.1.13 R (Ames) v Lord Chancellor [2018] EWHC 2250 (Admin) [2018] ACD 115����������������������� 22.1.26, 34.1.1, 34.2.3, 39.2.13, 57.4.5 R (Amicus – MSF Section) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin) [2004] ELR 311������������������������������������������������������������������������������������������������������������������������������������������� 29.4.11, 34.4.19, 38.4.4 R (Amin) v SSHD [2002] EWCA Civ 390 [2003] QB 581 (CA)���������������������������������������������������������������������������������������������� 9.1.22 R (Amin) v SSHD [2003] UKHL 51 [2004] 1 AC 653������������������������������������������������������������������������������������������������������ 4.4.4, 7.6.2 R (Amvac Chemical UK Ltd) v Secretary of State for Environment, Food and Rural Affairs [2001] EWHC 1011 (Admin)�������������������������������������������������������������������������������������������������������������������������� 31.2.5, 61.6.7, 62.3.7 R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837��������������������������������������������������������������� 1.2.16, 5.1.1, 7.3.1, 7.4.1, 9.2.7, 9.3.5, 12.2.11, 29.4.7, 30.1.8, 59.5.4, 59.5.8 R (Andrews) v Minister for the Home Office [2019] EWHC 1126 (Admin)����������������������������������������������������������������������������� 24.2.9 R (Anglian Water Services Ltd) v Environment Agency [2003] EWHC 1506 (Admin) [2004] Env LR 287���������������������������������������������������������������������������������������������������������������������������������������� 51.1.7, 51.1.9, 61.6.10 R (Animal Defenders International) v Secretary of State for Culture Media and Sport [2008] UKHL 15 [2008] 1 AC 1312���������������������������������������������������������������������������������������������������������������������������������� 9.1.7, 9.2.14, 12.2.9, 58.5.5 R (Anti-Waste Ltd) v Environment Agency [2007] EWCA Civ 1377 [2008] 1 WLR 923���������������������������������������������������������� 4.5.1

857

TABLE OF CASES R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604����������������������������������������������������������� 1.2.15, 5.1.1, 7.1.13, 7.2.1, 7.5.1, 7.7.8, 26.2.10–11, 31.3.2, 35.2.3, 35.2.14, 39.2.14, 45.2.6, 54.1.21, 61.6.6 R (Aozora GMAC Investment Ltd) v HMRC [2019] EWCA Civ 1643 [2020] 1 All ER 803������������������������ 40.2.1, 41.2.9, 41.2.13, 42.2.15, 54.2.7 R (AP) v Leeds Youth Court [2001] EWHC 215 (Admin)��������������������������������������������������������������������������������������������������������� 40.2.4 R (AQA) v Lewisham LBC [2013] EWHC 211 (Admin)�������������������������������������������������������������������������������������������������������� 54.1.11 R (AR (Pakistan)) v SSHD [2016] EWCA Civ 807 [2017] 1 WLR 255���������������������������������������������������������������������� 22.2.28, 22.3.4 R (AR) v Hammersmith and Fulham LBC [2018] EWHC 3453 (Admin)��������������������������������������������������������������������������������� 16.3.5 R (AR) v Waltham Forest LBC [2020] EWHC 622 (Admin) [2020] PTSR 1023��������������������������������������������������������������������� 32.5.4 R (Arbab) v SSHD [2002] EWHC 1249 (Admin) [2002] Imm AR 536�������������������������������������������������������������������� 24.4.25, 34.5.12 R (Arca) v Cumbria County Council [2003] EWHC 232 (Admin)������������������������������������������������������������������������������ 10.2.7, 24.4.27 R (Archer) v HMRC [2017] EWHC 296 (Admin) [2017] 1 WLR 2066������������������������������������������������������������������������������������ 17.3.7 R (Archer) v HMRC [2019] EWCA Civ 1021 [2019] 1 WLR 6355������������������������������������������������� 10.1.18, 18.1.9, 18.5.7, 19.2.26, 26.3.4, 26.3.10, 36.3.5, 36.3.33 R (Ardagh Glass Ltd) v Chester City Council [2010] EWCA Civ 172 [2011] 1 All ER 476�������������������������������������������������� 22.4.21 R (Ariemuguvbe) v Islington LBC [2009] EWCA Civ 1308 [2010] HLR 254�������������������������������������������������������������������������� 29.5.7 R (Arslan) v SSHD [2006] EWHC 1877 (Admin)����������������������������������������������������������������������������������������������������� 18.1.31, 36.3.19 R (Arthurworry) v Haringey LBC [2001] EWHC Admin 698����������������������������������������������������������� 3.2.11, 21.5.30, 34.5.1, 34.5.10 R (Article 39) v Secretary of State for Education [2020] EWHC 2184 (Admin)����������������������������������������������� 31.2.5, 61.5.8, 62.3.3 R (Aru) v Chief Constable of Merseyside [2004] EWCA Civ 199 [2004] 1 WLR 1697����������������������������������������������������������� 9.1.24 R (AS) v Croydon LBC [2011] EWHC 2091 (Admin)�������������������������������������������������������������������������������������� 2.2.16, 17.3.6, 22.3.4 R (Asbestos Victims Support Groups’ Forum UK) v Lord Chancellor [2020] EWHC 2108 (Admin)�������������������������������������� 62.3.2 R (Asda Stores Ltd) v Leeds City Council [2019] EWHC 3578 (Admin) [2020] PTSR 874�������������������������������������� 13.5.3, 22.2.10 R (Asha Foundation) v Millennium Commission [2002] EWHC 916 (Admin) (Administrative Court)����������������������������������� 41.2.5 R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88������������������������������������������������������� 64.2.8, 64.3.10, 64.3.12 R (Ashley) v Secretary of State for Communities and Local Government [2012] EWCA Civ 559������������������������������������������ 61.2.6 R (Ashraf) v SSHD [2013] EWHC 4028 (Admin)����������������������������������������������������������������������������������������������������������� 2.2.1, 2.2.18 R (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region [2001] EWHC Admin 901 (2002) 5 CCLR 36���������������������������������������������������������������������������������������������������������� 20.1.15, 64.3.9 R (Asian Music Circuit) v Arts Council England [2012] EWHC 1538 (Admin)������������������������������������������������������������� 4.4.2, 15.1.2 R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129������������������������������������������� 14.3.8, 26.2.12, 26.3.12, 29.2.4, 31.4.6, 32.1.9–10, 34.3.5, 34.4.6, 39.3.11, 49.4.2, 57.1.14 R (ASK) v SSHD [2019] EWCA Civ 1239������������������������������������������������������������������������������ 45.2.3, 51.1.2, 55.2.5, 55.2.11, 61.2.2 R (Asliturk) v City of Westminster Magistrates’ Court [2010] EWHC 2148 (Admin) [2011] 1 WLR 1139����������������������������� 28.1.7 R (Aspinall) v Secretary of State for Work and Pensions [2014] EWHC 4134 (Admin) [2015] ACD 22������������������������������� 55.2.12 R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2002] EWCA Civ 20 [2003] 1 FCR 266������������������������������������������������������������������������������������������ 2.1.29, 5.4.11, 13.4.6, 50.4.12 R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2013] EWHC 3087 [2014] 1 WLR 2540������������������������������������������������������������������������������������������������������������������������������� 45.4.4 R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2017] EWHC 659 (Admin) [2017] ACD 63������������������������������������������������������������������������������������������������������������������ 58.3.23–24 R (Associated Newspapers Ltd) v Lord Justice Leveson [2012] EWHC 57 (Admin) [2012] ACD 23����������������� 4.6.2, 4.6.5, 30.1.3 R (Association of British Insurers) v Lord Chancellor [2017] EWHC 106 (Admin) [2017] ACD 34������������������������������������� 20.1.23 R (Association of Independent Meat Suppliers) v Food Standards Agency [2019] UKSC 36 [2019] PTSR 1443������������������� 8.1.14 R (Association of Pharmaceutical Importers) v Secretary of State for Health [2001] EWCA Civ 1986 [2002] EuLR 197��������������������������������������������������������������������������������������������������������������������������������������������� 18.2.5, 23.2.8, 43.1.3 R (Assura Pharmacy Ltd) v NHS Litigation Authority [2008] EWHC 289 (Admin)�������������������������������������������������� 31.3.16, 56.1.7 R (AT (Gambia) v SSHD [2017] EWHC 2714 (Admin) [2018] ACD 15���������������������������������������������������������������������������������� 22.1.6 R (Atamewan) v SSHD [2013] EWHC 2727 (Admin) [2014] 1 WLR 1959������������������������������������������������������������������� 6.3.6, 6.3.13 R (Atapattu) v SSHD [2011] EWHC 1388 (Admin)���������������������������������������������������������������������������������������������������������������� 25.2.15 R (Attfield) v Barnet LBC [2013] EWHC 2089 (Admin) [2013] PTSR 1559������������������������������������������������������������� 35.2.20, 39.1.5 R (Attwood) v Health Service Commissioner [2008] EWHC 2315 (Admin) [2009] 1 All ER 415�������������������������������������������� 6.2.8 R (Austin) v Chief Constable of Surrey [2010] EWHC 266 (Admin)��������������������������������������������������������������������������������������� 50.3.6 R (Austin) v Secretary of State for Communities & Local Government [2008] EWHC 3200 (Admin)����������������������������������� 18.2.5 R (Autonomous Non-Profit Organisation TV-Novosti) v Office of Communications [2020] EWHC 689 (Admin) [2020] 1 WLR 3130����������������������������������������������������������������������������������������������������������������������������������������������������������������� 59.7.2 R (Aviva Life and Pensions (UK) Ltd) v Financial Ombudsman Service [2017] EWHC 352 (Admin) [2017] ACD 53���������� 64.3.4 R (AW) v St George’s, University of London [2020] EWHC 1647 (Admin)����������������������������������������������� 4.1.20, 7.7.9, 22.1.9–10, 25.3.3, 27.2.10, 34.1.1 R (Aweys) v Birmingham City Council [2008] EWCA Civ 48 [2008] 1 WLR 2305�������������������������������������������������������������� 55.1.16 R (Awodiya) v HM Commissioners of Revenue and Customs [2019] EWHC 251 (Admin)�������������������������������������������������� 21.1.23 R (AZ) v SSHD [2017] EWCA Civ 35 [2017] 4 WLR 94������������������������������������������������������������������������������������������������������� 61.6.13 R (B (Algeria)) v Special Immigration Appeals Commission [2018] UKSC 5 [2018] AC 418������������������������������������� 7.6.6, 35.2.12 R (B) v Carlisle Crown Court [2009] EWHC 3540 (Admin)��������������������������������������������������������������������������������������� 36.3.28, 61.1.8 R (B) v Chief Constable of Derbyshire [2011] EWHC 2362 (Admin)�������������������������������������������������������������������������� 3.1.3, 22.1.41 R (B) v DPP [2009] EWHC 106 (Admin) [2009] 1 WLR 2072��������������������������������������������������������������������������������������� 9.5.5, 32.3.6 R (B) v Head Teacher of Alperton Community School [2001] EWHC Admin 229������������������������������������������� 4.2.6, 24.3.15, 31.3.7 R (B) v Huddersfield Magistrates’ Court [2014] EWHC 1089 (Admin) [2015] 1 WLR 4737�������������������������������������������������� 65.1.8

858

TABLE OF CASES R (B) v Lambeth LBC [2006] EWHC 639 (Admin)���������������������������������������������������������������������������������������������������� 2.1.29, 22.1.25 R (B) v Lewisham LBC [2008] EWHC 738 (Admin) [2009] 1 FCR 266������������������������������������������������������������������������������������ 6.2.9 R (B) v Merton LBC [2003] EWHC 1689 (Admin) [2003] 4 All ER 280��������������������������������������������������������������������� 61.5.9, 64.4.6 R (B) v Norfolk Youth Court [2013] EWHC 1459 (Admin) [2013] ACD 109������������������������������������������������������������������������ 47.1.11 R (B) v Nursing & Midwifery Council [2012] EWHC 1264 (Admin)����������������������������������������������������������������������������������� 54.2.5–6 R (B) v Officer of the Independent Adjudicator [2018] EWHC 1971 (Admin) [2019] PTSR 769�������������������������������������������� 16.4.1 R (B) v Redbridge LBC [2019] EWHC 250 (Admin) [2019] PTSR 1525������������������������������������������������������������������������������� 36.3.15 R (B) v S [2006] EWCA Civ 28 [2006] 1 WLR 810���������������������������������������������������������������������������������������������������������������� 17.4.11 R (B) v Secretary of State for Justice [2019] EWCA Civ 9 [2019] 4 WLR 42�������������������������������������������������� 9.1.6, 56.1.11, 59.3.5 R (B) v SSHD [2002] EWHC 854 (Admin)����������������������������������������������������������������������������������������������������������������������������� 48.1.16 R (B) v Stafford Combined Court [2006] EWHC 1645 (Admin) [2007] 1 WLR 1524��������������������������������������������������� 4.5.8, 32.2.7 R (B) v Westminster Magistrates’ Court [2014] UKSC 59 [2015] AC 1195������������������������������������������������������������������������������ 46.1.5 R (B) v Worcestershire County Council [2009] EWHC 2915 (Admin) (2010) 13 CCLR 13�������������������������������������������������� 51.1.10 R (BA (Nigeria)) v SSHD [2009] UKSC 7 [2010] 1 AC 444������������������������������������������������������������������������������������������� 7.4.9, 29.1.4 R (Baci Bedfordshire Ltd) v Environment Agency [2018] EWHC 2962 (Admin [2019] Env LR 15��������������������������������������� 13.1.3 R (Baci Bedfordshire Ltd) v Environment Agency [2019] EWCA Civ 1962 [2020] Env LR 16����������������������� 4.2.7, 13.4.6, 15.4.1, 16.4.6, 17.3.8, 65.1.8 R (Badger Trust) v Welsh Ministers [2010] EWCA Civ 807����������������������������������������������������������������������������������������������������� 23.2.9 R (Badmus) v SSHD [2020] EWCA Civ 657����������������������������������������������������� 21.4.4, 21.5.16, 26.1.13, 26.2.12–13, 26.3.1, 38.2.9 R (Bagdanavicius) v SSHD [2003] EWCA Civ 1605 [2004] 1 WLR 1207����������������������������������������������������������������������������� 17.2.19 R (Bah) v SSHD [2018] EWHC 2942 (Admin)������������������������������������������������������������������������������������������������������������������������� 31.4.7 R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin) [2020] QB 478����������� 3.2.11, 18.1.26, 21.2.28, 24.3.12, 24.3.14, 31.3.4, 44.2.2, 47.1.10, 65.1.6 R (Bahta) v SSHD [2011] EWCA Civ 895������������������������������������������������������������������������������������������������������� 18.1.24, 18.5.7, 18.5.9 R (Baiai) v SSHD (No.2) [2006] EWHC 1454 (Admin) [2007] 1 WLR 735 [2008] UKHL 53 [2009] AC 287)���������������������������������������������������������������������������������������������������������� 9.3.7, 12.2.11, 22.3.2, 58.5.1, 58.5.9, 59.10.5 R (Bailey) v St Albans District Council [2020] EWHC 24 (Admin) [2020] PTSR 1270�������������������������������������������������������� 55.1.22 R (Baird) v Tribunals Service [2010] EWHC 1257 (Admin)��������������������������������������������������������������������������������������������������� 48.1.16 R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647������������������������������������������ 4.1.5, 4.1.7–8, 4.1.14, 4.2.3, 16.5.1, 17.3.16, 17.4.11, 51.1.4, 51.1.11, 61.5.4, 61.5.6, 61.6.11, 61.7.5 R (Balakoohi) v SSHD [2012] EWHC 1439 (Admin)����������������������������������������������������������������������������������������������������������������� 2.6.6 R (Balbo B & C Auto Transporti Internationali) v SSHD [2001] EWHC 195 (Admin) [2001] 1 WLR 1556���������� 22.4.18, 36.3.33 R (Balding) v Secretary of State for Work and Pensions [2007] EWCA Civ 1327 [2008] 1 WLR 564���������������������������������� 27.2.12 R (Baljinder Singh) v HMRC [2010] UKUT 174 (TCC) [2010] STC 2020������������������������������������������������������������������������������ 38.3.3 R (Bamber) v CPS [2020] EWHC 1391 (Admin)�������������������������������������������������������������������������������������������������������������������� 26.2.18 R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs [2007] EWCA Civ 498 [2008] QB 365 (CA)���������������������������������������������������������������������������������������������������������������� 1.2.8, 45.2.3, 45.2.5, 46.1.1, 64.4.15 R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No.2) [2008] UKHL 61 [2009] AC 453���������������������������������������������������������������������������������������������������������� 2.1.29, 5.2.3, 6.3.16, 7.1.4–5, 7.6.20, 12.3.11, 13.1.5, 13.6.2, 14.1.16, 31.2.6, 32.1.7, 32.4.5, 34.4.9, 41.2.9, 41.2.13, 45.1.1, 54.2.7 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2115 (Admin)����������������� 17.4.4, 17.4.10 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.3) [2018] UKSC 3 [2018] 1 WLR 973��������������������������������������������������������������������������������������������������������� 4.2.5, 6.3.3, 23.3.30, 24.2.6, 52.2.1, 62.3.6 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.4) [2016] UKSC 35 [2017] AC 300�������������������������������������������������������������������������������������������������������������������������������������� 10.4, 10.4.2, 10.4.13, 13.3.2 R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067������������ 5.2.5, 6.1.2, 7.6.20, 10.4.12, 26.1.12, 34.4.3, 34.4.15, 35.4.4, 36.3.5, 39.1.3, 46.1.2 R (Banghard) v Bedford Borough Council [2017] EWHC 2391 (Admin) [2018] PTSR 1050����������������������������������������������� 47.1.11 R (Bank Renewables Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 606 (Admin) [2020] 4 WLR 84������������������������������������������������������������������ 17.6.2, 21.4.4, 21.4.6, 22.4.11, 22.4.26 R (Banks) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 416 (Admin)������������������������������������������������������������������������������������������������������������������������ 25.3.2, 36.4.7, 61.6.7–8 R (Bantamagbari) v City of Westminster [2003] EWHC 1350 (Admin)��������������������������������������������������������������������������������� 55.3.14 R (BAPIO Action Ltd) v SSHD [2007] EWCA Civ 1139���������������������������������������������������������������������������������������������� 61.3.5, 62.2.1 R (BAPIO Action Ltd) v SSHD [2008] UKHL 27 [2008] 1 AC 1003������������������������������������������������������������� 41.2.5, 41.2.21, 54.2.5 R (Baraka) v SSHD [2018] EWHC 1549 (Admin)������������������������������������������������������������������������������������������������������������������ 57.3.12 R (Barclay) v Lord Chancellor [2009] UKSC 9 [2010] 1 AC 464������������������������������������������� 4.5.11, 5.2.10, 6.3.13, 31.1.7, 59.10.7 R (Barclay) v Lord Chancellor (No.2) [2014] UKSC 54 [2015] AC 276������������������������������������������������������������������������� 5.3.5, 34.4.3 R (Barda) v Mayor of London [2015] EWHC 3584 (Admin) [2016] 4 WLR 20���������������������������������������������������������������������� 13.6.3 R (Barron) v Surrey County Council [2002] EWCA Civ 713������������������������������������������������������������������������������������������������������ 3.1.5 R (Barry) v Liverpool City Council [2001] EWCA Civ 384 [2001] LGR 361������������������������������������������������������������ 24.4.26, 50.2.1 R (Barwise) v Chief Constable of West Midlands Police [2004] EWHC 1876 (Admin)��������������������������������������������� 24.3.15, 31.3.4 R (Bary) v Secretary of State for Justice [2010] EWHC 587 (Admin)������������������������������������������������������������������������������������ 22.1.37 R (Bashir) v SSHD [2018] UKSC 45 [2019] AC 484���������������������������������������������������������������������������������������������������������������� 6.3.13 R (Bate) v Parole Board [2018] EWHC 2820 (Admin) [2019] ACD 4�������������������������������������������������������������������������������������� 59.4.5 R (Bateman) v Legal Services Commission [2001] EWHC 797 (Admin)��������������������������������������������������������������������������������� 22.1.7

859

TABLE OF CASES R (Bates) v Maldon District Council [2019] EWCA Civ 1272������������������������������������������������������ 13.5.15, 55.1.22, 64.3.11, 64.3.22 R (Bath) v North Somerset Council [2008] EWHC 630 (Admin) [2009] HLR 1���������������������������������������������������������������������� 54.2.7 R (Bavi) v Snaresbrook Crown Court [2013] EWHC 4015 (Admin) [2014] ACD 52��������������������������������������������������������������� 49.3.2 R (BB (Algeria)) v Special Immigration Appeals Commission [2011] EWHC 336 (Admin) [2012] QB 146�������������������������� 36.4.9 R (BBC) v Information Tribunal [2007] EWHC 905 (Admin) [2007] 1 WLR 2583����������������������������������������������������������������� 3.2.25 R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin) [2019] ACD 148����������������������������� 4.5.8, 24.2.9, 48.1.9, 52.2.6 R (BBC) v Secretary of State for Justice [2012] EWHC 13 (Admin) [2013] 1 WLR 964���������������������������� 17.2.1, 17.2.10, 17.2.17 R (Beach) v Folkestone Magistrates’ Court [2018] EWHC 2843 (Admin) [2018] ACD 125���������������������������������������������������� 39.2.3 R (Beale) v Camden LBC [2004] EWHC 6 (Admin) [2004] LGR 291������������������������������������������������������������������������� 40.2.4, 62.3.6 R (Beckett) v SSHD [2008] EWHC 2002 (Admin)�������������������������������������������������������������������������������������������������������������������� 17.4.8 R (Bedford) v London Borough of Islington [2002] EWHC 2044 (Admin) [2003] Env LR 463���������������������������������� 18.2.4, 61.6.8 R (Beer) v Hampshire Farmers Market Ltd [2003] EWCA Civ 1056 [2004] 1 WLR 233���������������������������� 34.1.3, 34.2.3, 34.2.7–8 R (Beeson) v Dorset County Council [2001] EWHC Admin 986 [2002] HRLR 368 [2002] EWCA Civ 1812 [2003] UKHRR 353���������������������������������������������������������������������� 1.1.3, 9.2.4, 22.1.28, 23.2.12, 64.2.21 R (Beety) v Nursing and Midwifery Council [2017] EWHC 3579 (Admin)��������������������������������������������������������������������������� 18.4.13 R (Begum) v Entry Clearance Officer [2019] EWHC 2196 (Admin)���������������������������������������������������������������������������������������� 49.1.3 R (Begum) v SSHD [2019] EWHC 1361 (Admin)������������������������������������������������������������������������������������������������������������������ 55.1.23 R (Begum) v Tower Hamlets LBC [2002] EWHC 633 (Admin) [2003] HLR 70�������������������������������������������������������������������� 61.6.10 R (Begum) v Tower Hamlets LBC [2006] EWCA Civ 733 [2006] LGR 674�������������������������������������������������������������� 32.1.11, 41.2.2 R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593���������������������������������������������� 2.1.11, 10.1.15, 22.1.13, 22.4.22, 29.3.6, 29.3.20, 32.2.2, 32.2.6, 32.2.13, 32.3.2, 33.4.4, 35.4.4, 49.4.3 R (Ben Hoare Bell Solicitors) v Lord Chancellor [2015] EWHC 523 (Admin) [2015] 1 WLR 4175���������� 21.4.5–7, 22.1.8, 45.4.2, 53.1.3, 53.1.7, 58.3.24 R (Ben-Abdelaziz) v Haringey LBC [2001] EWCA Civ 803 [2001] 1 WLR 1485������������������������������������������������������������������� 2.1.10 R (Benchaouir) v SSHD [2019] EWHC 2606 (Admin) [2019] ACD 143��������������������������������������������������������������������������������� 6.2.10 R (Bennett) v Parole Board [2019] EWHC 2746 (Admin) [2019] ACD 139����������������������������������������������������������������������������� 61.7.4 R (Bennion) v Chief Constable of Merseyside Police [2001] EWCA Civ 638�������������������������������������������������������������������������� 16.5.6 R (Benson) v Secretary of State for Justice [2007] EWHC 2055 (Admin)�������������������������������������������������������������������������������� 61.6.7 R (Bentley) v HM Coroner District of Avon [2001] EWHC Admin 170����������������������������������������������������������������������� 61.3.6, 61.6.8 R (Beresford) v Sunderland City Council [2003] UKHL 60 [2004] 1 AC 889�������������������������������������������������������������������������� 49.4.3 R (Berkeley Burke SIPP Administration Ltd) v Financial Ombudsman Service Ltd [2018] EWHC 2878 (Admin) [2019] Bus LR 437���������������������������������������������������������������������������������������������������������������������������������������������������������������� 39.3.14 R (Berkshire Assets (West London) Ltd) v Hounslow LBC [2018] EWHC 2896 (Admin)������������������������������������������ 16.4.6, 48.1.9 R (Berky) v Newport City Council [2012] EWCA Civ 378 [2012] 2 CMLR 44��������������������������������������������������������������������� 26.1.10 R (Bernard) v Enfield LBC [2002] EWHC 2282 (Admin) [2003] UKHRR 148������������������������������������������������������������������������� 9.5.5 R (Bertoncini) v Hammersmith and Fulham LBC 2 June 2020 unrep������������������������������������������������������������������������� 18.3.7, 18.4.17 R (Bevan & Clarke LLP) v Neath Port Talbot County Borough Council [2012] EWHC 236 (Admin) [2012] ACD 62������������������������������������������������������������������������������������������������������������������������������������������������������������ 34.5.4, 56.3.4 R (Bewry) v Norwich City Council [2001] EWHC Admin 657 [2002] HRLR 21������������������������������������������������������ 9.1.16, 59.5.16 R (BF (Eritrea)) v SSHD [2019] EWCA Civ 872 [2020] 4 WLR 38 [2020] 4 WLR 38���������������������������������������������������������� 32.5.12 R (BG) v Medway Council [2005] EWHC 1932 (Admin) [2006] 1 FLR 663������������������������������������������������������������� 19.2.25, 19.3.4 R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755������������������������������������������������������ 11.1.3, 31.4.9, 40.1.4, 41.2.2, 41.2.12, 61.1.17, 62.2.9 R (Bhatti) v Bury Metropolitan Borough Council [2013] EWHC 3093 (Admin)������������������������������������������������������������������������ 5.4.5 R (Bhoti) v SSHD [2003] EWHC 1628 (Admin)��������������������������������������������������������������������������������������������������������������������� 55.1.17 R (Bibi) v Newham LBC [2001] EWCA Civ 607 [2002] 1 WLR 237������������������������������������ 24.3.3, 33.1.8, 40.2.3, 41.1.18, 41.2.6, 41.2.8, 41.2.14, 56.1.10, 64.2.19 R (Bibi) v SSHD [2015] UKSC 68 [2015] 1 WLR 5055��������������������������������������������������������������������� 5.3.2, 17.1.15, 32.5.11, 59.6.4 R (Binyan Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin)������������������������������������������������������������������������������������������������������������������������������������ 17.4.13, 17.5.3 R (Birks) v Commissioner of Police of the Metropolis [2018] EWHC 807 (Admin) [2018] ICR 1400���������� 34.5.9, 56.1.2, 57.3.12 R (Birmingham and Solihull Taxi Association) v Birmingham International Airport [2009] EWHC 1913 (Admin)��������������� 52.1.4 R (Birmingham Care Consortium v Birmingham City Council [2011] EWHC 2656 (Admin)��������������������������������������������������� 4.6.1 R (Birmingham City Council) v Birmingham Crown Court [2009] EWHC 3329 (Admin) [2010] 1 WLR 1287��������������������������������������������������������������������������������������������������������������������������������������� 64.1.1, 64.2.4, 64.2.13 R (Bishop) v Public Service Ombudsman for Wales [2020] EWHC 1503 (Admin)������������������������������������������������������������������ 20.2.1 R (Bishop’s Stortford Civic Federation) v East Hertfordshire District Council [2014] EWCA Civ 348 (Admin) [2014] PTSR 1035������������������������������������������������������������������������������������������������������������������������������������������������������������������� 13.4.5 R (Black) v Parole Board [2020] EWHC 265 (Admin)�������������������������������������������������������������������������������������������������������������� 61.7.4 R (Black) v Secretary of State for Justice [2009] UKHL 1 [2009] AC 949������������������������������������������������������������������� 2.6.22, 9.2.11 R (Blewett) v Derbyshire County Council [2004] EWCA Civ 1508 [2004] Env LR 293������������������������������� 24.3.15, 56.3.6, 58.5.7 R (Bloggs 61) v SSHD [2003] EWCA Civ 686 [2003] 1 WLR 2724������������������������������������������������������������������������ 41.2.21, 56.1.10 R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074�������������������������� 5.3.2, 16.4.3, 17.2.3, 23.3.6, 26.2.12, 44.3.2, 50.3.6, 61.1.14, 62.1.5, 62.3.5 R (Bloomsbury Institute Ltd) v Office for Students [2020] EWHC 580 (Admin)��������������������������������������������������������� 58.1.7, 59.9.2 R (Bluefin Insurance Services Ltd) v Financial Ombudsman Service Ltd [2014] EWHC 3413 (Admin) [2015] Bus LR 656������������������������������������������������������������������������������������������������������������������������������������������ 49.1.3, 49.2.1, 49.2.4 R (BM) v Hackney LBC [2016] EWHC 3338������������������������������������������������������������������������������������������������������������������������������ 4.4.2 R (Bodimeade) v Camden LBC [2001] EWHC Admin 271 (2001) 4 CCLR 246��������������������������������������������������������� 6.2.4, 56.1.10

860

TABLE OF CASES R (Bokrosova) v Lambeth LBC [2015] EWHC 3386 (Admin) [2016] PTSR 355���������������������������� 4.1.13, 19.3.20, 26.1.17, 62.2.3 R (Bond) v Vale of White Horse District Council [2019] EWHC 3080 (Admin) [2020] PTSR 724����������������������������������������� 54.2.6 R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 [2012] IRLR 37�������������������������������������������������������������������� 61.7.6 R (Boots Management Services Ltd) v Central Arbitration Committee [2014] EWHC 65 (Admin) [2014] IRLR 278������������ 12.2.2 R (Boparan) v Governor of Stoke Heath Prison [2019] EWHC 2352 (Admin) [2019] ACD 127������������������������������������������� 55.1.25 R (Boskovic) v Chief Constable of Staffordshire [2019] EWCA Civ 676 [2019] ICR 1315��������������������������������������� 56.1.1, 56.2.10 R (Bottomley) v General Commissioners of Income Tax [2009] EWHC 1708 (Admin) [2009] STC 2532��������������������������� 17.3.15 R (Boulting) v HMRC [2020] EWHC 2207 (Admin)�������������������������������������������������������������������������������������������������� 21.4.4, 36.3.11 R (Bowen) v Secretary of State for Justice [2017] EWCA Civ 2181 [2018] 1 WLR 2170����������������������������� 11.1.22, 23.3.5, 39.2.6 R (Bown) v Secretary of State for Transport [2003] EWCA Civ 1170 [2003] 3 PLR 100�������������������������������������������������������� 23.1.7 R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36 [2009] QB 114������������������������������� 29.4.12, 55.3.10 R (Bramall) v Law Society [2005] EWHC 1570 (Admin)����������������������������������������������������������������������������������������������������������� 2.6.9 R (Breckland District Council) v Boundary Committee for England [2009] EWCA Civ 239 [2009] PTSR 1611������� 62.2.4, 62.3.5 R (Brent LBC) v Fed 2000 [2005] EWHC 2679 (Admin) [2006] ELR 169�������������������������������������������������������������� 24.3.15, 34.4.22 R (Brent LBC) v Fed 2000 [2006] EWHC 2282 (Admin)������������������������������������������������������������������������������������������������������� 22.2.26 R (Bridgerow Ltd) v Cheshire West and Chester Borough Council [2014] EWHC 1187 (Admin) [2015] PTSR 91��������������������������������������������������������������������������������������������������������������������������������������������� 39.2.13, 50.2.3, 61.1.8 R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058������������������������������������������������������ 10.1.20, 46.1.17, 55.2.9, 55.2.11, 58.4.9, 59.1.5, 59.6.8 R (Bright) v Central Criminal Court [2001] 1 WLR 662���������������������������������������������������������������������� 7.6.8, 7.6.17, 7.6.19, 11.1.10, 11.1.13, 35.2.7, 35.4.5, 59.5.16 R (Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1800 (Admin)���������������������������������������� 36.3.28 R (Britannic Asset Management Ltd) v Pensions Ombudsman [2002] EWHC 441 (Admin) [2002] EWCA Civ 1405 [2002] 4 All ER 860���������������������������������������������������������������������������������������������������������� 47.1.10, 49.1.3 R (Britcits) v SSHD [2017] EWCA Civ 368 [2017] 1 WLR 3345��������������������������������������������������� 32.5.9, 53.1.2–3, 55.1.11, 57.4.7 R (British Academy of Songwriters, Composers and Authors) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin) [2015] Bus LR 1435������������������������������������������������ 12.3.14, 18.1.6, 24.4.17, 49.4.3, 62.2.5, 62.3.8 R (British Aggregates Associates) v Her Majesty’s Treasury [2002] EWHC 926 (Admin) [2002] EuLR 394��������������������������������������������������������������������������������������������������������������������������������������� 12.3.13, 26.2.13, 26.3.11 R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182 [2018] QB 149���������������������������������������������������������������������������������������������������������������������������������� 7.6.19, 17.2.17, 17.6.2, 17.6.4, 17.6.7, 23.3.9, 37.1.10, 37.1.14, 58.5.15 R (British American Tobacco (UK) Ltd) v Secretary of State for Health [2018] EWHC 3586 (Admin) [2019] ACD 34���������������������������������������������������������������������������������������������������������������������������������������������������������������������� 19.2.27 R (British American Tobacco) v Secretary of State for Health [2004] EWHC 2493 (Admin)�������������������������������������������������� 31.1.1 R (British Bankers Association) v Financial Services Authority [2011] EWHC 999 (Admin)�������������������������������������������������� 22.2.8 R (British Beer and Pub Association) v Canterbury City Council [2005] EWHC 1318 (Admin) [2006] LGR 596������������������������������������������������������������������������������������������������������������������������������������������ 26.3.19, 36.4.9, 50.4.14 R (British Blind and Shutter Association) v Secretary of State for Housing Communities and Local Government [2019] EWHC 3162 (Admin)������������������������������������������������������������ 24.4.1, 26.3.6, 61.4.2, 61.6.6, 62.3.6 R (British Board of Film Classification) v Video Appeals Committee [2008] EWHC 203 (Admin) [2008] 1 WLR 1658��������������������������������������������������������������������������������������������������������������������������������������������������������������� 48.1.16 R (British Civilian Internees – Far Eastern Region) v Secretary of State for Defence [2003] EWCA Civ 473 [2003] QB 1397������������������������������������������������������������������� 11.1.3, 33.4.2, 55.1.8, 58.2.7, 58.3.5, 58.3.24 R (British Gas Trading Ltd) v Gas and Markets Authority [2019] EWHC 3048 (Admin)�������������������������������������������� 49.3.1, 62.3.6 R (British Homeopathic Association) v National Health Service Commissioning Board [2018] EWHC 1359 (Admin) [2018] PTSR 2031������������������������������������������������������������������������������������������� 5.2.9, 22.1.26, 62.3.2 R (British Medical Association) v Secretary of State for Health [2008] EWHC 599 (Admin)������������������������������������������������ 54.1.15 R (British Medical Association) v Secretary of State for Health and Social Care [2020] EWHC 64 (Admin) [2020] Pens LR 10������������������������������������������������������ 21.4.4, 32.5.7, 55.2.10–11, 59.5.9, 59.8.17–18 R (British Pregnancy Advisory Service) v Secretary of State for Health and Social Care [2019] EWHC 1397 (Admin) [2019] 1 WLR 5029 [2020] EWCA Civ 355 [2020] 1 WLR 3240������������������� 5.2.8, 48.1.9, 62.2.1 R (British Sky Broadcasting Ltd) v Central Criminal Court [2014] UKSC 17 [2014] AC 885����������������������������������� 55.1.15, 61.6.5 R (British Telecommunications Plc) v HM Treasury [2018] EWHC 3251 (Admin) [2019] Pens LR 9 [2020] EWCA Civ 1���������������������������������������������������������������������������������������������������������������������������� 5.4.4, 23.3.3, 39.1.5, 55.1.13 R (British Waterways Board) v First Secretary of State [2006] EWHC 1019 (Admin)����������������������������������������������������������� 26.3.18 R (Britwell Parish Council) v Slough Borough Council [2019] EWHC 988 (Admin) [2019] ACD 70��������������������������� 6.2.4, 6.2.8, 29.5.9, 48.1.16 R (Broadbent) v Parole Board [2005] EWHC 1207 (Admin)���������������������������������������������������������������������������������������������������� 36.4.9 R (Broadway Care Centre Ltd) v Caerphilly County Borough Council [2012] EWHC 37 (Admin)���������������������������� 34.5.3, 38.4.5 R (Brommell) v Reading Borough Council [2018] EWHC 3529 (Admin)�������������������������������������������������������������������������������� 50.3.3 R (Brook) v Preston Crown Court [2018] EWHC 2024 (Admin [2018] ACD 95����������������������������������������� 24.4.13, 46.1.12, 49.3.5 R (Brooke Energy Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWHC 2012 (Admin)�������������������������������������������������������������������������������������������������������������������������������������������������� 62.2.6 R (Brookes) v Secretary of State for Work and Pensions [2010] EWCA Civ 420 [2010] 1 WLR 2448������������������������������������������������������������������������������������������������������������������������������������� 19.2.20, 23.1.10, 58.2.4 R (Brooks) v Islington LBC [2015] EWHC 2657 (Admin) [2016] PTSR 389���������������������������������������������������������������������������� 4.5.8 R (Broomfield) v HMRC [2018] EWHC 1966 (Admin) [2019] 1 WLR 1353�������������������������������������������������������������� 4.2.10, 61.4.3

861

TABLE OF CASES R (Brown) v Carlisle City Council [2010] EWCA Civ 523 [2011] Env LR 71����������������������������������������������������������� 23.3.31, 36.4.9 R (Brown) v Secretary of State for Justice [2017] UKSC 81 [2018] AC 215���������������������������������������������������������������� 7.4.7, 24.4.17 R (Brown) v SSHD [2015] UKSC 8 [2015] 1 WLR 1060��������������������������������� 5.2.3, 16.6.4, 18.4.5, 26.2.12, 29.4.2, 29.4.4, 32.4.6 R (Browning) v Lewes Crown Court [2012] EWHC 1003 (Admin)���������������������������������������������������������������������������������������� 21.2.26 R (Broxbourne Borough Council) v North & East Hertfordshire Magistrates’ Court [2009] EWHC 695 (Admin)����������������� 61.1.8 R (Bruton) v Governor of Swaleside Prison [2017] EWHC 704 (Admin) [2017] ACD 69������������������������������������������� 9.5.5, 60.1.12 R (Brynmawr Foundation School Governors) v Welsh Ministers [2011] EWHC 519 (Admin)������������������������������������������������ 50.3.5 R (Buckingham) v NHS Corby Clinical Commissioning Group [2018] EWHC 2080 (Admin) [2018] ACD 111������������������������������������������������������������������������������������������������������������������������������������������������������ 61.1.18, 65.1.13 R (Buckley) v Bath and North East Somerset Council [2018] EWHC 1551 (Admin) [2019] PTSR 335������������������������������������������������������������������������������������������������������������������������������� 4.1.20, 21.3.3, 55.2.11, 64.3.5 R (Buddington) v SSHD [2006] EWCA Civ 280����������������������������������������������������������������������������������������������������������������������� 29.1.8 R (Bukartyk) v Welwyn Hatfield Borough Council [2019] EWHC 3480 (Admin)����������������������������������������������������������������� 36.3.23 R (Bunce) v Pensions Appeal Tribunal [2009] EWCA Civ 451����������������������������������������������������������������������������������������������� 47.1.10 R (Burke) v General Medical Council [2005] EWCA Civ 1003 [2006] QB 273��������������������������������������������������������������������� 24.2.12 R (Burkett) v Hammersmith and Fulham LBC [2004] EWCA Civ 1342��������������������������������������������������������������������������������� 18.1.25 R (Burns) v Woolwich Crown Court [2010] EWHC 129 (Admin)������������������������������������������������������������������������������������������ 41.2.21 R (Bus and Coach Association Ltd) v Secretary of State for Transport [2019] EWHC 3319 (Admin)���������������������������������������������������������������������������������������������������������� 4.5.2, 24.2.11, 24.2.14, 24.2.16 R (Bushell) v Newcastle Upon Tyne Licensing Justices [2004] EWHC 446 (Admin) [2006] UKHL 7 [2006] 1 WLR 496������������������������������������������������������������������������������������������������������������������������������� 4.4.6, 4.5.11, 22.2.7, 23.2.10 R (Business Energy Solutions Ltd) v Preston Crown Court [2018] EWHC 1534 (Admin) [2018] 1 WLR 4887������������������������������������������������������������������������������������������������������������������������������������������������� 29.3.25, 36.3.25 R (Butt) v SSHD [2019] EWCA Civ 256 [2019] 1 WLR 3873���������������������������������������������������������������������������� 5.2.9, 7.6.17, 59.6.8 R (Buxton) v Secretary of State for Work and Pensions [2018] EWHC 2196 (Admin) [2019] PTSR 502������������������������������� 55.2.4 R (C) v Birmingham City Council [2008] EWHC 3036 (Admin) [2009] 1 All ER 1039�������������������������������������������������������� 22.2.15 R (C) v Brent, Kensington and Chelsea and Westminster Mental Health NHS Trust [2002] EWHC 181 (Admin) (2003) 6 CCLR 335������������������������������������������������������������������������������������������������������������������� 17.1.6 R (C) v Chief Constable of Greater Manchester [2011] EWCA Civ 175 [2011] 2 FLR 383�������������������������������������������� 2.6.3, 2.6.7, 2.6.11, 19.1.12, 24.4.15 R (C) v Financial Services Authority [2012] EWHC 1417 (Admin)�������������������� 4.2.9, 21.5.21, 36.3.12–13, 36.3.20, 64.3.3, 64.5.2 R (C) v Lambeth LBC [2008] EWHC 1230������������������������������������������������������������������������������������������������������������������������������� 55.1.6 R (C) v Lewisham LBC [2003] EWCA Civ 927 [2003] 3 All ER 1277���������������������������������������������������������������������������������� 56.2.10 R (C) v Merton LBC [2005] EWHC 1753 (Admin) [2005] 3 FCR 42������������������������������������������������������������������������������������� 64.2.21 R (C) v Nottingham City Council [2010] EWCA Civ 790 [2011] 1 FCR 127��������������������������������������������������� 4.5.9, 23.1.10, 36.3.5 R (C) v Salford City Council [2010] EWHC 2325 (Admin)���������������������������������������������������������������������������������������������������� 18.2.17 R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657��������������� 4.3.3, 4.5.5, 6.3.20, 11.1.16, 17.1.6, 17.2.8, 17.3.12, 23.3.31, 24.3.11, 24.3.15, 34.3.5, 61.5.8 R (C) v Secretary of State for Justice [2010] EWHC 3407 (Admin)��������������������������������������������������������������������������������������� 26.2.19 R (C) v Secretary of State for Justice [2016] UKSC 2 [2016] 1 WLR 444�������������������������������������������������������������������������������� 21.5.1 R (C) v Secretary of State for Work and Pensions [2015] EWHC 1607 (Admin) [2015] ACD 118���������������������������������������� 57.3.12 R (C) v Secretary of State for Work and Pensions [2017] UKSC 72 [2017] 1 WLR 4127������������������������������� 2.1.13, 5.2.9, 22.1.30, 55.2.2, 55.2.4, 59.6.8 R (C) v Stratford Magistrates’ Court [2012] EWHC 154 (Admin)�������������������������������������������������������������������������������������������� 40.2.6 R (C) v Sunderland Youth Court [2003] EWHC 2385 (Admin)����������������������������������������������������������������������������������������������� 55.3.16 R (Caetano) v Metropolitan Police Commissioner [2013] EWHC 375 (Admin) [2013] ACD 60��������������������������������� 32.3.7, 51.2.1 R (Caine) v Department for Work and Pensions [2020] EWHC 2482 (Admin)���������������������������������������������������������� 57.1.9, 58.3.22 R (Cairns) v Hertfordshire County Council [2018] EWHC 1050 (Admin) [2019] Env LR 6��������������������������������������������������� 4.1.19 R (Cala Homes (South) Ltd) v Secretary of State for Communities & Local Government [2010] EWHC 2866 (Admin) [2011] LGR 204���������������������������������������������������������������������������������������������������������������������� 53.1.9 R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 3278 (Admin)���������������������������������������������������������������������������������������������������������������������� 20.1.14, 20.1.24, 20.2.2 R (Calor Gas Ltd) v Norfolk County Council [2019] EWHC 308 (Admin)������������������������������������������������������������������������������ 53.1.8 R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin) [2013] PTSR 378������������� 7.6.17, 35.2.16, 35.3.4, 58.4.5 R (Cameron) v HMRC [2012] EWHC 1174 (Admin)���������������������������������������������������������������������������������������������������������������� 54.2.5 R (Campaign Against Antisemitism) v DPP [2019] EWHC 9 (Admin) [2019] ACD 36����������������������������������������������� 32.3.4, 64.4.7 R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765������������������������������������������������������������������������������������������������ 1.2.2, 5.2.4, 5.4.9, 6.3.7, 7.2.5, 15.4.1, 22.2.18, 22.4.22, 23.3.14, 51.1.1, 51.1.3–4, 57.4.1, 57.4.4 R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2712 (Admin)������������������������������������������������������ 19.2.18 R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2759 (Admin) [2003] 3 LRC 335�������������������������������������������������������������������������������������������������������������������������� 16.3.7, 24.2.12, 24.2.14, 34.4.15 R (Campaign to End All Animal Experiments) v SSHD [2008] EWCA Civ 417���������������������������������������������������������������������� 13.4.6 R (Campaign to Protect Rural England – Kent Branch) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 [2020] 1 WLR 352����������������������������������������������������������� 18.2.2, 18.3.7, 18.4.17 R (Campbell) v General Medical Council [2005] EWCA Civ 250 [2005] 1 WLR 3488��������������������������������������������� 32.3.17, 56.1.3 R (Candlish) v Hastings Borough Council [2005] EWHC 1539 (Admin) [2006] Env LR 278��������������������������������� 19.1.10, 21.1.28 R (Capenhurst) v Leicester City Council [2004] EWHC 2124 (Admin) (2004) 7 CCLR 557������������������������������������ 62.2.10, 62.3.6 R (Capewell) v Stoke on Trent County Court [2011] EWHC 3851 (Admin)��������������������������������������������������������������������������� 32.3.20

862

TABLE OF CASES R (Capital Care Services (UK) Ltd) v SSHD [2012] EWCA Civ 1151��������������������������������������������� 40.2.7, 40.2.12, 54.1.21, 54.2.7 R (Cardin) v Birmingham Crown Court [2017] EWHC 2101 (Admin) [2018] 1 Cr App R 3��������������������������������������������������� 61.4.3 R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945������������������������������������������������������������� 1.1.1, 10.1.4, 13.1.5–6, 13.4.6, 14.1.2, 15.1.3, 17.3.11, 31.2.4, 34.4.10, 37.1.5, 58.1.2, 58.2.3, 58.5.1, 59.7.3 R (Carlton-Conway) v London Borough of Harrow [2002] EWCA Civ 927 [2002] 3 PLR 77����������������������������������� 24.3.11, 36.4.7 R (Carnell) v Regents Park College [2008] EWHC 739 (Admin)�������������������������������������������������������������������������������������������� 36.3.17 R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339���������������������������������������� 3.1.2, 3.1.17, 4.5.8, 4.5.10, 5.4.6–7, 10.1.7, 10.1.11, 19.3.8, 64.4.4, 64.4.11, 64.4.15 R (Carroll) v South Somerset District Council [2008] EWHC 104 (Admin)����������������������������������������������������������������������������� 2.1.32 R (Carson) v Secretary of State for Work and Pensions [2003] EWCA Civ 797 [2003] 3 All ER 577����������������������� 34.4.17, 45.2.8 R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 [2006] 1 AC 173�������������� 58.5.3, 58.5.5, 59.8.7, 59.8.19 R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin) [2011] QB 120��������������������������������������������� 1.3.7, 12.3.2, 33.2.25, 34.1.3 R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663������������������������������������������������ 1.1.1, 1.2.2, 1.3.3, 1.3.5, 1.3.7, 1.3.13, 2.3.1, 7.2.1, 10.1.4, 14.3.3, 28.1.8, 28.1.17, 31.2.6, 32.3.19, 33.2.1, 33.2.25, 33.2.28, 34.4.1, 36.3.2, 36.3.5, 36.3.20, 47.1.1, 47.1.26, 48.2.4 R (Carter) v Chelmsford Crown Court [2019] EWHC 1484 (Admin)������������������������������������������������������������������������� 3.2.15, 21.5.30 R (Carton) v Coventry City Council (2001) 4 CCLR 41���������������������������������������������������������������������������������������������������������� 62.3.11 R (Carvill) v Commissioners of Inland Revenue [2002] EWHC 1488 (Ch) [2002] STC 1167����������������������������������� 3.2.20, 22.4.18 R (Carvill) v Commissioners of Inland Revenue [2003] EWHC 1852 (Admin)��������������������������������������������������������������������� 55.3.16 R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin)��������������������������������������������������������������������������������� 20.1.21 R (Cash) v Northamptonshire Coroner [2007] EWHC 1354 (Admin) [2007] 4 All ER 903����������������������������������������������������� 64.2.3 R (Castle) v Metropolitan Police Commissioner [2011] EWHC 2317 (Admin) [2012] 1 All ER 953������������������������ 26.3.19, 56.3.6 R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland [2015] UKSC 9 [2015] AC 1065������������������������������������������������������������������������������������������������������������ 5.4.11, 6.1.8, 6.2.2, 59.1.5, 59.6.8 R (Certain Underwriters at Lloyds London) v HM Treasury [2020] EWHC 2189 (Admin)������������������������� 19.2.23, 22.2.29, 39.2.2 R (Champion) v North Norfolk District Council [2015] UKSC 52 [2015] 1 WLR 3710���������������������������������� 4.2.2, 21.2.22, 24.3.5 R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011 [2010] LGR 1����������������������������������������������������������������������������������������� 34.5.4, 38.1.6, 38.2.15, 38.2.19, 38.2.23, 38.3.6 R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin)����������������������������������������������������������������������������������������������� 16.3.7, 17.5.7, 17.5.10, 17.6.2, 21.4.1, 21.4.4, 21.4.10, 21.5.14–15 R (Charlesworth) v Crossrail Ltd [2019] EWCA Civ 1118���������������������������������������������������������������������������������� 6.1.3, 34.1.1, 34.5.7 R (Charlton) v Secretary of State for Education and Skills [2005] EWHC 1378 (Admin) [2005] 2 FCR 603������������ 17.5.10, 54.2.7 R (Chaston) v Devon County Council [2007] EWHC 1209 (Admin)�������������������������������������������������������������������������������������� 31.3.10 R (Chaudhry) v SSHD [2018] EWHC 3887 (Admin)�������������������������������������������������������������������������������������������������������������� 36.3.17 R (Chelfat) v Tower Hamlets LBC [2006] EWHC 303 (Admin)����������������������������������������������������������������������������������������������� 31.3.6 R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin) [2004] 4 PLR 95�������������������������������������������������������������������������������������������������������������������������������� 36.2.2, 36.3.3, 36.3.33, 49.4.6 R (Cherwell District Council) v First Secretary of State [2004] EWCA Civ 1420 [2005] 1 WLR 1128����������������������� 13.2.4, 48.1.7 R (Chester) v Governor of Wakefield Prison [2000] EWHC 63 (Admin)������������������������������������������������������������������������ 7.5.3, 35.4.4 R (Chester) v Secretary of State for Justice [2010] EWCA Civ 1439 [2011] 1 WLR 1436 [2013] UKSC 63 [2014] AC 271������������������������������������������������������������������������������������������������������������������������������ 6.3.16, 7.1.3, 7.1.12, 7.2.5, 9.2.4, 9.2.15, 12.3.2, 24.2.12, 59.10.7 R (Chichvarkin) v SSHD [2011] EWCA Civ 91������������������������������������������������������������������������������������������������������������������������ 56.1.7 R (Chidlow) v HM Senior Coroner for Blackpool and Fylde [2019] EWHC 581 (Admin)������������������������������������������������������ 48.1.9 R (Chief Constable of Avon and Somerset) v Police Medical Appeal Board [2019] EWHC 557 (Admin)������������������ 24.4.3, 48.1.9 R (Chief Constable of British Transport Police) v Police Appeals Tribunal [2019] EWHC 73 (Admin)���������������������� 4.1.20, 57.4.4 R (Chief Constable of Dyfed Powys Police) v Police Misconduct Tribunal [2020] EWHC 2032 (Admin)���������������� 57.4.3, 64.3.14 R (Chief Constable of Lancashire) v Preston Crown Court [2001] EWHC Admin 928 [2002] 1 WLR 1332������������������������� 12.2.11 R (Chief Constable of Northumbria Police) v Police Misconduct Panel [2018] EWHC 3533 (Admin)����������������������� 4.1.20, 57.4.5 R (Chief Constable of Northumbria) v Independent Office for Police Conduct [2019] EWHC 3169 (Admin)������������������������ 57.4.4 R (Chief Constable of Northumbria) v Police Appeals Tribunal [2019] EWHC 3352 (Admin)����������������������������������� 24.4.3, 26.3.5, 26.3.16, 57.4.4, 64.3.4 R (Chief Constable of Nottinghamshire Police) v Nottingham Magistrates’ Court [2009] EWHC 3182 (Admin) [2010] 2 All ER 342������������������������������������������������������������������������������������������������ 32.3.16, 61.7.10 R (Chief Constable of South Yorkshire Police) v Crown Court at Sheffield [2020] EWHC 210 (Admin)������������������������������ 21.5.13 R (Chief Constable of Thames Valley Police) v Police Misconduct Panel [2017] EWHC 923 (Admin)���������������������������������� 2.1.32 R (Chief Constable of West Midlands Police) v Panel Chair, Police Misconduct Panel [2020] EWHC 1400 (Admin) [2020] ACD 88���������������������������������������������������������������������������������������������������� 2.6.4, 6.2.7, 57.4.3 R (Chief Constable of West Yorkshire) v Independent Police Complaints Commission [2014] EWCA Civ 1367 [2015] PTSR 72������������������������������������������������������������������������������������������������������������������������������� 46.1.5 R (Chief Executive of the Independent Police Complaints Commission) v Independent Police Complaints Commission [2016] EWHC 2993 (Admin) [2017] ACD 7����������������� 2.1.32, 4.4.6, 22.2.17, 22.4.21, 48.1.10, 51.2.2 R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54 [2011] 2 AC 15���������������������������������������������������������������������������������������������������������������������������������������� 5.2.5, 7.4.7, 24.2.9, 35.4.5 R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2012] EWHC 2579 (Admin) [2012] ACD 109������������������������������������������������������������������������������������������������������������������������������������������������������������ 7.1.8, 61.4.3

863

TABLE OF CASES R (Children’s Rights Alliance for England) v Secretary of State for Justice [2013] EWCA Civ 34 [2013] 1 WLR 3667����������������������������������������������������������������������������������������������������������������������������������������������������� 38.4.5, 38.4.9 R (Chisnell) v Richmond Upon Thames LBC [2005] EWHC 134 (Admin)������������������������������������������������������������������������������ 64.1.9 R (Christchurch Borough Council) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 2126 (Admin) [2019] PTSR 598����������������������������������������������������������������������������������������������������������� 4.6.2, 26.2.9 R (Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC 1546 (Admin) [2020] ACD 84���������������������������������������������������������������������������������������������������������� 5.2.13, 13.4.4, 15.3.1, 18.3.6, 21.4.4, 29.4.13 R (Cielecki) v SSHD [2017] EWHC 3298 (Admin) [2018] 4 WLR 9��������������������������������������������������������������������������� 8.1.6, 46.1.19 R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123�������������������������������� 7.7.5, 10.1.1, 10.4.4–5, 10.4.13, 16.5.1, 24.2.9, 31.1.4, 32.5.2, 36.4.2, 36.4.9, 38.4.5, 61.1.4, 61.1.28, 61.3.1–2 R (City Banking College Ltd) v SSHD [2012] EWHC 24 July 2012�������������������������������������������������������������������������������������� 20.1.24 R (City of Westminster) v Transport for London [2018] EWHC 2402 (Admin) [2018] ACD 129���������������������������� 56.1.2, 64.4.6–7 R (City Shoes (Wholesale) Ltd) v HMRC [2018] EWCA Civ 315������������������������������������������������������������������������������������ 54.1.11–12 R (Cityfibre Ltd) v Advertising Standards Authority [2019] EWHC 950 (Admin) [2019] Bus LR 1777��������������������������������� 34.1.1 R (Cityhook Ltd) v Office of Fair Trading [2009] EWHC 57 (Admin)����������������������������������������������������������������������� 19.2.26, 39.2.4 R (CJ) v Cardiff City Council [2011] EWCA Civ 1590������������������������������������������������������������������������������������������������� 16.2.2, 42.1.4 R (CK (Theydon Bois) Ltd) v Epping Forest District Council [2018] EWHC 1649 (Admin) [2019] PTSR 183������������������� 28.1.18 R (Clarke) v Holliday [2019] EWHC 3596 (Admin) [2020] ACD 33������������������������������������������������������������� 21.4.2, 21.5.22, 34.1.1 R (Clarke) v Ministry of Justice [2010] EWHC 3482 (Admin)��������������������������������������������������������������������������������� 17.2.10, 65.1.15 R (Cleansing Service Group Ltd) v Environment Agency [2019] EWCA Civ 157 [2019] Env LR 24����������������������������������� 23.1.17 R (Clear Channel UK Ltd) v Hammersmith & Fulham LBC [2009] EWCA Civ 2142������������������������������������������������������������� 49.2.4 R (Cleary) v HMRC [2008] EWHC 1987 (Admin)�������������������������������������������������������������������������������������������������������������������� 64.5.2 R (Cleeland) v Criminal Cases Review Commission [2009] EWHC 474 (Admin)����������������������������������������������������������������� 21.1.21 R (Cleeland) v Criminal Cases Review Commission [2019] EWHC 1175 (Admin)������������������������������������� 21.1.23, 21.2.2, 22.1.24 R (Clientearth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin)����������������������������������������������������������������������������������������������������������������� 2.4.1, 4.2.2, 4.2.5, 29.5.10, 55.3.14, 56.1.12, 56.2.3 R (Clientearth) v Secretary of State for Environment, Food and Rural Affairs (No.3) [2018] EWHC 315 (Admin) [2018] Env LR 525������������������������������������������������������������������������������������������������������������������ 46.1.19 R (ClientEarth) v Secretary of State for Environment, Food and Rural Affairs (No.3) [2018] EWHC 398 (Admin)������������� 24.4.27 R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28 [2015] PTSR 909����������������������������������������������������������������������������������������������������������������������������������������� 10.1.16, 24.4.8, 24.4.27 R (Clift) v SSHD [2006] UKHL 54 [2007] 1 AC 484������������������������������������������������������������������������������������������������ 12.2.11, 59.8.19 R (Clue) v Birmingham City Council [2010] EWCA Civ 460 [2011] 1 WLR 99������������������������������������������������������ 24.2.12, 56.1.11 R (Cockburn) v Secretary of State for Health [2011] EWHC 2095 (Admin)������������������������������������������������������������������������������� 9.4.8 R (Coghlan) v Chief Constable of Greater Manchester Police [2004] EWHC 2801 (Admin) [2005] 2 All ER 890�������������������������������������������������������������������������������������������������������������������������������������������������� 6.2.11, 56.2.10 R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1 [2011] 2 AC 146������������������� 54.1.21 R (Coleman) v Governor of Wayland Prison [2009] EWHC 1005 (Admin)���������������������������������������������������������������������������� 46.1.16 R (Cole-Njie) v Methodist Church [2018] EWHC 2622 (Admin)��������������������������������������������������������������������������������������������� 34.1.2 R (Coll) v Secretary of State for Justice [2017] UKSC 40 [2017] 1 WLR 2093�������������������������������� 2.1.13, 24.2.8, 31.2.6, 37.1.20, 55.2.2, 55.2.11, 58.4.6, 59.8.14 R (Collaku) v SSHD [2005] EWHC 2855 (Admin)��������������������������������������������������������������������������������������������������������������������� 6.2.3 R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) [2016] QB 862����������������������������������������������� 27.4.5, 59.2.2 R (Commissioner of Police for the Metropolis) v Police Medical Appeal Board [2020] EWHC 345 (Admin)�������������������������������������������������������������������������������������������������������������������������� 18.2.8, 22.1.26, 24.4.3 R (Commissioner of Police of the Metropolis) v Independent Police Complaints Commission [2015] EWCA Civ 1248 [2016] PTSR 891��������������������������������������������������������������������������������������������������� 3.2.25, 4.5.10, 47.1.15 R (Commissioners of Inland Revenue) v Kingston Crown Court [2001] EWHC Admin 581 [2001] 4 All ER 721��������������� 32.2.13 R (Community Pharmacies (UK) Ltd) v NHS Litigation Authority [2016] EWHC 1595 (QB) [2016] PTSR 1402����������������������������������������������������������������������������������������������������������������������������������������������������� 24.3.13, 31.3.6 R (Comninos) v Bedford Borough Council [2003] EWHC 121 (Admin) [2003] LGR 271������������������������������������������������������ 26.4.2 R (Compassion in World Farming) v Secretary of State for the Environment Food and Rural Affairs [2004] EWCA Civ 1009���������������������������������������������������������������������������������������������������������������������������������������������������������� 32.3.6 R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749 [2009] 1 WLR 1436����������������������������������������������������� 18.4.3 R (Compton) v Wiltshire Primary Care Trust [2009] EWHC 1824 (Admin)����������������������������������������������������������������������������� 65.1.9 R (Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910 [2012] PTSR 460��������������������������������������������� 5.3.2 R (Condron) v Merthyr Tydfil County Borough Council [2009] EWHC 1621 (Admin)����������������������������������������������������������� 22.4.4 R (Connolly) v Secretary of State for Communities and Local Government [2009] EWCA Civ 1059 [2010] 2 P & CR 1������������������������������������������������������������������������������������������������������������������������������������������������������������������� 49.3.3 R (Connor) v Secretary of State for Work and Pensions [2020] EWHC 1999 (Admin)�������������������������������������������� 26.2.12, 59.5.14 R (Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 [2020] QB 1��������������������������������������� 14.1.5, 22.2.10, 23.3.9, 31.2.3, 37.1.5, 58.5.12 R (Corby District Council) v Secretary of State for Communities and Local Government [2007] EWHC 1873 (Admin) [2008] LGR 109���������������������������������������������������������������������������������������������������������� 41.2.5, 54.2.5 R (Cordant Group Plc) v Secretary of State for Business, Innovation & Skills [2010] EWHC 3442 (Admin)������������������������� 15.1.4 R (Corkteck Ltd) v HMRC [2009] EWHC 785 (Admin)����������������������������������������������������������������������������������������������������������� 17.4.9 R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 71 (Admin)�������������������������������������������� 17.5.11

864

TABLE OF CASES R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 246 (Admin)������������������� 2.1.16, 2.1.27, 22.1.5, 22.2.22, 22.2.25, 24.2.7 R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 714 (Admin) [2009] AC 756������������������������������������������������������������������������������������������������������������������������������������������������� 17.3.9, 18.4.5, 50.2.3 R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756�������������� 1.2.2, 6.3.13, 13.4.4, 15.3.1, 31.2.7, 32.3.14, 39.1.2, 45.1.5, 50.1.2, 56.2.3, 57.1.9, 58.3.25 R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 [2005] 1 WLR 2600��������������������������������������������������������������������������������������������������������������� 1.2.8, 18.4.1, 18.4.3, 22.2.27, 33.2.22 R (Corner) v Southend Crown Court [2005] EWHC 2334 (Admin)������������������������������������������������������������������������������������������ 24.4.5 R (Cornerstone (North East) Adoption and Fostering Service Ltd) v Office for Standards in Education, Children’s Services and Skills [2020] EWHC 1679 (Admin)���������������������������������������������������������� 9.4.3–4, 22.1.37 R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46 [2016] AC 137��������������������������������������������� 23.3.6, 30.1.12 R (Cornwall Waste Forum St Dennis Branch) v Secretary of State for Communities and Local Government [2012] EWCA Civ 379������������������������������������������������������������������������������������������������� 4.2.1, 30.1.12, 40.1.4, 61.1.21 R (Corporation of London) v Secretary of State for Environment, Food and Rural Affairs [2004] EWCA Civ 1765 [2005] 1 WLR 1286 [2006] UKHL 30 [2006] 1 WLR 1721�������������������������������������������������������� 36.3.32 R (Corporation of London) v Secretary of State for Environment, Food and Rural Affairs [2006] UKHL 30 [2006] 1 WLR 1721���������������������������������������������������������������������������������������������������������������������������������� 46.1.15 R (Cotter) v National Institute for Health and Care Excellence [2020] EWCA Civ 1037��������������������������������������������� 16.4.7, 29.5.9 R (Coughlan) v Minister for the Cabinet Office [2019] EWHC 641 (Admin) [2019] 1 WLR 3851��������������������������������������� 26.2.12 R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 [2020] 1 WLR 3300��������������������������� 7.4.8, 7.6.21, 29.1.2, 29.1.6, 53.1.9 R (Coulter) v Independent Press Standards Organisation CIC [2018] EWHC 1017 (Admin)��������������������������������������� 34.1.6, 34.2.2 R (Countryside Alliance) v Attorney General [2005] EWHC 167 (Admin) [2006] UKHRR 73��������������������������������������������� 22.2.20 R (Countryside Alliance) v Attorney General [2006] EWCA Civ 817 [2007] QB 305 (CA)�������������������������������������� 11.1.16, 38.4.6 R (Countryside Alliance) v Attorney General [2007] UKHL 52 [2008] 1 AC 719��������������������������������� 8.1.9, 12.3.3, 58.5.3, 58.5.5, 58.5.15, 59.6.10, 59.9.4, 59.10.4 R (Couronne) v Crawley Borough Council [2007] EWCA Civ 1086 [2008] 1 WLR 2762����������������������������������������� 4.5.10, 22.4.21 R (Coventry Gliding Club Ltd) v Harborough District Council [2019] EWHC 3059 (Admin)���������������������������������� 17.3.15, 19.2.8, 49.2.4, 56.2.7, 61.4.2 R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935 [2002] 1 WLR 803�������������������������������� 2.1.9, 10.1.4, 10.2.6, 26.3.10, 36.3.5, 36.3.23, 36.3.30 R (CP) v North East Lincolnshire Council [2019] EWCA Civ 1614 [2020] PTSR 664�������������������������������������������� 25.1.10, 48.1.13 R (CP (Vietnam)) v SSHD [2018] EWHC 2122 (Admin) [2018] ACD 114���������������������������������������������������������������� 51.1.10, 57.4.5 R (CPRE Kent) v Dover District Council [2017] UKSC 79 [2018] 1 WLR 108����������������������������� 61.3.3, 64.2.20, 64.3.2, 64.5.2–3 R (CPS) v Bolton Crown Court [2012] EWHC 3570 (Admin) [2013] 1 WLR 1880�������������������������������������������������������������� 32.2.13 R (CPS) v Bolton Magistrates’ Court [2003] EWHC 2697 (Admin) [2004] 1 WLR 835���������������������������������������������������������� 31.3.6 R (CPS) v Bow Street Magistrates Court [2006] EWHC 1763 (Admin) [2007] 1 WLR 291���������������������������������������������������� 29.1.8 R (CPS) v City of London Magistrates’ Court [2007] EWHC 1924 (Admin)������������������������������������������������������������������������� 26.1.19 R (CPS) v Guildford Crown Court [2007] EWHC 1798 (Admin) [2007] 1 WLR 2886���������������������������������������������� 32.2.6, 32.2.12 R (CPS) v Newcastle upon Tyne Youth Court [2010] EWHC 2773 (Admin)���������������������������������������������������������������������������� 26.2.6 R (CPS) v Norwich Magistrates Court [2011] EWHC 82 (Admin)����������������������������������������������������������������������������������������� 32.3.17 R (CPS) v Reading and West Berkshire Magistrates’ Court [2010] EWHC 3260 (Admin)������������������������������������������������������� 31.2.4 R (CPS) v Registrar General of Births, Deaths and Marriages [2002] EWCA Civ 1661 [2003] QB 1222������������������������������� 26.1.9 R (Crematoria Management Ltd) v Welwyn Hatfield Borough Council [2018] EWHC 382 (Admin) [2018] PTSR 1310����������������������������������������������������������������������������������������������������������������������������������������������������� 16.4.7, 65.1.11 R (Crompton) v South Yorkshire Police and Crime Commissioner 1st March 2017 unrep������������������������������������������������������� 22.2.4 R (Crompton) v South Yorkshire Police and Crime Commissioner [2017] EWHC 1349 (Admin) [2018] 1 WLR 131��������������������������������������������������������������������������������������������������������������������������� 26.2.11, 26.3.9, 55.3.6, 57.1.14 R (Cronin) v Sheffield Magistrates’ Court [2002] EWHC 2568 (Admin) [2003] 1 WLR 752���������������������������������������������������� 4.5.5 R (Crouch) v South Birmingham Primary Care Trust [2008] EWHC 605 (Admin)������������������������������������������������������ 17.1.5, 34.5.2 R Cruickshank Ltd v Chief Constable of Kent County Constabulary [2002] EWCA Civ 1840���������������������������������� 25.2.6, 25.2.15 R (Cukurova Financial International Ltd) v HM Treasury [2008] EWHC 2567 (Admin)������������������������������������������������������� 26.2.12 R (Cullen) v Parole Board [2019] EWHC 2703 (Admin) [2019] ACD 124�������������������������������������������������������������� 55.1.25, 55.3.14 R (Cunningham) v Exeter Crown Court [2003] EWHC 184 (Admin)��������������������������������������������������������������������������������������� 24.4.4 R (Cunningham) v Hertfordshire County Council [2016] EWCA Civ 1108 [2017] 1 WLR 2153�������������������������������������������� 16.1.3 R (Cushnie) v Secretary of State for Health [2014] EWHC 3626 (Admin) [2015] PTSR 384������������������������������������ 55.2.11, 56.2.8 R (Customs and Excise Commissioners) v Canterbury Crown Court [2002] EWHC 2584 (Admin)������������������������ 24.2.13, 32.2.13 R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852 [2019] 1 WLR 1862��������������������������������� 3.1.18, 29.1.4, 29.3.1, 29.3.22, 29.3.24 R (D) v Camberwell Green Youth Court [2005] UKHL 4 [2005] 1 WLR 393�������������������������������������������������������������������������� 59.5.4 R (D) v DPP [2017] EWHC 1768 (Admin) [2017] ACD 106���������������������������������������������������������������������������������������� 21.5.1, 32.3.4 R (D) v Independent Appeal Panel of Bromley LBC [2007] EWCA Civ 1010 [2008] LGR 267���������������������������������������������� 61.6.7 R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285������������������������������������������������ 2.6.4, 5.2.3, 5.3.1, 7.4.7, 10.1.15, 13.4.5, 16.3.6, 17.2.6, 20.1.14, 21.5.16, 22.4.21, 26.2.12–13, 31.1.5, 35.1.7, 35.2.11, 35.4.5, 38.1.5, 38.2.5, 38.2.22, 38.3.4, 49.3.6, 51.1.10, 51.2.2, 56.2.7, 57.2.5

865

TABLE OF CASES R (D) v Secretary of State for Health [2006] EWCA Civ 989�������������������������������������������������������������������������������������� 32.4.5, 32.4.12 R (D) v Secretary of State for Justice [2010] EWCA Civ 18 [2010] 1 WLR 1782���������������������������������������������������������������������� 7.4.6 R (D) v SSHD [2002] EWHC 2805 (Admin) [2003] 1 WLR 1315����������������������������������������������������������������������������������������� 12.2.11 R (D) v SSHD [2003] EWHC 155 (Admin) [2003] 1 FLR 979��������������������������������������������������������������������� 24.4.25, 56.1.13, 61.5.6 R (D) v SSHD [2004] EWHC 2857 (Admin)��������������������������������������������������������������������������������������������������������������������������� 57.3.12 R (D) v SSHD [2006] EWHC 980 (Admin)������������������������������������������������������������������������������������������������������������������� 9.4.4, 46.1.16 R (D2M Solutions Ltd) v Secretary of State for Communities and Local Government [2017] EWHC 3409 (Admin) [2018] PTSR 1125���������������������������������������������������������������������������������������������������� 13.4.4, 25.1.11, 29.5.7 R (Da Silva) v DPP [2006] EWHC 3204 (Admin)������������������������������������������������������������������������������������������������������� 17.5.10, 32.3.6 R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21 [2019] 1 WLR 3289������������������������������ 5.2.3, 6.3.11, 29.4.7, 37.1.20, 59.8.4, 59.8.15 R (Dabrowski) v SSHD [2003] EWCA Civ 580 [2003] Imm AR 454��������������������������������������������������������������������������������������� 6.2.12 R (Dalton) v CPS [2020] EWHC 2013 (Admin)������������������������������������������������������������������������������������������������������ 2.1.1, 5.4.1, 5.4.7 R (Daly) v Commissioner of Police of the Metropolis [2018] EWHC 438 (Admin) [2018] 1 WLR 2221������������� 32.1.11, 49.3.3–4 R (Daniel Johns Manchester Ltd) v Manchester City Council [2018] EWHC 464 (Admin)��������������������������� 17.5.17, 32.1.8, 34.5.7 R (Daniel Thwaites Plc) v Wirral Borough Magistrates Court [2008] EWHC 838 (Admin) [2009] 1 All ER 238������������������� 49.4.6 R (Dart Harbour and Navigation Authority) v Secretary of State for Transport, Local Government and the Regions [2003] EWHC 1494 (Admin)��������������������������������������������������������������������������������������������������������������������� 57.1.16 R (Das) v SSHD [2014] EWCA Civ 45 [2014] 1 WLR 3538���������������������������������������������������������������������������������������������������� 42.2.4 R (Davenport) v Parole Board [2018] EWHC 410 (Admin) [2018] 1 WLR 2003��������������������������������������������������������������������� 22.2.2 R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166 [2008] 1 WLR 878����������������������������� 18.1.4, 18.3.3, 18.3.5, 18.3.9, 18.4.2, 19.3.10, 21.2.5 R (Davey) v Oxfordshire County Council [2017] EWCA Civ 1308 [2018] PTSR 281��������������������������������������������� 13.5.17, 17.2.19 R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207 [2004] 1 WLR 2739������������������������������������������������������ 18.1.15 R (Davies) v HMRC [2008] EWCA Civ 933������������������������������������������������������������������������������������������������� 17.3.5, 22.1.29, 36.3.16 R (Davies) v HMRC [2011] UKSC 47 [2011] 1 WLR 2625���������������������������������������� 16.4.3, 23.1.17, 41.2.2, 41.2.5, 41.2.9, 54.2.5 R (Davies) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC 2762 (Admin)���������������������������������������������������������������������������������������������������������������������� 18.2.16, 22.1.15, 38.1.7 R (Davis) v Watford Borough Council [2018] EWCA Civ 529 [2018] 1 WLR 3157�������������������������� 4.5.10, 23.1.17, 29.1.7, 36.1.1 R (Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin)������������������������������� 2.6.2, 4.1.16, 44.3.5, 55.1.5, 55.1.18 R (Day) v Shropshire Council [2019] EWHC 3539 (Admin)�������������������������������������������������������������������������������������� 4.1.19, 51.1.10 R (de Silva) v HMRC [2017] UKSC 74 [2017] 1 WLR 4384������������������������������������������������������������������������������������������������������ 5.1.2 R (Dean) v Secretary of State for Business, Energy and Industrial Strategy [2017] EWHC 1998 (Admin) [2017] 4 WLR 158������������������������������������������������������������������������������������������������������������������������������������������������������������������� 34.5.7 R (Deepdock Ltd) v Welsh Ministers [2007] EWHC 3346 (Admin)����������������������������������������������������������������������������������������� 22.4.4 R (DEF Ltd) v HMRC [2019] EWHC 600 (Admin)���������������������������������������������������������������������������������������������������������������� 20.1.16 R (Defending Christian Arabs) v Guildford Magistrates’ Court [2020] EWHC 1850 (Admin)���������������������������������������������� 21.2.29 R (Degainis) v Secretary of State for Justice [2010] EWHC 137 (Admin)���������������������������������������������������������������������������������� 9.5.5 R (Delaney) v Parole Board [2019] EWHC 779 (Admin)���������������������������������������������������������������������������������������������������������� 49.3.8 R (Delta Merseyside Ltd) v Knowsley MBC [2018] EWHC 757 (Admin)��������������������������������������������������������������������� 5.2.9, 13.3.2 R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199������������������������������������ 23.3.8, 26.1.13, 26.1.17–18, 26.2.12, 26.2.19, 59.8.15, 61.3.7 R (Dennis) v DPP [2006] EWHC 3211 (Admin)������������������������������������������������������������������������������������������������������������������������ 32.3.6 R (Dennison) v Bradford Districts Clinical Commissioning Group [2014] EWHC 2552 (Admin)���������������������������������������� 36.3.16 R (Deputy Chief Constable of Kent Police) v Chief Constable of Kent Police [2020] EWHC 2099 (Admin)������������������������������������������������������������������������������������������������������������������������ 21.4.4, 26.3.17, 57.4.3 R (Derry) v HMRC [2019] UKSC 19 [2019] 1 WLR 2754��������������������������������������������������������������������������������������������������������� 5.1.1 R (Detention Action) v First-tier Tribunal [2015] EWCA Civ 840 [2015] 1 WLR 5341������������������� 16.5.3, 24.4.16, 32.4.15, 32.5.2 R (Detention Action) v SSHD [2020] EWHC 732 (Admin)������������������������������������������������������������������������������������������ 3.1.10, 20.2.8 R (Deutsch) v Hackney LBC [2003] EWHC 2692������������������������������������������������������������������������������������������������������� 17.5.17, 28.2.4 R (Developing Retail Ltd) v South East Hampshire Magistrates’ Court [2011] EWHC 618 (Admin)�������������������������������������� 55.1.6 R (Devon County Council) v Secretary of State for Communities and Local Government [2010] EWHC 1456 (Admin) [2011] LGR 64���������������������������������������������������������������������������������������������������������� 62.3.6, 62.3.11 R (Devon County Council) v Secretary of State for Communities and Local Government (No.2) [2010] EWHC 1847 (Admin)������������������������������������������������������������������������������������������������������������������������������������ 24.4.18, 43.1.7 R (DF) v Chief Constable of Norfolk Police [2002] EWHC 1738 (Admin)������������������������������������������������������������������������������ 51.1.1 R (DFS Furniture Co Ltd) v Commissioners of Customs and Excise [2002] EWHC 807 (Admin)������������������������������������������ 54.2.9 R (Dickinson) v HMRC [2018] EWCA Civ 2798 [2019] 4 WLR 22������������������������������������������������� 23.3.3, 23.3.16, 39.2.4, 40.2.3, 50.4.6, 54.1.12, 54.2.5 R (Dimmock) v Secretary of State for Education and Skills [2007] EWHC 2288 (Admin) [2008] 1 All ER 367������������������ 24.3.10 R (Diocese of Menevia) v Swansea City and County Council [2015] EWHC 1436 (Admin) [2015] PTSR 1507����� 55.2.4, 65.1.13 R (Dirshe) v SSHD [2005] EWCA Civ 421����������������������������������������������������������������������������������������������������������������� 32.4.15, 32.5.2 R (DJ) v Welsh Ministers [2019] EWCA Civ 1349 [2020] PTSR 466����������������������� 6.2.2, 29.5.9, 39.2.13, 50.4.6, 50.4.10, 50.4.13 R (DL) v Newham LBC [2011] EWHC 1127 (Admin) [2011] 2 FLR 1033���������������������������������������������������������������� 10.4.7, 20.1.16 R (DL) v Newham LBC (No.2) [2011] EWHC 1890 (Admin) [2012] 1 FLR 1�������������������������������������������������������������������������� 9.5.5 R (DM) v Secretary of State for Home Department [2018] EWHC 4006 (Admin)����������������������������������������������������������������� 20.1.17 R (DN (Rwanda)) v SSHD [2018] EWCA Civ 273 [2019] QB 71 [2020] UKSC 7 [2020] AC 698������������� 2.1.34, 11.1.8, 44.3.3–4 R (Dolan) v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin)������������ 3.2.2, 4.5.7, 5.4.4, 5.4.7–8, 58.1.7 R (Dolatabadi) v Transport for London [2005] EWHC 1942 (Admin)������������������������������������������������������������������������������������ 36.3.19

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TABLE OF CASES R (Douglas) v North Tyneside Metropolitan Borough Council [2003] EWCA Civ 1847 [2004] 1 WLR 2363���������������������� 22.2.17 R (Downs) v Secretary of State for Environment, Food and Rural Affairs [2009] EWCA Civ 257���������������������������������������� 23.2.13 R (Dowsett) v Secretary of State for Justice [2011] EWHC 2877�������������������������������������������������������������������������������������������� 22.4.18 R (DPP) v Aylesbury Crown Court [2017] EWHC 2987 (Admin) [2018] 4 WLR 30��������������������������������������������������������������� 32.2.6 R (DPP) v Birmingham City Justices [2003] EWHC 2352 (Admin)��������������������������������������������������������������������������� 32.3.17, 45.4.2 R (DPP) v Birmingham Magistrates’ Court [2017] EWHC 3444 (Admin) [2018] ACD 17���������������������������������������������������� 32.3.15 R (DPP) v Camberwell Green Youth Court [2003] EWHC 3217 (Admin)���������������������������������������������������������������������������������� 4.5.8 R (DPP) v Camberwell Youth Court [2004] EWHC 1805 (Admin) [2005] 1 WLR 810������������������������������������������� 19.2.25, 36.3.22 R (DPP) v Manchester and Salford Magistrates’ Court [2017] EWHC 3719 (Admin) [2019] 1 WLR 2617�������������� 18.2.7, 32.3.16 R (DPP) v North & East Hertfordshire Justices [2008] EWHC 103 (Admin)������������������������������������������������������������������������� 32.3.17 R (DPP) v Stratford Magistrates’ Court 22nd March 2017 unrep���������������������������������������������������������������������������������������������� 22.1.1 R (DPP) v Stratford Magistrates’ Court [2017] EWHC 1794 (Admin) [2018] 4 WLR 47�������������������������������������������������������� 3.2.15 R (DPP) v Sunderland Magistrates’ Court [2018] EWHC 229 (Admin) [2018] 1 WLR 2195������������������������������������ 32.3.15, 49.3.3 R (DPP) v Walsall Magistrates’ Court [2019] EWHC 3317 (Admin) [2020] ACD 21�������������������� 20.1.14, 22.4.25, 32.3.16, 57.4.4 R (DR) v Head Teacher of St George’s Catholic School [2002] EWCA Civ 1822 [2003] ELR 104��������������������������� 36.3.19, 36.4.3 R (Drain) v Birmingham Crown Court [2018] EWHC 1255 (Admin) [2018] 1 WLR 4865����������������������������������������������������� 31.3.5 R (Drain) v Birmingham Crown Court [2018] EWHC 1605 (Admin)��������������������������������������������������������������������������������������� 18.1.2 R (Draper) v Lincolnshire County Council [2014] EWHC 2388 (Admin) [2015] PTSR 769��������������������������������������������������� 62.3.5 R (Drexler) v Leicestershire County Council [2019] EWHC 1934 (Admin) [2020] EWCA Civ 502����������������������������������������� 4.6.1 R (Drexler) v Leicestershire County Council [2020] EWCA Civ 502��������������������������������������������������������������� 31.2.6–7, 59.8.15–16 R (Drinkwater) v Solihull Magistrates’ Court [2012] EWHC 765 (Admin)���������������������������������������������������������������������������� 61.7.11 R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin)����������������� 4.1.5, 4.1.20, 17.2.4, 22.2.12, 29.1.3, 29.4.1, 42.1.1, 61.4.2 R (Dry) v West Oxfordshire District Council [2010] EWCA Civ 1143 [2011] 1 P & CR 340������������������������������������������������ 64.3.11 R (DS) v SSHD [2019] EWHC 3046 (Admin) [2020] Imm AR 409��������������������������� 5.2.9, 24.4.26, 50.1.2, 50.2.1, 50.3.6, 50.4.14 R (Dudley Metropolitan Borough Council) v Secretary of State for Communities and Local Government [2012] EWHC 1729 (Admin)������������������������������������������������������������������������������������������������������������ 41.1.6, 61.1.14, 62.2.9, 62.3.5 R (Dudson) v SSHD [2005] UKHL 52 [2006] 1 AC 245��������������������������������������������������������������������������������������������������������� 59.5.11 R (Duggan) v Assistant Deputy Coroner for the Northern District of Greater London [2017] EWCA Civ 142 [2017] 1 WLR 2199����������������������������������������������������������������������������������������������������������������������������������������������������� 3.2.2, 65.1.13 R (Dunbar) v Hampshire Fire and Rescue Service [2004] EWHC 431 (Admin)����������������������������������������������������������������������� 34.5.9 R (Durand Academy Trust) v Office for Standards in Education, Children’s Services and Skills [2018] EWCA Civ 2813 [2019] PTSR 1144����������������������������������������������������������������������������������������������������������� 55.1.14, 55.1.16 R (Durham County Council) v North Durham Justices [2004] EWHC 1073 (Admin)������������������������������������������������������������ 36.3.28 R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin)����������������������������������������������������������������� 3.2.24, 26.3.6, 49.4.2 R (E) v Ashworth Hospital Authority [2001] EWHC Admin 1089������������������������������������������������������������������������������������������ 17.3.16 R (E) v Birmingham Magistrates’ Court [2015] EWHC 688 (Admin) [2015] 1 WLR 4771��������������������������������������������������� 36.3.28 R (E) v Governing Body of JFS [2009] UKSC 15 [2010] 2 AC 728���������������������������������������������������� 5.2.9, 6.3.14, 15.1.4, 18.2.13, 34.4.19, 37.1.20, 58.4.3 R (E) v Islington LBC [2017] EWHC 1440 (Admin) [2018] PTSR 349��������������������������������������������������������� 42.1.3, 59.10.6, 64.4.9 R (E) v SSHD [2012] EWHC 1927 (Admin)������������������������������������������������������������������������������������������������������������������������������� 6.3.6 R (EA) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin)������������������������������������ 21.5.1, 26.1.6–7, 26.2.4 R (Ealing LBC) v Audit Commission for England and Wales [2005] EWCA Civ 556 (2005) 8 CCLR 317��������������������������������������������������������������������������������������������������������������������������������������������������� 50.3.5, 50.3.7, 50.4.13 R (East Begholt Parish Council) v Babergh District Council [2019] EWCA Civ 2200������������������������������������� 13.5.3, 16.4.4, 16.4.7 R (East Meon Forge and Cricket Ground Protection Association) v East Hampshire District Council [2014] EWHC 3543 (Admin) [2015] ACD 45���������������������������������������������������������������������������������������������������������������������� 55.3.14 R (Eastenders Cash & Carry Plc) v HMRC [2012] EWCA Civ 15 [2012] 1 WLR 2067 [2014] UKSC 34 [2015] AC 1101����������������������������������������������������������������������������������������������������������������������������������������������� 7.6.19, 35.4.5, 59.1.5 R (Easter) v Mid Suffolk District Council [2019] EWHC 1574 (Admin)���������������������������������������������������������������������������������� 20.2.6 R (Easyjet Airline Co) v Civil Aviation Authority [2009] EWCA Civ 1361������������������������������������������������������������������������������ 31.3.5 R (Eatherley) v Camden LBC [2016] EWHC 3108 (Admin) [2017] PTSR 288����������������������������������������������������������������������� 29.5.8 R (Edison First Power Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 20 [2003] 4 All ER 209�������������������������������������������������������������������������������� 5.2.3, 7.4.7, 29.3.12–13, 35.2.7, 35.4.5 R (Edwards) v Environment Agency [2004] EWHC 736 (Admin) [2004] 3 All ER 21�������������������������������� 31.3.17, 38.2.26, 38.3.5 R (Edwards) v Environment Agency [2006] EWCA Civ 877 [2007] Env LR 126������������������������������������������������������ 23.3.31, 61.6.8 R (Edwards) v Environment Agency [2008] UKHL 22 [2009] 1 All ER 57���������������������������� 4.3.3, 22.4.27, 24.3.3, 24.3.14, 61.4.2 R (Edwards) v Environment Agency [2013] UKSC 78 [2014] 1 WLR 55������������������������������������������������������������������������������ 18.4.17 R (Edwards) v Environment Agency (No.2) [2010] UKSC 57 [2011] 1 WLR 79������������������������������������������������������� 6.3.21, 18.1.33 R (EG) v Parole Board [2020] EWHC 1457 (Admin)�������������������������������������������������� 3.1.7, 22.1.42, 46.1.13, 55.2.5, 61.3.5, 61.7.3 R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438������������������������������������ 26.2.9, 61.2.7, 61.6.7, 62.2.10, 62.3.6 R (EK) v SSHD [2019] EWHC 1696 (Admin) [2019] ACD 87������������������������������������������������������������������������������������� 32.4.7, 57.4.4 R (EL) v Essex County Council [2017] EWHC 1041 (Admin) [2017] PTSR 1000������������������������������������������������������ 21.5.1, 61.6.7 R (Elan-Cane) v SSHD [2020] EWCA Civ 363 [2020] 3 WLR 386�������������������������������������������������������������������������� 18.4.12, 59.6.10 R (Elane-Cane) v SSHD [2018] EWHC 1530 (Admin) [2018] 1 WLR 5119������������������������������������������������������������������������������ 5.2.9 R (Electoral Commission) v City of Westminster Magistrates’ Court [2009] EWHC 78 (Admin)����������������������������������������� 58.3.20 R (Electoral Commission) v Westminster Magistrates’ Court [2010] UKSC 40 [2011] 1 AC 496������������������� 29.1.2, 29.1.5, 29.1.7, 29.3.20, 39.1.5, 39.3.7

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TABLE OF CASES R (Electronic Collar Manufacturers Association) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin) [2020] ACD 4������������������������������������������� 17.1.13, 38.1.7, 57.1.6, 62.1.5, 63.3.4 R (Elgizouli) v SSHD [2020] EWHC 2516 (Admin)��������������������������������������������������������������������������������������� 20.1.24, 21.2.7, 21.4.6 R (Elgizouli) v SSHD [2020] UKSC 10 [2020] 2 WLR 857���������������������������������������������������������� 4.2.2, 7.1.5, 7.6.2, 32.4.5, 33.1.8, 48.1.10, 58.3.11, 58.4.9 R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 [2006] 1 WLR 3213������������������������������������������ 37.1.18, 50.4.8 R (Eliot) v Crown Court at Reading [2001] EWHC Admin 464 [2001] 4 All ER 625�������������������������������������������������� 4.2.4, 32.2.13 R (Elite Mobile Plc) v Customs and Excise Commissioners [2004] EWHC 2923 (Admin)��������������������������������������� 25.1.6, 25.1.10 R (Ellerton) v Secretary of State for Justice [2010] EWCA Civ 906����������������������������������������������������������������������������� 44.1.1, 44.1.5 R (Ellis) v Chief Constable of Essex Police [2003] EWHC 1321 (Admin) [2003] 2 FLR 566����������������������������������������������� 24.2.15 R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) [2019] 1 WLR 1686������������������������ 3.1.17, 4.5.2, 22.3.2, 22.3.4, 24.2.6, 24.2.11, 24.2.13, 24.4.8 R (Elphinstone) v Westminster City Council [2008] EWCA Civ 1069 [2009] ELR 24���������������������������������������������������������� 62.3.11 R (Elvington Park Ltd) v York Crown Court [2011] EWHC 2213 (Admin) [2012] Env LR 267���������������������������������������������� 31.3.9 R (EM (Eritrea) v SSHD [2014] UKSC 12 [2014] AC 1321����������������������������������������������������������������������������������������������������� 59.3.4 R (EM) v SSHD [2018] EWCA Civ 1070 [2018] 1 WLR 4386������������������������������������������������������������������������������������ 6.3.6, 23.1.17 R (Emu) v Westminster Magistrates’ Court [2016] EWHC 2561 (Admin) [2016] ACD 122���������������������������������������������������� 3.2.24 R (English Bridge Union Ltd) v English Sports Council [2015] EWHC 2875 (Admin) [2016] 1 WLR 957���������������� 29.5.8, 34.1.1 R (English Speaking Board (International) Ltd) v SSHD [2011] EWHC 1788 (Admin)�������������������������������������������������������� 24.3.10 R (English) v East Staffordshire Borough Council [2010] EWHC 2744 (Admin)������������������������������������������������������ 31.3.5, 61.6.15 R (Equality and Human Rights Commission) v Prime Minister [2011] EWHC 2401 (Admin) [2012] 1 WLR 1389��������������� 57.3.8 R (Equitable Members Action Group) v HM Treasury [2009] EWHC 2495 (Admin)���������������������������������������������� 29.4.14, 55.3.10 R (ES) v SSHD [2017] EWHC 3224 (Admin) [2018] ACD 20������������������������������������������������������������������������������������������������� 22.1.6 R (Essex County Council) v Secretary of State for Education [2012] EWHC 1460 (Admin)����������������������������������������������������� 2.6.6 R (EU Lotto Ltd) v Secretary of State for Digital Culture Media and Sport [2018] EWHC 3111 (Admin) [2019] 1 CMLR 41����������������������������������������������������������������������������������������������� 8.1.9, 13.5.11, 17.2.17, 31.1.6, 37.1.10, 37.1.14, 37.1.17, 38.3.6, 58.4.4–5, 62.3.11, 64.4.13 R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2003] EWCA Civ 666 [2004] QB 811 (CA)�������������������������������������������������������������������������������������������������������������������������������������������������������������� 41.1.17 R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55 [2005] 2 AC 1���������������������������������������������������������������������������������������������������������������������������������� 5.2.4, 17.3.12, 29.5.4, 59.10.11 R (European Surgeries Ltd) v Cambridgeshire Primary Care Trust [2007] EWHC 2758 (Admin)��������������������������������������������� 4.5.1 R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787������������������������������������������������ 1.1.1, 1.2.2, 1.3.10, 1.3.12, 7.1.10, 29.1.1, 46.2.2, 55.3.4, 55.3.7, 60.1.5 R (Evans) v Chief Constable of Sussex [2011] EWHC 2329 (Admin)�������������������������������������������������������������������������������������� 61.7.6 R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) [2012] 1 WLR 838�������������������� 1.2.18, 2.1.27, 10.1.7, 10.4.9, 10.4.12, 17.3.3, 56.1.4, 62.3.6, 65.1.14 R (Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114�������������������������������������������� 32.4.8 R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin)�������������������������������������������������������������������� 6.2.11, 38.4.3 R (Evans) v University of Cambridge [2002] EWHC 1382 (Admin) [2003] ELR 8������������������������������������������������� 22.4.18, 34.5.10 R (Ewing) v Cardiff and Newport Crown Court [2016] EWHC 183 (Admin)������������������������������������������������������������ 60.1.8, 60.1.12 R (Ewing) v Isleworth Crown Court [2019] EWHC 288 (Admin) [2019] 2 Cr App R 9��������������������������������� 5.3.2, 7.1.11, 18.4.13, 21.5.33, 22.4.21, 58.3.13 R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 [2006] 1 WLR 1260�������������������������������������������������������������������������������������������������������������������� 18.1.33, 18.2.16, 18.3.3–4, 19.1.6, 19.3.10, 19.3.12–13, 21.2.10, 38.2.8 R (Eyers) v Uttlesford District Council [2009] EWHC 672 (Admin)�������������������������������������������������������������������������������������� 22.1.15 R (F (A Child) v SSHD [2010] UKSC 17 [2011] 1 AC 331��������������������������������������� 12.2.11, 17.1.9, 29.4.7, 37.1.11, 59.6.3, 59.6.8 R (F) v CPS [2003] EWHC 3266 (Admin)��������������������������������������������������������������������������������������������������������������������������������� 32.3.5 R (F) v DPP [2013] EWHC 945 (Admin) [2014] QB 581��������������������������������������������������������������������������������������������������������� 32.3.6 R (F) v Enfield LBC [2002] EWHC 432 (Admin) [2002] 2 FLR 1������������������������������������������������������������������������������������������� 12.2.2 R (F) v Head Teacher of Addington High School [2003] EWHC 228 (Admin)������������������������������ 10.3.1, 10.3.10, 18.2.17, 18.3.11 R (Faarah) v Southwark LBC [2008] EWCA Civ 807 [2009] HLR 195�������������������������������������������������������������������������������������� 6.2.3 R (Faisaltex Ltd) v Crown Court at Preston [2008] EWHC 2832 (Admin) [2009] 1 WLR 1687���������������������������������� 17.3.5, 20.1.6 R (Faithfull) v Crown Court at Ipswich [2007] EWHC 2763 (Admin) [2008] 1 WLR 1636���������������������������������� 32.2.6–7, 32.2.12 R (Fana) v Special Adjudicator [2002] EWHC 777 (Admin)��������������������������������������������������������������������������������������������������� 32.3.15 R (Faqiri) v Upper Tribunal [2019] EWCA Civ 151 [2019] 1 WLR 4497���������������������������������������������� 2.3.1, 18.1.3–4, 18.1.15–16, 18.1.24, 18.2.7, 23.3.32 R (Faraday Development Ltd) v West Berkshire Council [2018] EWCA Civ 2532 [2019] PTSR 1346����������������������������������� 34.5.2 R (Farmiloe) v Secretary of State for Business Energy and Industrial Strategy [2019] EWHC 2981 (Admin)������������������������ 39.2.6 R (Farrakhan) v SSHD [2002] EWCA Civ 606 [2002] QB 1391��������������������������������������������������������������������������������� 4.5.10, 64.2.14 R (Faulkner) v Secretary of State for Justice [2011] EWCA Civ 349 [2011] HRLR 489������������������������������������������������������������ 9.5.5 R (Fayad) v SSHD [2018] EWCA Civ 54���������������������������������������������������������������������������� 3.1.8, 19.2.11, 22.4.24, 25.1.1, 25.1.7–8 R (FD) v X Metropolitan Borough Council [2019] EWHC 3481 (Admin)������������������������������������������������������������������������������� 20.2.7 R (FDA) v Minister for the Cabinet Office [2018] EWHC 2746 (Admin)��������������������������������������������������� 17.3.11, 21.4.2, 22.1.18, 61.1.18, 62.2.7, 62.2.10 R (FDA) v Secretary of State for Work and Pensions [2012] EWCA Civ 332 [2013] 1 WLR 444����������������� 13.3.2, 56.1.8, 56.1.11 R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWCA Civ 1546 [2004] 1 WLR 1761��������������������������������������������������������������������������������������������������������������������������������������������������� 38.2.2, 38.2.18

868

TABLE OF CASES R (Federation of Technological Industries) v Commissioners of Customs and Excise [2004] EWHC 254 (Admin)������������������������������������������������������������������������������������������������������������������������������������ 21.2.27, 26.2.19 R (Federation of Tour Operators) v HM Treasury [2007] EWHC 2062 (Admin) [2008] STC 547 [2008] EWCA Civ 752 [2008] STC 2524����������������������������������������������������������������������������������������������������������������������������� 29.4.14 R (Ferguson) v Secretary of State for Justice [2011] EWHC 5 (Admin)����������������������������������������������������������������������������������� 61.6.7 R (Ferriday) v Chief Constable of Gwent [2009] EWHC 2083 (Admin)����������������������������������������������������������������������������������� 13.1.3 R (Festiva Ltd) v Highbury Corner Magistrates’ Court [2011] EWHC 3043 (Admin)���������������������������������������������������������������� 2.6.6 R (FF) v Director of Legal Aid Casework [2020] EWHC 95 (Admin) [2020] 4 WLR 40�������������������������������������������� 16.1.1, 16.1.3 R (FH) v SSHD [2020] EWHC 1482 (Admin)������������������������������������������������������������������������������������������������������������� 36.1.3, 55.1.23 R (Firdaws) v First Tier Tribunal (Immigration and Asylum Chamber) [2019] EWCA Civ 1310 [2020] Imm AR 115��������������������������������������������������������������������������������������������������������������������������������������������������������������� 21.2.23 R (Fire Brigade Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (Admin) [2018] 3 CMLR 27�������������������������������������������������������������������������������������������������� 2.1.34, 24.2.16, 26.2.18, 34.1.1, 34.5.9, 36.3.7 R (First Stop Wholesale Ltd) v HMRC [2012] EWHC 1106 (Admin)�������������������������������������������������������������������������������������� 24.3.2 R (Fisher) v Durham County Council [2020] EWHC 1277 (Admin) [2020] ACD 85�������������������������������� 36.3.13, 36.3.15, 36.3.19, 37.1.8, 42.2.11, 55.2.3 R (FK) v SSHD [2016] EWHC 56 (Admin)������������������������������������������������������������������������������������������������������������������� 32.4.7, 64.3.7 R (Fleurose) v Securities and Futures Authority [2001] EWCA Civ 2015������������������������������������������������������������������� 9.1.16, 59.5.17 R (Flores) v Southwark LBC [2020] EWHC 1279 (Admin)������������������������������������������������������������������������������������������������������ 21.4.4 R (FNM) v DPP [2020] EWHC 870 (Admin) [2020] 2 Cr App R 17������������������ 2.6.2, 2.6.4, 21.4.4, 32.3.4, 61.1.7, 61.1.17, 61.5.6 R (Foley) v SSHD [2019] EWHC 488 (Admin)����������������������������������������������������������������������������������������������������������������������� 50.4.15 R (Ford) v Financial Services Authority [2011] EWHC 2583 (Admin) [2012] 1 All ER 1238����������������������������������������������� 27.2.12 R (Ford) v Leasehold Valuation Tribunal [2005] EWHC 503 (Admin)����������������������������������������������������������������������� 61.1.24, 61.7.9 R (Ford) v Press Complaints Commission [2001] EWHC 683 [2002] EMLR 95������������������������������������������� 26.3.7, 26.3.17, 34.1.6 R (Forge Care Home Ltd) v Cardiff and Vale University Health Board [2017] UKSC 56 [2017] PTSR 1140��������������������������������������������������������������������������������������������������������������������� 2.6.3, 7.4.8, 23.2.10, 29.1.5, 29.4.4 R (Forsey) v Northern Derbyshire Magistrates’ Court [2017] EWHC 1152 (QB) [2017] ICR 1161����������������������������������������� 50.3.2 R (Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin) [2016] PTSR 405������������� 4.6.7, 32.5.5, 48.1.11, 59.10.6 R (Fratila) v Secretary of State for Work and Pensions [2020] EWHC 998 (Admin)�������������������������������������������������������� 8.1.1, 8.1.6 R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWCA Civ 1719 [2019] QB 1075����������������������������������������������������������������������������������������������������������������� 6.3.10, 24.2.15 R (Friedman) v Snaresbrook Crown Court [2019] EWHC 2209 (Admin) [2019] ACD 103����������������������������������������� 3.2.15, 64.5.3 R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWCA Civ 649���������������������������������������������������������������������������������������� 8.1.1, 8.1.10, 18.1.27, 37.1.14, 37.1.21, 57.3.3, 58.4.1, 58.5.1 R (Friends of Hethel Ltd) v South Norfolk District Council [2010] EWCA Civ 894 [2011] 1 WLR 1216������������������������������� 50.3.6 R (Friends of the Earth and Greenpeace) v Secretary of State for Environment Food and Rural Affairs [2001] EWCA Civ 1950���������������������������������������������������������������������������������������������������������������������������������������������� 18.2.5, 18.4.2 R (Friends of the Earth Ltd) v Environment Agency [2003] EWHC 3193 (Admin) [2004] Env LR 615������������������������������� 22.2.17 R (Friends of the Earth) v Environment Agency [2019] EWHC 25 (Admin) [2019] PTSR 1020��������������������������������������������� 13.4.1 R (Friends of the Earth) v Secretary of State for Business Enterprise and Regulatory Reform [2009] EWCA Civ 810 [2010] PTSR 635����������������������������������������������������������������������������������������������������������������������������� 53.1.10 R (Fudge) v South West Strategic Health Authority [2007] EWCA Civ 803����������������������������������������������������������������� 2.1.29, 24.3.3 R (Fuller) v Chief Constable of Dorset Constabulary [2001] EWHC Admin 1057 [2003] QB 480������������������������������������������ 22.2.3 R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748��������������������������������������������� 1.2.4, 2.2.16, 17.3.1, 17.3.6, 17.3.14, 21.2.13, 49.1.1, 49.2.1, 49.2.4, 61.6.11 R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208�������������������������������������������������������������������� 6.1.3, 13.1.1, 29.3.20, 30.1.12, 39.3.3–6, 39.3.13, 55.1.18, 56.1.11 R (G) v Barnet LBC [2005] EWHC 1946 (Admin) [2006] ELR 4���������������������������������������������������������������������������� 20.1.24, 36.3.23 R (G) v Commissioner of Police for the Metropolis [2011] EWHC 3331 (Admin)������������������������������������������������������������������ 65.1.8 R (G) v Governors of X School [2011] UKSC 30 [2012] 2 AC 167������������������������������������������������������������������������������ 36.4.5, 59.5.7 R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731 [2005] 1 WLR 1445������������������������� 28.1.5, 28.1.9, 36.3.5, 36.3.24 R (G) v Immigration Appeal Tribunal [2004] EWHC 588 (Admin) [2004] 1 WLR 2953 [2004] EWCA Civ 1731 [2005] 1 WLR 1445��������������������������������������������������������������������������������������������������������������������������� 7.5.3 R (G) v Legal Services Commission [2004] EWHC 276 (Admin)���������������������������������������������������������������������������������������������� 6.2.4 R (G) v London Borough of Ealing [2002] EWHC 250 (Admin)������������������������������������������ 15.4.5, 17.3.3, 17.4.3–4, 17.4.6, 31.1.1 R (G) v Upper Tribunal [2016] EWHC 239 (Admin) [2016] ACD 52������������������������������������������������������������������������������������� 32.3.19 R (Gallagher) v Basildon District Council [2010] EWHC 2824 (Admin) [2011] PTSR 731�������������������������������������� 55.3.10, 56.3.5 R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 [2019] AC 96��������� 41.2.4, 45.1.2, 45.3.6, 54.1.2, 54.1.5–6, 54.1.11, 54.2.4–5, 55.1.8, 55.1.10, 55.1.13, 55.1.15–16, 55.1.19, 57.2.2 R (Gallastegui) v Westminster City Council [2013] EWCA Civ 28 [2013] 1 WLR 2377��������������������������������������������������������� 39.3.4 R (Galligan) v University of Oxford [2001] EWHC Admin 965 [2002] ELR 494�������������������������������������������������������� 34.1.3, 36.2.4 R (Ganidagli) v SSHD [2001] EWHC Admin 70��������������������������������������������������������������������������������������������������������� 41.2.3, 61.1.24 R (Garbet) v Circle 33 Housing Trust [2009] EWHC 3153 (Admin)��������������������������������������������������������������� 6.1.3, 21.5.30, 27.3.11 R (Gare) v Babergh District Council [2019] EWHC 2041 (Admin) [2019] ACD 112�������������������������������������������������� 4.1.20, 64.2.3 R (Garg) v Criminal Injuries Compensation Authority [2007] EWCA Civ 797�������������������������������������������������������������������������� 4.2.8 R (Garland) v Secretary of State for Justice [2011] EWCA Civ 1335 [2012] 1 WLR 1879������������������������������������������������������ 29.2.5 R (Garner) v Elmbridge LBC [2011] EWCA Civ 891���������������������������������������������������������������������������������������������������������������� 23.3.7

869

TABLE OF CASES R (Gashi) v SSHD [2003] EWHC 1198 (Admin)����������������������������������������������������������������������������������������������������������������������� 6.2.12 R (Gaskin) v Richmond upon Thames LBC [2018] EWHC 1996 (Admin) [2019] PTSR 567����������������������������������������������� 46.1.19 R (Gassa) v Richmond Independent Appeals Service [2020] EWHC 957 (Admin)�������������������������������������������������������������������� 4.5.7 R (Gasztony) v SSHD [2018] EWHC 3500 (Admin)������������������������������������������������������������������������������������������������� 20.1.11, 20.1.17 R (Gavin) v Haringey LBC [2003] EWHC 2591 (Admin) [2004] 1 PLR 61����������������������������������������������� 20.1.26, 26.4.2, 26.4.4–6 R (Gazelle Properties Ltd) v Bath and North East Somerset Council [2010] EWHC 3127 (Admin)�������������������������������������� 32.3.13 R (GB) v Oxfordshire County Council [2001] EWCA Civ 1358 [2002] ELR 8���������������������������������������������������������������������� 64.4.15 R (GC) v Metropolitan Police Commissioner [2011] UKSC 21 [2011] 1 WLR 1230������������������������������������ 9.3.7, 11.1.12, 12.2.12, 13.1.5, 39.1.2, 59.6.8 R (Gentle) v Prime Minister [2006] EWCA Civ 1078������������������������������������������������������������������������������������������������������������� 21.2.12 R (Gentle) v Prime Minister [2008] UKHL 20 [2008] 1 AC 1356������������������������������������������������������������������� 6.3.13, 34.4.15, 59.2.4 R (George) v SSHD [2014] UKSC 28 [2014] 1 WLR 1831������������������������������������������������������������������������������������������ 7.4.8, 29.3.11 R (Georgiou) v London Borough of Enfield [2004] EWHC 779 (Admin) [2004] LGR 497��������������������������������������������������� 17.3.13 R (Ghadami) v Harlow District Council [2004] EWCA Civ 891��������������������������������������������������������������������������������������������� 23.1.15 R (Ghadami) v Harlow District Council [2004] EWHC 1883 (Admin) [2005] LGR 24������������������������������������� 4.2.8, 17.4.4, 17.4.7 R (Ghai) v Newcastle City Council [2010] EWCA Civ 59 [2011] QB 591����������������������������������������������������������������� 22.4.18, 23.2.9 R (Gibraltar Betting & Gaming Association Ltd) v Secretary of State for Culture, Media and Sport [2014] EWHC 3236 (Admin) [2015] 1 CMLR 28������������������������������������������������������������������������������������������������������������������ 38.2.5 R (Gibson) v Secretary of State for Justice [2018] UKSC 2 [2018] 1 WLR 629��������������������������������������������������������������������� 29.3.15 R (Gilboy) v Liverpool City Council [2008] EWCA Civ 751 [2009] QB 699��������������������������������������������������������������������������� 4.5.10 R (Giles) v Fareham Borough Council [2002] EWHC 2951 (Admin) [2003] HLR 524����������������������������������������������������������� 64.2.4 R (Giles) v Parole Board [2003] UKHL 42 [2004] 1 AC 1�������������������������������������������������������������������������������������������������������� 59.4.5 R (Gill) v Cabinet Office [2019] EWHC 3407 (Admin)�������������������������������������������������������������������������� 4.6.1, 7.3.1, 7.3.3, 34.4.6–7 R (Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin) (2010) 13 CCLR 193����������������������������������������������������� 6.2.11 R (Gillan) v Commissioner of Police of the Metropolis [2004] EWCA Civ 1067 [2005] QB 388 (CA)�������������������� 10.1.1, 10.4.11 R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12 [2006] 2 AC 307�������������������������� 29.3.24, 59.4.2, 59.4.6 R (Gillan) v Winchester Crown Court [2007] EWHC 380 (Admin) [2007] 1 WLR 2214������������������������������������������ 3.2.12, 48.1.16 R (Giordano Ltd) v Camden LBC [2019] EWCA Civ 1544 [2020] PTSR 490������������������������������������������������������������������������� 48.1.9 R (Giri) v SSHD [2015] EWCA Civ 784 [2016] 1 WLR 4418�������������������������������������������������������������������������������������� 49.1.4, 57.1.1 R (Girling) v Parole Board [2005] EWHC 5469 [2006] 1 WLR 1917 [2006] EWCA Civ 1779 [2007] QB 783����������������������������������������������������������������������������������������������������������������������������������������������� 22.4.21, 46.2.1, 50.2.3 R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716 [2017] 4 WLR 213���������������������������� 1.1.9, 1.2.10, 23.1.17, 36.3.2–4, 36.3.6, 36.3.12, 36.3.14, 36.3.18, 36.3.20 R (Glencore Energy UK Ltd) v HMRC [2017] EWHC 1476 (Admin)�������������������������������������������������������������������������������������� 4.1.12 R (Glenn & Co (Essex) Ltd) v HM Commissioners for Revenue and Customs [2011] EWHC 2998 (Admin) [2012] 1 Cr App R 291���������������������������������������������������������������������������������������������������������������������������������������������� 55.1.6, 64.4.11 R (Glenn & Co (Essex) Ltd) v HMRC [2010] EWHC 1469 (Admin) [2011] 1 WLR 1964���������������������������������������������������� 22.1.24 R (Global Vision College Ltd) v SSHD [2014] EWCA Civ 659 [2014] ELR 313������������������������������������������������������������������ 38.2.21 R (Golding) v Maidstone Crown Court [2019] EWHC 2029 (Admin) [2019] 1 WLR 5939�������������������������������������������������� 21.5.13 R (Goldsmith) v London Borough of Wandsworth [2004] EWCA Civ 1170 (2004) 7 CCLR 472���������������������������� 56.1.6, 61.7.11, 64.4.15, 65.1.14 R (Goldsmith) v Secretary of State for Justice [2019] EWHC 3247 (Admin)��������������������������������������������������������������������������� 17.3.8 R (Goldsworthy) v Secretary of State for Justice [2017] EWHC 2822 (Admin)��������������������������������������������������������������������� 55.3.13 R (Goloshvili) v SSHD [2019] EWHC 614 (Admin)������������������������������������������������������������������������������������������������������������������� 4.5.7 R (Good Law Project Ltd) v HMRC [2019] EWHC 3125 (Admin)���������������������������������������������������������������������������������������� 21.5.19 R (Good Law Project Ltd) v Secretary of State for Exiting the European Union [2018] EWHC 719 (Admin)���������������������� 36.3.33 R (Good Law Project) v Electoral Commission [2018] EWHC 602 (Admin)��������������������������������������������������������������������������� 3.1.15 R (Good Law Project) v Electoral Commission [2019] EWCA Civ 1567 [2020] 1 WLR 1157�������������������� 5.2.12, 22.2.18, 29.3.15 R (Goodman) v London Borough of Lewisham [2003] EWCA Civ 140 [2003] Env LR 644��������������������������� 16.4.1, 16.4.9, 36.4.7 R (Gopee) v Southwark Crown Court [2019] EWHC 568 (Admin)������������������������������������������������������������������������������������������ 3.2.14 R (Gordon-Jones) v Secretary of State for Justice [2014] EWHC 3997 (Admin) [2015] ACD 42������������������������������������������ 58.3.24 R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860 [2018] 1 WLR 5161��������������������������������������������������������������������������������������������������������������������������� 3.1.19, 4.1.6–7, 4.1.9, 19.2.20 R (Gorlov) v Institute of Chartered Accountants in England and Wales [2002] EWHC 2202 (Admin)������������������������������������ 17.2.9 R (Gossip) v NHS Surrey Downs Clinical Commissioning Group [2019] EWHC 3411 (Admin) [2020] PTSR 1239����������������������������������������������������������������������������������������������������������������������������������������������� 5.2.1, 5.3.3, 36.4.3 R (Gourlay) v Parole Board [2017] EWCA Civ 1003 [2017] 1 WLR 4107��������������������������������������������������� 18.1.15, 18.1.24, 18.2.7 R (Governing Body of London Oratory School) v Schools Adjudicator [2005] EWHC 1842 (Admin) [2005] ELR 484����������������������������������������������������������������������������������������������������������������������������������������������������������������������� 24.4.4 R (Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA 594������������������������������������������������������������������������������������������������������������������������������ 3.2.16–17, 20.2.6, 20.2.9–10, 23.3.26, 56.3.2, 57.4.1 R (Governor of HMP Wandsworth) v Kinderis [2007] EWHC 998 (Admin) [2008] QB 347����������������������������������� 19.2.28, 24.2.15 R (Grace Bay II Holdings Sarl) v Pensions Regulator [2017] EWHC 7 (Admin) [2017] ACD 32������������� 21.5.21, 36.3.11, 36.3.23 R (Grace) v SSHD [2014] EWCA Civ 1091������������������������������������������������������������������������������������������������������������������������������ 21.3.4 R (Granger-Taylor) v High Speed Two (HS2) Ltd [2020] EWHC 1142 (Admin) [2020] ACD 80������� 17.6.7, 34.1.1, 34.5.7, 59.9.4 R (Gransian Ltd) v SSHD [2008] EWHC 3431 (Admin)��������������������������������������������������������������������������������������������� 18.3.5, 18.3.11 R (Grant) v Kingston Crown Court [2015] EWHC 767 (Admin) [2015] 2 Cr App R (S) 11���������������������������������������������������� 46.1.5 R (Grantham) v Parole Board for England and Wales [2019] EWHC 116 (Admin)������������������������������������������������������ 56.2.5, 64.3.4

870

TABLE OF CASES R (Great North Eastern Railway Ltd) v Office of Rail Regulation [2006] EWHC 1942 (Admin)�������������������������������� 13.4.1, 18.2.5 R (Great Yarmouth Port Co Ltd) v Marine Management Organisation [2013] EWHC 3052 (Admin) [2014] ACD 23���������� 36.3.18 R (Green) v Commissioner of Police of the Metropolis [2018] EWHC 3657 (Admin)��������������������� 3.1.11, 3.1.13, 18.1.32, 25.1.13 R (Green) v Financial Ombudsman Service Ltd [2003] EWHC 338 (Admin)�������������������������������������������������������������������������� 49.3.2 R (Green) v Police Complaints Authority [2002] EWCA Civ 389 [2002] UKHRR 985 [2004] UKHL 6 [2004] 1 WLR 725���������������������������������������������������������������������������������������������������������������������������� 5.2.12, 23.2.12, 59.2.4, 59.3.3, 61.6.8, 61.6.10, 61.6.15 R (Greenfield) v SSHD [2005] UKHL 14 [2005] 1 WLR 673��������������������������������������������������������������������������������� 9.5.3–4, 59.5.3–4 R (Greenpeace Ltd) v Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 55 (Admin) [2016] PTSR 851��������������������������������������������������������������������������������������������������������������������������������������������������������������������� 56.3.2 R (Greenpeace Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWCA Civ 1656 [2006] Env LR 627������������������������������������������������������������������������������������������������������������������������������������������������������ 18.4.2, 23.2.8 R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) [2007] Env LR 623���������������������������������������������������������������������������������������������������������������������������� 11.1.2, 41.2.3, 61.1.18, 62.1.5 R (Gregory) v Thames Magistrates’ Court [2019] EWHC 2125 (Admin)������������������������������������������������������������������� 21.3.8, 21.5.33 R (Grierson) v Ofcom [2005] EWHC 1899 (Admin) [2005] EMLR 37������������������������������������������������������������������������������������ 38.3.3 R (Griffin) v City of Westminster Magistrates’ Court [2011] EWHC 943 (Admin) [2012] 1 WLR 270��������������������� 3.2.24, 61.7.11 R (Grimsby Institute of Further & Higher Education) v Chief Executive of Skills Funding [2010] EWHC 2134 (Admin)������������������������������������������������������������������������������������������������������������������������������������������������ 54.1.19 R (Grinham) v Parole Board [2020] EWHC 2140 (Admin)��������������������������������������������������������������������������������� 2.6.6, 4.1.14, 61.7.1 R (Grogan) v Bexley NHS Care Trust [2006] EWHC 44 (Admin) [2006] LGR 491�������������������������������������������������� 55.1.6, 55.1.28 R (Ground Rents (Regisport) Ltd) v Upper Tribunal [2013] EWHC 2638 (Admin) [2014] ACD 38������������������������� 32.3.20, 49.3.3 R (GS) v HM Senior Coroner for Wiltshire & Swindon [2020] EWHC 2007 (Admin)������������������������������������������������ 48.1.9, 59.2.4 R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 [2013] QB 618���������������������������������������������������������������������������������������������������������������������� 7.1.11, 7.1.13, 7.6.17, 11.1.15, 33.1.7, 35.1.10, 35.2.11, 48.2.7, 60.1.12 R (Gudanaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622 [2015] 1 WLR 2247��������������������������������������� 5.2.9 R (Gudanaviciene) v Immigration and Asylum First Tier Tribunal [2017] EWCA Civ 352 [2017] 1 WLR 4095�������������������� 18.2.7 R (Guerry) v Hammersmith and Fulham LBC [2018] EWHC 2899 (Admin)������������������������������������������������� 4.1.16, 16.4.6, 65.1.11 R (Guest) v DPP [2009] EWHC 594 (Admin) [2009] 2 Cr App R 426������������������������������������������������������������������������������������� 32.3.6 R (Guinee) v Merthyr Tydfil Crown Court [2011] EWHC 2052 (Admin)����������������������������������������������������������������� 19.3.17, 26.3.17 R (Guiney) v Greenwich LBC [2008] EWHC 2012 (Admin)������������������������������������������������������������������������ 18.1.23, 24.3.12, 43.1.7 R (Gul) v SSJ [2014] EWHC 373 (Admin) [2014] ACD 106���������������������������������������������������������������������������������������� 7.5.4, 35.2.10 R (Guled) v SSHD [2019] EWCA Civ 92 [2019] Imm AR 917������������������������������������������������������������������������������������������������� 44.3.1 R (Gunn-Russo) v Nugent Care Society [2001] EWHC Admin 566 [2001] UKHRR 1320���������������������������������������� 34.1.3, 61.6.15 R (Gupta) v General Medical Council The Times 16th October 2001��������������������������������������������������������������������������������������� 61.3.6 R (Gurja) v CPS [2012] UKSC 52 [2013] 1 AC 484������������������������������������������������������������������������������������������������������ 50.4.6, 53.1.8 R (Gurung) v Ministry of Defence [2002] EWHC 2463 (Admin)����������������������������������������������������������������� 32.1.10, 55.1.8, 55.1.16 R (Gurung) v SSHD [2012] EWHC 1629 (Admin)������������������������������������������������������������������������������������������������������������������ 58.3.24 R (Gurung) v SSHD [2013] EWCA Civ 8 [2013] 1 WLR 2546�������������������������������������������������������������������� 6.2.12, 46.1.12, 53.1.11 R (Gwynt-y-Mor Offshore Wind Farm Ltd) v Gas and Electricity Markets Authority [2019] EWHC 654 (Admin) [2019] ACD 54������������������������������������������������������������������������������������ 13.4.2, 57.4.4, 64.3.14, 64.4.7 R (H) v A City Council [2011] EWCA Civ 403 [2011] UKHRR 599���������������������������������������������������������������� 16.3.2, 58.2.4, 61.6.7 R (H) v Ashworth Hospital Authority [2001] EWHC Admin 872 [2002] 1 FCR 206������������������������������������������������� 38.4.6, 50.4.11 R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 [2003] 1 WLR 127���������������������������� 20.1.14, 20.2.7, 31.2.6, 44.3.6, 64.3.9, 64.3.15, 64.3.22 R (H) v Commissioners of Inland Revenue [2002] EWHC 2164 (Admin) [2002] STC 1354������������������������������������������������� 17.4.13 R (H) v Ealing LBC [2017] EWCA Civ 1127 [2018] PTSR 541��������������������������������������������������������������������������� 23.3.11–12, 55.2.4 R (H) v Guildford Youth Court [2008] EWHC 506 (Admin)��������������������������������������������������������������������������������������� 41.2.3, 41.2.21 R (H) v London Borough of Brent [2002] EWHC 1105 (Admin) [2002] ELR 509�������������������������������������������������� 26.2.16, 26.3.14 R (H) v Mental Health Review Tribunal, North and East London Region [2001] EWCA Civ 415 [2002] QB 1������������������� 12.2.11 R (H) v Parole Board [2011] EWHC 2081 (Admin)������������������������������������������������������������������������������������������������������������������ 49.3.3 R (H) v Secretary of State for Health [2005] UKHL 60 [2006] 1 AC 441������������������������������������������������������������������� 17.4.11, 59.4.3 R (H) v Secretary of State for Justice [2015] EWHC 4093 (Admin) [2016] ACD 56����������������������������������������������������������������� 4.1.3 R (H) v SSHD [2003] UKHL 59 [2004] 2 AC 253���������������������������������������������������������������������������������������������������������� 9.5.4, 59.4.3 R (H) v SSHD [2018] EWHC 2191 (Admin)����������������������������������������������������������������������������������������������������������������������������� 24.3.5 R (H) v Wood Green Crown Court [2006] EWHC 2683 (Admin) [2007] 1 WLR 1670��������������������������������������������������������� 32.2.12 R (HA (Nigeria)) v SSHD [2012] EWHC 979 (Admin)����������������������������������������������������������������������������������������������������������� 57.3.12 R (HA) v Ealing LBC [2015] EWHC 2375 (Admin) [2016] PTSR 16�������������������������������������������������������������������������������������� 50.4.7 R (HA) v University of Wolverhampton [2018] EWHC 144 (Admin) [2018] ELR 272����������������������������������������������������������� 56.1.2 R (Hackney LBC) v Secretary of State for Housing and Local Government [2019] EWHC 1438 (Admin)������������� 41.2.21, 51.1.5, 55.2.12, 58.3.3, 61.1.7 R (Haden) v Shropshire Council [2020] EWHC 33 (Admin)��������������������������������������������������������������������������������������������������� 22.4.14 R Hafeez) v Southwark Crown Court [2018] EWHC 954 (Admin) [2018] ACD 46��������������������������������������������������������������� 21.5.23 R (Hafeez) v SSHD [2020] EWHC 437 (Admin) [2020] 1 WLR 1877����������������������������������������������������������������������� 22.2.18, 46.2.5 R (Haigh) v City of Westminster Magistrates’ Court [2017] EWHC 232 (Admin) [2017] ACD 47��������������������������������������� 58.3.20 R (Hallam) v Secretary of State for Justice [2019] UKSC 2 [2020] AC 279������������������������������������������������������� 9.2.3, 9.2.14, 59.5.5 R (Hambleton) v Coroner for the Birmingham Inquests (1974) [2018] EWCA Civ 2081 [2019] 1 WLR 3417����������� 13.3.2, 13.3.4 R (Hamid) v SSHD [2012] EWHC 3070 (Admin)��������������������������������������������������������������������������������������������������������� 2.2.18, 3.1.20

871

TABLE OF CASES R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin)����������������������������������� 24.3.13, 24.4.25, 26.2.16, 34.1.3, 38.1.6, 38.2.8, 38.2.13, 38.2.24 R (Hammond) v SSHD [2005] UKHL 69 [2006] 1 AC 603������������������������������������������������������������������������������������������ 9.3.7, 59.5.11 R (Hampson) v Wigan Metropolitan Borough Council [2005] EWHC 1656 (Admin)�������������������������������������������������������������� 56.1.7 R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] EWHC 713 (Admin) [2005] 1 WLR 2930��������������������������������������������������������������������������������������������������������������������������������� 7.7.3, 24.2.16, 29.3.12–13 R (Haq) v Walsall Metropolitan Borough Council [2019] EWHC 70 (Admin) [2019] PTSR 1192 [2019] ACD 45���������������������������������������������������������������������������������������������������������������������������������������������������������� 58.5.7, 59.10.3 R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236��������������������������� 1.1.4, 1.2.2, 2.1.6, 2.1.15, 10.1.15, 11.1.6, 13.6.1, 15.2.1, 21.5.22, 22.4.22, 32.2.2, 33.1.3, 42.1.3, 61.6.13 R (Hardy) v Pembrokeshire [2005] EWHC 1872 (Admin) [2006] Env LR 16�������������������������������������������������������������������������� 26.4.4 R (Hardy) v Pembrokeshire County Council [2006] EWCA Civ 240 [2006] Env LR 659������������������������������������������������������ 26.1.10 R (Hardy) v Sandwell Metropolitan Borough Council [2015] EWHC 890 (Admin) [2015] PTSR 1292��������������������������������� 50.4.6 R (Hargrave) v Stroud District Council [2002] EWCA Civ 1281 [2002] 3 PLR 115������������ 19.2.20, 23.2.8, 39.3.9, 40.1.4, 64.3.19 R (Haringey Consortium of Disabled People and Carers Association) v Haringey LBC (2002) 5 CCLR 422������������������������� 36.4.4 R (Harris) v Broads Authority [2016] EWHC 799 (Admin) [2017] 1 WLR 567����������������������������������������������������������� 4.1.19, 54.2.9 R (Harrison) v Birmingham Magistrates’ Court [2011] EWCA Civ 332������������������������������������������������������������������� 17.3.12, 61.1.24 R (Harrison) v Secretary of State for Justice [2019] EWHC 3214 (Admin) [2020] ACD 17���������������������������������������������������� 6.2.10 R (Harrison) v SSHD [2003] EWCA Civ 432 [2003] INLR 284����������������������������������������������������������������������������������� 49.1.3, 49.2.2 R (Harvey) v Ledbury Town Council [2018] EWHC 1151 (Admin) [2018] ACD 71��������������������������������������������������� 21.1.5, 46.1.5 R (Harvey) v Leighton Linslade Town Council [2019] EWHC 760 (Admin)������������������������������������������������������������������������� 18.4.15 R (Harvey) v Mendip District Council [2017] EWCA Civ 1784����������������������������������������������������������������������� 4.1.18, 16.4.4, 29.5.8 R (Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1311 [2009] 3 All ER 539������������������������� 64.1.1, 64.2.4 R (Hashmi) v SSHD [2002] EWCA Civ 728 [2002] INLR 377��������������������������������������������������������������������������������� 41.2.12, 54.2.10 R (Hassan) v SSHD [2019] EWHC 1288 (Admin)���������������������������������������������������������������������������� 17.6.8, 22.1.15, 32.4.5, 39.3.12 R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331 [2017] 1 WLR 4750��������������������������������������������� 33.1.8, 61.2.1 R (Hawking) v Secretary of State for Health and Social Care [2018] EWHC 989 (Admin) [2018] ACD 41������������������������� 18.4.13 R (Haworth) v HMRC [2019] EWCA Civ 747 [2019] 1 WLR 4708������������������������������������������������������������������� 7.5.3, 48.1.9, 61.4.3 R (Haworth) v Northumbria Police Authority [2012] EWHC 1225 (Admin)���������������������������������������������������������������������������� 53.1.9 R (Hayes) v CPS [2018] EWHC 327 (Admin) [2018] 1 WLR 4106��������������������������������������������������������������������������������������� 50.4.13 R (Hayes) v Secretary of State for Communities and Local Government [2009] EWHC 3520 (Admin)��������������������������������� 64.2.4 R (HC) v SSHD [2013] EWHC 982 (Admin) [2014] 1 WLR 1234������������������������������������������������������������������������������������������� 5.2.12 R (HCP (Hendon) Ltd) v Chief Land Registrar [2020] EWHC 1278 (Admin)�������������������������������������������������������������� 21.4.4, 34.5.7 R (Headley) v Parole Board [2009] EWHC 663 (Admin)���������������������������������������������������������������������������������������������������������� 61.7.6 R (Health & Safety Executive) v Wolverhampton City Council [2010] EWCA Civ 892 [2011] PTSR 645������������������������������������������������������������������������������������������������������������������������������� 23.3.31, 26.3.8, 26.4.6, 31.2.3 R (Heath & Hampstead Society) v Camden LBC [2008] EWCA Civ 193 [2008] 3 All ER 80��������������������������������������������������� 6.2.8 R (Heath) v Doncaster Metropolitan Borough Council [2001] ACD 273������������������������������������������������������������������������������������ 4.6.2 R (Heather) v Leonard Cheshire Foundation [2001] EWHC Admin 429 (2001) 4 CCLR 211 [2002] EWCA Civ 366 [2002] 2 All ER 936���������������������������������������������������������������������������������������� 27.3.11–12, 34.1.4, 34.4.22 R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213����������������������� 4.1.19, 4.2.7, 4.5.1, 4.5.6, 17.1.13, 41.2.1, 41.2.4, 41.2.10, 56.3.2 R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168������������������������������������� 7.5.2, 10.1.15, 16.5.1, 31.1.4, 61.1.16, 61.3.1, 61.5.8, 62.1.1, 62.1.4–5, 62.2.10, 64.1.7 R (Hely-Hutchinson) v HMRC [2017] EWCA Civ 1075 [2018] 1 WLR 1682���������������������������������� 40.2.2, 40.2.7, 41.1.1, 54.1.10, 54.1.12, 54.2.7, 55.1.21 R (Hemmati) v SSHD [2019] UKSC 56 [2019] 3 WLR 1156������������������������������������������������������ 6.2.3, 6.2.6, 8.1.10, 8.1.15, 16.4.5, 44.2.1, 44.3.4, 45.3.8, 57.1.16 R (Hemming) v Westminster City Council (No.2) [2017] UKSC 50 [2018] AC 676���������������������������������������������������������������� 43.1.1 R (Henlow Grange Health Farm Ltd) v Bedfordshire County Council [2001] EWHC Admin 179���������������������������������������� 24.2.14 R (Hereford Waste Watchers Ltd) v Hereford Council [2005] EWHC 191 (Admin) [2005] Env LR 586������������������������������ 18.1.27 R (Hever Resort Hotel Ltd) v Birmingham Magistrates Court [2019] EWHC 2812 (Admin)������������������������������������������������ 22.2.21 R (Hicks) v Commissioner of Police of the Metropolis [2017] UKSC 9 [2017] AC 256������������������������������������ 2.1.13, 9.1.6, 59.4.6 R (Hide) v Staffordshire County Council [2007] EWHC 2441 (Admin)��������������������������������������������������������������������������������� 18.2.17 R (Higham) v University of Plymouth [2005] EWHC 1492 (Admin) [2005] ELR 547������������������������������������������������������������ 49.4.4 R (Hilali) v Governor of Whitemoor Prison [2008] UKHL 3 [2008] 1 AC 805�������������������������������������������������� 7.6.7, 28.1.8, 28.2.3 R (Hill) v Institute of Chartered Accountants in England and Wales [2012] EWHC 1731 (QB)���������������������������������������������� 31.3.8 R (Hill) v Institute of Chartered Accountants in England and Wales [2013] EWCA Civ 555 [2014] 1 WLR 86���������������������� 31.3.8 R (Hill) v Parole Board [2012] EWHC 809 (Admin)������������������������������������������������������������������������������������������������������������������� 2.6.6 R (Hill) v SSHD [2007] EWHC 2164 (Admin)������������������������������������������������������������������������������������������������������������������������ 55.1.24 R (Hillingdon LBC) v Lord Chancellor [2008] EWHC 2683 (Admin) [2009] 1 FCR 1����������������������������������������������������������� 62.2.1 R (Hillingdon LBC) v Secretary of State for Transport [2017] EWHC 121 (Admin) [2017] 1 WLR 2166����������������������������������������������������������������������������������������������������������������� 4.6.8, 22.1.15, 28.2.1, 28.2.3, 28.2.5 R (Hillingdon LBC) v Secretary of State for Transport [2020] EWCA Civ 1005���������������������������������������������� 40.1.3, 51.1.6, 51.1.9 R (Hindawi) v Secretary of State for Justice [2011] EWHC 830 (QB)�������������������������������������������������������������������������������������� 51.2.1 R (Hirst) v SSHD [2002] EWHC 602 (Admin) [2002] 1 WLR 2929�������������������������������������������������������������������������������������� 24.4.25 R (HMRC) v Machell [2005] EWHC 2593 (Admin) [2006] 1 WLR 609�������������������������������������������������������������������������������� 28.1.12

872

TABLE OF CASES R (HMRC) v Maidstone Crown Court [2018] EWHC 2219 (Admin [2018] ACD 106������������������������������������������������� 43.1.7, 57.4.5 R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1282 (Admin)���������������� 10.1.14, 18.1.32 R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91�������������������������������������������������������������������������������������������������������������������������������������� 1.2.7, 10.1.4, 10.1.12, 10.4, 10.4.4–8, 17.3.1, 17.3.7, 17.5.6 R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010������������������������������������������������������������������������������������������������������������������� 6.3.10, 9.1.18, 21.5.22, 23.3.5, 32.4.4, 32.4.7, 32.4.9, 49.3.3, 57.4.1 R (Hoar-Stevens) v Richmond-upon-Thames Magistrates’ Court [2003] EWHC 2660 (Admin)������������������������������������������� 32.3.16 R (Hodgson) v South Wales Police Authority [2008] EWHC 1183 (Admin)���������������������������������������������������������������������������� 34.5.9 R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 [2014] AC 610������������������������� 11.1.15, 23.2.9, 29.3.5, 34.4.19, 48.1.1 R (Hoffmann) v Commissioner of Inquiry [2012] UKPC 17����������������������������������������������������������������������������� 31.3.9, 61.2.2, 61.7.5 R (Holder) v Gedling Borough Council [2018] EWCA Civ 214 [2018] PTSR 1542���������������������������������������������������������������� 16.4.4 R (Holdsworth) v Secretary of State for Justice [2019] EWHC 2079 (Admin) [2019] ACD 118��������������������������������������������� 26.3.4 R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871��������������������������������� 11.1.8, 17.3.8, 22.1.26, 30.1.5, 51.1.5, 54.1.12, 56.1.9, 61.1.14, 61.1.18, 64.3.6 R (Holloway) v Harrow Crown Court [2019] EWHC 1731 (Admin)���������������������������������������������������������������������������������������� 2.6.11 R (Holmcroft Properties Ltd) v KPMG LLP [2018] EWCA Civ 2093������������������������������������ 23.3.20, 31.2.3, 34.1.2, 34.2.4, 34.5.6 R (Holme) v Liverpool Magistrates Court [2004] EWHC 3131 (Admin)���������������������������������������������������������������������������������� 18.2.7 R (Holmes) v General Medical Council [2001] EWHC 321 (Admin)����������������������������������������������������������� 18.2.8, 22.2.17, 26.1.17 R (Holownia) v SSHD [2019] EWHC 696 (Admin)�������������������������������������������������������������������������������������������������������������������� 3.2.9 R (Holub) v SSHD [2001] 1 WLR 1359������������������������������������������������������������������������������������������������������������������������ 5.4.11, 38.4.6 R (Homesun Holdings Ltd) v Secretary of State for Energy and Climate Change [2012] EWCA Civ 28 [2012] Env LR 25�������������������������������������������������������������������������������������������������������������������������������������������������������������������� 16.1.1 R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29 [2005] 1 WLR 1681��������������������������������� 7.1.12, 9.1.16, 12.2.12, 53.1.9, 59.8.19 R (Hopkins) v Secretary of State for Justice [2019] EWHC 2151 (Admin) [2019] ACD 132��������������������������������������������������� 61.7.5 R (Hopley) v Liverpool Health Authority [2002] EWHC 1723 (Admin)������������������ 34.1.4, 34.2.1, 34.2.4, 34.2.11, 34.5.8, 34.5.12 R (Hopper Entertainment Ltd) v Office of Communications [2011] EWHC 3693 (Admin)��������������������������������������������������� 17.5.20 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)���������������������������������������������������� 1.2.2, 15.4.1, 26.2.9, 49.3.1, 51.2.1, 55.2.7, 58.3.3, 62.3.8, 62.3.11 R (Hossack) v Kettering Borough Council [2003] EWHC 1929 (Admin)������������������������������������������������������������������������������� 51.1.11 R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92����������������� 1.2.16, 7.1.2, 7.5.4, 10.4.4, 16.5.3, 17.2.16, 23.1.8, 23.1.17, 32.5.2, 37.1.21, 61.2.2–3 R (Howard League for Penal Reform) v SSHD [2002] EWHC 2497 (Admin) [2003] 1 FLR 484�������������������������������������������������������������������������������������������������������������������������������� 2.6.22, 4.5.1, 24.2.15, 31.1.1 R (Howell) v Waveney District Council [2018] EWHC 3388 (Admin)������������������������������������������������������������������������������������� 4.1.19 R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2015] EWCA Civ 203 [2015] PTSR 1025������������������������� 18.4.17 R (HSMP Forum Ltd) v SSHD [2008] EWHC 664 (Admin)��������������������������������������������������������������������������� 41.2.3, 54.1.13, 54.2.7 R (HSMP Forum Ltd) v SSHD (No.2) [2008] EWHC 711 (Admin)����������������������������������������������������������������� 41.2.3, 54.2.5, 54.2.7 R (Hubert) v Carmarthenshire County Council [2015] EWHC 2327 (Admin) [2016] PTSR 162��������������������������������������������� 43.1.4 R (Hudson) v Royal Borough of Windsor and Maidenhead [2019] EWHC 3505 (Admin)����������������������������������������� 4.1.19, 21.2.28 R (Hughes) v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin)�������������������������������� 8.1.1, 8.1.6, 8.1.11, 12.1.2, 21.4.4, 26.2.12, 26.3.16, 27.1.4, 59.8.17 R (Hughes) v Commissioner of Local Administration [2001] EWHC Admin 349������������������������������������������������������������������ 24.4.25 R (Humanists UK) v Catholic Education Service [2018] EWHC 3427 (Admin)���������������������������������������������������������������������� 34.1.2 R (Humber Landlords Association) v Hull City Council [2019] EWHC 332 (Admin)������������������������������������������������� 50.4.6, 56.3.4 R (Humnyntskyi) v SSHD [2020] EWHC 1912 (Admin)������������������������������������������������������������������������������ 22.1.15, 32.4.15, 32.5.2 R (Humphries) v Secretary of State for Work and Pensions [2008] EWHC 1585 (Admin)���������������������������������������������������� 36.3.30 R (Hunt) v DPP [2020] EWHC 1292 (Admin) 4 WLR 81��������������������������������������������������������������������������������������������������������� 18.1.2 R (Hunt) v North Somerset Council [2015] UKSC 51 [2015] 1 WLR 3375��������������������������������������� 1.2.8, 18.1.22, 23.3.32, 24.3.2 R (Hunter) v Newcastle Crown Court [2013] EWHC 191 (Admin) [2014] QB 94����������������������������������������������������������������� 32.2.12 R (Hurley) v Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin) [2016] PTSR 636�������������������������������� 58.3.5 R (Hurst) v London Northern District Coroner [2005] EWCA Civ 890 [2005] 1 WLR 3892 [2007] UKHL 13 [2007] 2 AC 189����������������������������������������������������������������������������������������������������� 6.3.20, 9.3.6, 23.2.10, 56.2.3 R (Husain) v Asylum Support Adjudicator [2001] EWHC Admin 852������������������������������������������������������������������������������������ 17.5.10 R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin) [2018] PTSR 142������������������������������������������������������������������������������������������������������������������������ 17.2.11, 17.3.19, 17.4.13, 20.1.14, 21.5.14, 63.2.2, 63.3.8, 65.1.9 R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin)������������� 18.3.10, 20.1.23, 20.2.2, 20.2.5 R (Hussain) v Secretary of State for Justice [2016] EWCA Civ 1111 [2017] 1 WLR 761������������������������������������� 5.4.1, 5.4.3, 5.4.5, 23.3.22, 36.3.3, 36.3.20 R (Hussain) v SSHD [2012] EWHC 1952 (Admin)��������������������������������������������������������������������������������������� 55.1.5, 55.1.18, 55.1.26 R (Hussein) v SSHD [2018] EWHC 213 (Admin) [2018] ACD 32����������������������������������������������������������������� 58.4.3, 58.4.6, 59.10.3 R (Hysaj) v SSHD [2014] EWCA Civ 1633 [2015] 1 WLR 2472��������������������������������������������������������������������������������������������� 3.1.14

873

TABLE OF CASES R (Hysaj) v SSHD [2017] UKSC 82 [2018] 1 WLR 221����������������������������������������������������������������������������������������������� 22.3.2, 22.3.4 R (I) v SSHD [2007] EWHC 3103 (Admin)���������������������������������������������������������������������������������������������������������������������������� 21.1.20 R (I) v SSHD [2010] EWCA Civ 727��������������������������������������������������������������������������������������������������� 10.4.8, 10.4.13, 42.2.3, 42.2.8 R (IA) v Secretary of State for Communities & Local Government [2011] EWCA Civ 1253�������������������������������������������������� 28.2.3 R (I-CD Publishing Ltd) v Secretary of State [2003] EWHC 1761 (Admin)��������������������������������������������������������������������������� 24.2.16 R (Ideal Carehomes (Number One Ltd)) v Care Quality Commission [2018] EWHC 886 (Admin) [2018] ACD 42���������������������������������������������������������������������������������������������������������������������������������������������� 20.2.5, 20.2.10, 21.5.1 R (Idira) v SSHD [2015] EWCA Civ 1187 [2016] 1 WLR 1694����������������������������������������������������������������������������������������������� 22.1.6 R (Idolo) v Bromley LBC [2020] EWHC 860 (Admin) (2020) 23 CCCL Rep 295������������������������������������������������������������������ 36.3.9 R (Ikram) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1869 (Admin)���������������������������������������������������������������������������������� 3.2.26, 22.1.9, 22.1.24, 49.3.6, 51.2.5, 64.4.10 R (ILPA) v Tribunal Procedure Committee [2016] EWHC 218 (Admin) [2016] 1 WLR 3519������������������������������������ 32.5.2, 61.6.5 R (IM (Nigeria)) v SSHD [2013] EWCA Civ 1561 [2014] 1 WLR 1870�������������������������������������������������������������������� 20.2.12, 39.3.8 R (Imam) v SSHD [2019] EWCA Civ 1760������������������������������������������������������������������������������������������������������������������������������� 57.4.7 R (Imbeah) v Willesden Magistrates’ Court [2016] EWHC 1760 (Admin) [2018] 4 WLR 3���������������������������������������� 21.3.2, 21.3.6 R (Independent Schools Council) v Charity Commission [2011] UKUT 421 (TCC) [2012] Ch 214���������������������������������������� 2.2.16 R (Independent Workers Union of Great Britain) v Central Arbitration Committee [2018] EWHC 3342 (Admin) [2019] ACD 27���������������������������������������������������������������������������������������������������������������������� 59.10.4 R (Independent Workers Union of Great Britain) v Mayor of London [2020] EWCA Civ 1046 [2020] 4 WLR 112��������������������������������������������������������������������������������������������������� 5.2.3, 16.6.2, 23.3.12, 37.1.9, 37.1.14, 37.1.18 R (Infinis Plc) v Gas and Electricity Markets Authority [2011] EWHC 1873 (Admin)��������������������������������������������������������������� 9.5.5 R (Ingenious Construction Ltd) v HMRC [2020] EWHC 2255 (Admin)�������������������������������������������������������������������������������� 20.1.16 R (Ingenious Media Holdings plc) v HMRC [2016] UKSC 54 [2016] 1 WLR 4164����������������������������� 5.2.11, 7.1.1, 7.6.14, 16.6.5, 27.2.12, 33.1.6, 35.2.6, 35.2.21, 48.1.15 R (Institute for Chartered Accountants in England and Wales) v Lord Chancellor [2019] EWHC 461 (Admin)���������������������������������������������������������������������������������������������������������������������������� 4.1.20, 49.3.6, 53.1.2 R (Interbrew SA) v Competition Commission [2001] EWHC 367 (Admin)����������������������������������������������������� 5.3.4, 57.3.3, 61.6.11 R (Interim Executive Board of X) v Ofsted [2016] EWHC 2004 (Admin) [2017] EMLR 5��������������������������������������������������� 20.2.10 R (International Masters Publishers Ltd) v HMRC [2006] EWHC 127 (Admin)���������������������������������������������������������������������� 26.3.4 R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728���������� 1.2.6, 7.1.12, 9.1.3, 9.1.8, 12.2.11, 12.3.2, 14.1.3, 34.4.15, 37.1.15, 54.1.13, 57.4.1 R (Iqbal) v Crown Court at Canterbury [2020] EWHC 452 (Admin)�������������������������������������������������������������������������������������� 20.1.18 R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 234 [2007] LGR 619������������������������������������������������������ 13.5.19, 42.1.1, 61.6.7 R (Irving) v Mid Sussex District Council [2019] EWHC 3406 (Admin)������������������������������������������� 51.1.8, 55.1.22, 56.2.5, 65.1.11 R (Irving) v Mid-Sussex District Council [2016] EWHC 1529 (Admin) [2016] PTSR 1365��������������������������������������������������� 6.2.11 R (Ise Lodge Amenity Committee (A Class Action)) v Kettering Borough Council [2002] EWHC 1132 (Admin)����������������� 34.5.7 R (Isiko) v SSHD [2001] UKHRR 385�������������������������������������������������������������������������������������������������������������������������������������� 9.1.16 R (Islam) v SSHD [2019] EWHC 2169 (Admin) [2019] ACD 131����������������������������������������������������������������������������� 38.2.24, 38.3.3 R (Islamic Human Rights Commission) v Civil Aviation Authority [2006] EWHC 2465 (Admin)������������������������������������������ 18.3.5 R (Island Farm Development Ltd) v Bridgend County Borough Council [2006] EWHC 2189 (Admin) [2007] LGR 60������������������������������������������������������������������������������������������������������������������������������������������������������������������������ 34.5.7 R (Isle of Anglesey County Council) v Secretary of State for Work and Pensions [2003] EWHC 2518 (Admin)�������������������� 58.2.1 R (Ismail) v SSHD [2016] UKSC 37 [2016] 1 WLR 2814�������������������������������������������������������������������������������� 9.1.18, 29.4.4, 39.3.4 R (Ismail) v SSHD [2019] EWHC 3192 (Admin) [2020] ACD 18�������������������������������������������������� 10.1.14, 10.4.13, 11.1.8, 22.1.26 R (IT) v Secretary of State for Justice [2008] EWHC 1707 (Admin)���������������������������������������������������������������������������������������� 55.3.7 R (Ivanauskiene) v Special Adjudicator [2001] EWCA Civ 1271 [2002] INLR 1�������������������������������������������������������������������� 14.2.2 R (J) v Head teacher and Governing Body of A School and College [2003] EWHC 1747 (Admin) [2003] ELR 743�������������� 31.3.9 R (J) v Newham LBC [2001] EWHC Admin 992 (2002) 5 CCLR 302����������������������������������������������������������������������������������� 57.3.12 R (J1) v Special Immigration Appeals Commission [2018] EWHC 3193 (Admin) [2019] 1 WLR 2594������������������������������� 21.2.28 R (JA) v London Borough of Bexley [2019] EWHC 130 (Admin)������������������������������������������������������� 17.2.6, 32.4.4, 49.4.3, 57.4.4 R (Jackley) v Secretary of State for Justice [2015] EWHC 342 (Admin)���������������������������������������������������������������������������������� 40.2.3 R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262�������������������������������������������� 1.3.9, 1.3.13, 2.1.13, 7.4.1, 12.3.4, 12.3.8–9, 26.2.20, 29.3.12, 29.4.3, 29.4.10, 33.2.23 R (Jackson) v Parole Board [2003] EWHC 2437 (Admin)������������������������������������������������������������������������������������������������������ 64.4.15 R (Jayes) v Flintshire County Council [2018] EWCA Civ 1089 [2018] ELR 416��������������������������������������������������������������������� 51.1.5 R (JB) v Haddock [2006] EWCA Civ 961 [2006] HRLR 1237����������������������������������������������������������������������������������� 15.4.5, 17.4.11 R (JD Wetherspoon Plc) v Guildford Borough Council [2006] EWHC 815 (Admin) [2007] 1 All ER 400������������� 36.3.14, 36.3.19 R (JE) v Criminal Injuries Compensation Appeals Panel [2003] EWCA Civ 234��������������������������������������������������������������������� 14.2.2 R (Jedwell) v Denbighshire County Council [2015] EWCA Civ 1232 [2016] PTSR 715������������������������������ 17.3.8, 17.4.4, 23.3.27, 64.2.24, 64.3.4, 64.4.15 R (Jeeves) v Gravesham Borough Council [2006] EWHC 1249 (Admin)��������������������������������������������������������������������������������� 6.2.11 R (Jefferies) v SSHD [2018] EWHC 3239 (Admin)���������������������������������������������������������������������������������������������������� 15.5.2, 41.2.11 R (Jenkinson) v Nursing & Midwifery Council [2009] EWHC 1111 (Admin)�������������������������������������������������������������������������� 49.3.5 R (Jet2.com Ltd) v Civil Aviation Authority [2019] EWHC 336 (Admin)������������������������������������������������������������������������������ 17.5.16 R (Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35 [2020] 2 WLR 1215����������������������������������������� 17.1.12, 22.2.18 R (Jetly) v SSHD [2019] EWHC 204 (Admin)������������������������������������������������������������������������������������ 3.1.14, 3.1.20, 17.1.3, 19.2.13 R (Jewish Rights Watch Ltd) v Leicester City Council [2018] EWCA Civ 1551 [2019] PTSR 488������������������� 2.1.33, 5.2.5, 64.3.6 R (JG) v Southwark LBC [2020] EWHC 1989 (Admin)��������������������������������������������������������������������������������� 13.5.19, 56.1.2, 57.4.3 R (Jimenez) v First-tier Tribunal [2019] EWCA Civ 51 [2019] 1 WLR 2956������������������������������������������������� 6.3.10, 29.1.3, 46.1.15

874

TABLE OF CASES R (JJ Management LLP) v HMRC [2019] EWHC 2006 (Admin) [2020] QB 619������������������������������������������ 46.1.17, 61.7.3, 64.1.1 R (JJ Management LLP) v HMRC [2020] EWCA Civ 784 [2020] 3 WLR 545����������������������������������� 6.1.4, 23.3.5, 30.1.12, 31.2.7, 32.3.1, 32.3.12, 39.3.7 R (JM) v Croydon LBC [2009] EWHC 2474 (Admin) [2010] 1 WLR 1658������������������������������������������������������������� 10.1.16, 20.1.27 R (JM) v Isle of Wight Council [2011] EWHC 2911 (Admin) (2012) 15 CCLR 167��������������������������������������������������� 51.2.2, 62.3.6 R (JM) v SSHD [2017] EWCA Civ 1669 [2018] 1 WLR 2329����������������������������������������������������������������������������������������������� 23.3.13 R (JM (Zimbabwe) v SSHD [2016] EWHC 1773 (Admin) [2017] 1 WLR 268������������������������������������������������������������������������ 44.3.6 R (John-Baptiste) v DPP [2019] EWHC 1130 (Admin)��������������������������������������������������������� 10.4.4, 13.3.4, 17.5.10, 17.5.12, 32.3.4 R (Johnson) v Professional Conduct Committee of Nursing & Midwifery Council [2008] EWHC 885 (Admin)������������������ 21.2.27 R (Johnson) v Reading Borough Council [2004] EWHC 765 (Admin)��������������������������������������������������������������������� 18.1.13, 55.1.17 R (Johnson) v Royal Free London NHS Foundation Trust [2019] EWHC 1143 (Admin)�������������������������������������������������������� 20.2.5 R (Johnson) v Secretary of State for Work and Pensions [2019] EWHC 3631 (Admin)����������������������������������� 3.2.8, 18.1.6, 18.1.11 R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778�������������������������������� 7.1.2, 17.2.16, 23.3.6, 29.2.1, 29.3.12, 32.5.4, 33.2.32, 53.1.4–5, 53.1.7, 55.1.17, 57.1.3, 57.1.5–6, 57.1.9–11, 57.4.1, 57.4.3, 57.4.7, 58.3.22, 58.3.26 R (Johnson) v SSHD [2007] EWCA Civ 427 [2007] 1 WLR 1990��������������������������������������������������������������������������������������������� 9.5.5 R (Johnson) v SSHD [2016] UKSC 56 [2017] AC 365������������������������������������������������������������������������������� 12.2.10, 26.2.19, 59.8.10 R (Johnson) v Westminster Magistrates’ Court [2019] EWHC 1709 (Admin) [2019] 1 WLR 6238����������������������������������������� 32.3.9 R (Joicey) v Northumberland County Council [2014] EWHC 3657 (Admin) [2015] PTSR 622���������������������������������������������� 62.3.7 R (Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542����������������������������� 9.1.17, 22.2.10, 23.3.2, 32.5.9, 37.1.7, 58.5.3, 59.8.9, 59.8.15–16 R (Jollah) v SSHD [2020] UKSC 4 [2020] 2 WLR 418����������������������������������������������������� 7.1.2, 7.1.13, 7.6.6, 25.2.7, 33.1.7, 59.4.2 R (Jones) v Chief Constable of Cheshire [2005] EWHC 2457 (Admin)�������������������������������������������������������������������������������������� 4.5.6 R (Jones) v Denbighshire County Council [2016] EWHC 2074 (Admin) [2016] ACD 113��������������������������������������� 38.2.26, 62.3.6 R (Jones) v First-tier Tribunal [2013] UKSC 19 [2013] 2 AC 48���������������������������������������������������������������������� 2.2.15, 13.2.3, 48.1.7 R (Jones) v Justices of the Peace [2008] EWHC 2740 (Admin)������������������������������������������������������������������������������������������������ 61.7.5 R (Jones) v Liverpool and Knowsley Magistrates’ Court [2016] EWHC 3520 (Admin) [2017] ACD 24������������������ 13.6.1, 17.3.10, 17.3.12, 17.3.15 R (Jones) v Mansfield District Council [2003] EWCA Civ 1408 [2004] Env LR 391������������������������������������ 24.3.3, 24.3.15, 49.1.4 R (Jones) v Metropolitan Police Commissioner [2019] EWHC 2957 (Admin) [2020] 1 WLR 519������������������������ 21.5.17, 24.3.14, 38.2.22, 46.1.15 R (Jones) v North Warwickshire Borough Council [2001] EWCA Civ 315������������������������������������������������������������������������������ 56.2.4 R (Jones) v Powys Local Health Board [2008] EWHC 2562 (Admin) (2009) 12 CCLR 68����������������������������������������������������� 27.3.6 R (Jordan) v Chief Constable of Merseyside Police [2020] EWHC 2274 (Admin)������������������������������������� 17.1.14, 21.5.15, 22.4.22 R (Joshi) v SSHD [2018] EWCA Civ 1108������������������������������������������������������������������������������������������������������������������ 2.1.33, 23.3.13 R (JP) v NHS Croydon Clinical Commissioning Group [2020] EWHC 1470 (Admin)���������� 36.1.1, 36.3.2, 36.3.21, 45.1.5, 51.2.1 R (JP) v SSHD [2019] EWHC 3346 (Admin) [2020] 1 WLR 918������������������������������������������ 5.3.2, 6.3.6, 32.5.13, 37.1.20, 59.8.18 R (JS (Sri Lanka) v SSHD [2010] UKSC 15 [2011] 1 AC 184���������������������������������������������������������������������������������������� 2.6.5, 6.3.17 R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449���������������� 6.3.8–9, 6.3.11, 6.3.13, 6.3.16, 6.3.18, 13.1.5, 58.4.3, 59.8.5, 59.8.18 R (Juncal) v SSHD [2008] EWCA Civ 869�������������������������������������������������������������������������������������������������������������������������������� 9.1.16 R (Just for Kids Law) v SSHD [2019] EWHC 1772 (Admin) [2019] 4 WLR 97������������������ 5.2.4, 21.2.28, 32.5.7, 32.5.10, 38.2.10 R (Justice for Health Ltd) v Secretary of State for Health [2016] EWHC 2338 (Admin) [2016] Med LR 599�������� 33.2.29, 39.2.13 R (Juttla) v Hertfordshire Valleys Clinical Commissioning Group [2018] EWHC 267 (Admin)���������������������������������� 61.5.8, 62.2.3 R (K & AC Jackson & Son) v Department for the Environment Food and Rural Affairs [2011] EWHC 956 (Admin)���������������������������������������������������������������������������������������������������������� 17.3.7, 17.3.15, 17.4.13, 61.1.21 R (K (A Child)) v SSHD [2018] EWHC 1834 (Admin) [2018] 1 WLR 6000����������������������������������� 12.2.10, 19.3.3, 21.3.7, 37.1.14 R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240 [2002] QB 198����������������������������������������������������� 59.10.11 R (K) v Secretary of State for Defence [2016] EWCA Civ 1149 [2017] 1 WLR 1671������������������������������������������������ 2.1.12, 17.5.15 R (K) v SSHD [2010] EWHC 3102 (Admin)����������������������������������������������������������������������������������������������������������������������������� 16.4.5 R (K) v SSHD [2018] EWHC 2951 (Admin) [2019] 4 WLR 92���������������������������������������������������������� 6.3.6, 34.5.2, 48.1.15, 54.2.9, 57.4.5, 59.8.17, 59.10.1 R (K) v West London Mental Health NHS Trust [2006] EWCA Civ 118 [2006] 1 WLR 1865������������������������������������������������ 39.3.4 R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 [2015] AC 1344����������������������������������� 5.1.2, 9.2.3, 9.2.13–14, 9.5.3, 16.4.1, 32.5.2, 36.3.20, 36.3.31 R (Kalah) v SSHD [2017] EWHC 2373 (Admin) [2017] ACD 128���������������������������������������������������������������������������� 18.1.32, 22.1.6 R (Kalu) v SSHD [2018] EWHC 1802 (Admin)���������������������������������������������������������������������������������������������������������������������� 18.1.32 R (Kambadzi) v SSHD [2011] UKSC 23 [2011] 1 WLR 1299���������������������������������������� 6.2.6, 6.2.10, 21.5.1, 45.2.4, 59.4.4, 61.4.4 R (Karagul) v SSHD [2019] EWHC 3208 (Admin)����������������������������������������������������������������������������������������� 16.5.1, 61.1.4, 61.6.11 R (Kareem) v Lewisham LBC 18 January 2017 unrep������������������������������������������������������������������������������������������������������������� 17.2.10 R (Kaur) v Ealing LBC [2008] EWHC 2062 (Admin)������������������������������������������������������������������������������������������������������������� 55.1.17 R (Kaur) v Institute of Legal Executives Appeal Tribunal [2011] EWCA Civ 1168 [2012] 1 All ER 1435�������������������������������������������������������������������������������������������������������������������������������������� 34.1.3, 63.1.4, 63.3.2 R (Kaur) v SSHD [2018] EWCA Civ 1423 [2018] Imm AR 1364������������������������������������������������������������������������������ 13.6.2, 23.3.14 R (Kay) v Chief Constable of Northumbria [2010] EWHC 31 (Admin) [2010] ICR 974��������������������������������������������������������� 34.5.9 R (Kay) v Leeds Magistrates’ Court [2018] EWHC 2842 (Admin) [2018] 6 Costs LR 1317�������������������������������������� 18.1.2, 18.1.6, 18.1.28, 18.1.32, 18.2.7 R (Kay) v Metropolitan Police Commissioner [2008] UKHL 69 [2008] 1 WLR 2723������������������������������������������������� 5.2.8, 24.2.16

875

TABLE OF CASES R (KB) v Mental Health Review Tribunal [2003] EWHC 193 (Admin) [2004] QB 936������������������������������������������������������������ 9.5.5 R (KBR Inc) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin) [2019] QB 675����������������������������������������� 39.3.8 R (Kebbell Developments Ltd) v Leeds City Council [2018] EWCA Civ 450 [2018] 1 WLR 4625���������������������������� 61.5.2, 62.1.3 R (Keep the Horton General) v Oxfordshire Clinical Commissioning Group [2019] EWCA Civ 646 (2019) 22 CCL Rep 69������������������������������������������������������������������������������������������������������������������������������������������������������ 22.1.17, 62.1.4–5 R (Kehoe) v Secretary of State for Work and Pensions [2004] EWCA Civ 225 [2004] QB 1378 [2005] UKHL 48 [2006] 1 AC 42��������������������������������������������������������������������������������������������������������������������������������� 7.5.3, 59.5.7 R (Kelly) v Financial Ombudsman Service [2017] EWHC 3581 [2018] CTLC 107����������������������������������������������������������������� 51.2.4 R (Kelly) v Secretary of State for Justice [2008] EWCA Civ 177 [2009] QB 204���������������������������������������������������������� 7.6.6, 29.1.8 R (Kelly) v Warley Magistrates’ Court [2007] EWHC 1836 (Admin) [2008] 1 WLR 2001����������������������������������������� 7.6.11, 35.4.5 R (Kelsall) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWHC 459 (Admin)�������������� 55.1.16, 64.1.5 R (Kemp) v Denbighshire Local Health Board [2006] EWHC 181 (Admin) [2007] 1 WLR 639��������������������������� 19.2.4, 25.1.9–10 R (Kenneally) v Snaresbrook Crown Court [2001] EWHC Admin 968 [2002] QB 1169��������������������������������������������������������� 32.2.6 R (Kenny) v Leeds Magistrates Court [2003] EWHC 2963 (Admin) [2004] 1 All ER 1333���������������������������������������������������� 49.4.6 R (Kensington & Chelsea Royal LBC) v Secretary of State for Communities & Local Government [2012] EWHC 1785 (Admin)�������������������������������������������������������������������������������������������������������������������������������������������������� 18.2.5 R (Kent Pharmaceuticals Ltd) v Director of the Serious Fraud Office [2004] EWCA Civ 1494 [2005] 1 WLR 1302������������� 61.6.7 R (Kent) v Teesside Magistrates Court [2020] EWHC 304 (Admin)��������������������������������������������������������������������������� 18.2.7, 18.4.17 R (Kerr) v Cambridge City Council [2011] EWHC 1623 (Admin)������������������������������������������������������������������������������� 4.2.10, 61.7.5 R (Kerswell) v Lewisham LBC [2019] EWHC 754 (Admin)���������������������������������������������������������� 4.1.13, 17.3.12, 64.4.15, 65.1.11 R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355�������������������������������������������������������������������������������������������������� 1.2.2, 6.3.10, 9.1.15, 9.4.8, 15.1.3, 45.3.1, 58.1.2, 58.3.3, 58.3.5, 58.3.8, 58.3.16, 58.3.22, 59.2.4 R (KG) v SSHD [2018] EWHC 3665 (Admin)�������������������������������������������������������������������������������������������������������������������������� 25.2.5 R (Khajuria) v SSHD [2019] EWHC 1226 (Admin)���������������������������������������������������������������������������������������������������� 2.6.22, 50.4.13 R (Khalil) v Truro County Court [2011] EWHC 3335 (Admin)���������������������������������������������������������������������������������������������� 32.3.20 R (Khan) v Governor of HMP The Mount [2020] EWHC 1367 (Admin)��������������������������������������������������������������������� 18.5.1, 22.3.3 R (Khan) v London Borough of Newham [2001] EWHC Admin 589��������������������������������������������������������������������������������������� 24.4.8 R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129 [2004] 1 WLR 971�������������������������������������� 5.4.5, 9.1.3, 22.4.29 R (Khan) v Secretary of State for Justice [2020] EWHC 2084 (Admin)������������������������������������������������������������������� 59.8.11, 59.10.2 R (Khan) v SSHD [2008] EWHC 1367 (Admin)������������������������������������������������������������������������������������������������ 10.3, 10.3.8, 21.1.28 R (Khan) v SSHD [2014] EWHC 2494 (Admin) [2016] 1 WLR 747�������������������������������������������������������������������������������������� 36.3.18 R (Khan) v SSHD [2016] EWCA Civ 416������������������������������������������������������������������������������ 3.1.11, 3.1.16, 3.2.3, 10.3.1, 10.3.4–5, 10.4.5, 10.4.11, 19.3.8, 19.3.19 R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37��������������������� 4.4.8, 6.2.4, 22.4.18, 45.4.5, 51.1.9, 56.1.12, 56.2.4, 57.2.1, 57.3.6, 58.2.9, 61.3.1 R (Khazai) v Birmingham CC [2010] EWHC 2576 (Admin)������������������������������������������������������������������������������������������������������ 4.5.1 R (KI) v Brent LBC [2018] EWHC 1068 (Admin) (2018) 21 CCLR 294������������������������������������������������������� 10.4.7, 10.4.10, 39.2.4 R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380������������������������������������������������������� 5.1.1, 5.4.6, 16.3.5, 17.3.16, 32.4.15, 32.5.2, 36.3.10, 37.1.20, 59.6.3, 59.6.5 R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370 [2002] 4 PLR 66���������������������������������������������� 38.1.6 R (Kigen) v SSHD [2015] EWCA Civ 1286 [2016] 1 WLR 723��������������������������������������������������������������������� 2.2.7, 21.1.15, 26.3.14 R (Kilby) v Basildon District Council [2007] EWCA Civ 479 [2007] HLR 586����������������������������������������������������������� 34.5.2, 50.1.7 R (Kind) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWHC 1324 (Admin) [2006] QB 113����������������������������������������������������������������������������������������������������������������������������������������������������������������������� 24.4.27 R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384������������������������������ 7.1.2, 17.3.7, 17.4.3, 32.4.3, 32.4.10, 47.1.14, 50.3.1, 50.3.6, 59.5.7, 59.5.9, 61.1.4, 61.5.1, 61.6.2, 61.6.15 R (Kingston upon Hull City Council) v Secretary of State for Business, Innovation and Skills [2016] EWHC 1064 (Admin) [2016] PTSR 967������������������������������������������������������������������������������������������� 16.3.2, 36.1.6, 65.1.14 R (KM) v Cambridgeshire County Council [2012] UKSC 23 [2012] PTSR 1189��������������������������������� 2.6.15, 4.3.3, 4.5.11, 13.3.4, 14.1.16, 32.4.4, 56.1.11, 58.3.10, 64.4.11 R (Knight) v Secretary of State for Transport [2017] EWHC 1722 (Admin) [2017] ACD 102������������������������������������� 58.3.9, 61.6.7 R (Kobir) v SSHD [2011] EWHC 2515 (Admin)��������������������������������������������������������������������������������������������������������������������� 54.1.13 R (Kohler) v Mayor’s Office for Policing and Crime [2018] EWHC 1881 (Admin) [2018] ACD 102������������������������� 51.2.2, 62.3.8 R (Kombou) v Wood Green Crown Court [2020] EWHC 1529 (Admin)�������������������������������������������������������������������� 21.5.14, 63.3.1 R (Konodyba) v Kensington & Chelsea Royal LBC [2011] EWHC 2653 (Admin)���������������������������������������������������������������� 20.1.21 R (Koyama) v University of Manchester [2007] EWHC 1868 (Admin)���������������������������������������������������������������������� 21.2.21, 36.3.1 R (KR) v Secretary of State for Work and Pensions [2008] EWHC 1881 (Admin)������������������������������������������������������������������� 29.5.7 R (KS) v Haringey LBC [2018] EWHC 587 (Admin) [2018] HLR 41�������������������������������������������������������������������������������������� 57.4.5 R (Kumar) v Justice Secretary [2019] EWHC 444 (Admin) [2019] 4 WLR 47���������������������������������������������������������������������� 55.3.13 R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990 [2007] 1 WLR 536���������������������������������� 22.1.15 R (Kurdistan Workers Party) v SSHD [2002] EWHC 644 (Admin)�������������������������� 4.6.5, 23.1.4, 25.1.3, 25.1.13, 36.3.18, 36.3.23 R (Kuteh) v Upper Tribunal [2012] EWHC 2196 (Admin)������������������������������������������������������������������ 32.3.19, 36.4.5, 45.4.5, 56.1.9 R (Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin) [2019] 1 WLR 6660��������������������������������������������������� 59.5.6 R (KW) v Avon and Wiltshire MHP NHS Trust [2003] EWHC 919 (Admin) [2003] MHLR 315�������������������������������������������� 49.4.2 R (Kwik-fit Ltd) v Central Arbitration Committee [2002] EWCA Civ 512������������������������������������������������������������������������������� 13.4.5 R (L (A Minor)) v Governors of J School [2003] UKHL 9 [2003] 2 AC 633������������������������������������ 30.1.12, 34.1.6, 56.1.9, 58.3.25 R (L) v Buckinghamshire County Council [2019] EWHC 1817 (Admin)������������������������������������������������������������������� 55.2.12, 62.1.5

876

TABLE OF CASES R (L) v Chief Constable of Surrey [2017] EWHC 129 (Admin) [2017] 1 WLR 2047������������������������������������ 17.3.7, 24.2.9, 57.1.16 R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3 [2010] 1 AC 410�������������� 5.1.1, 39.3.14, 56.3.7, 58.4.5, 61.5.6 R (L) v Director of Public Prosecutions [2020] EWHC 1815 (Admin)������������������� 4.1.7, 4.1.11–12, 4.1.20, 32.3.4, 51.2.4, 64.4.11 R (L) v DPP [2013] EWHC 1752 (Admin) [2013] ACD 108���������������������������������������������������������������������������������������������������� 36.1.7 R (L) v Independent Appeal Panel of St Edward’s College [2001] EWHC 108 (Admin) [2001] ELR 542�������������� 18.1.23, 64.3.12 R (L) v Manchester City Council [2001] EWHC Admin 707 (2002) 5 CCLR 268����������������������������������������������������� 55.1.9, 55.1.24 R (L) v Secretary of State for Justice [2008] UKHL 68 [2009] AC 588������������������������������������������������������������������������ 4.5.11, 59.2.4 R (L) v SSHD [2003] EWCA Civ 25 [2003] 1 WLR 1230����������������������������������������������������������������������� 1.2.15, 6.2.3, 7.5.5, 16.6.4, 32.4.6, 36.4.11, 46.1.12, 50.2.2 R (L) v West London Mental Health NHS Trust [2014] EWCA Civ 47 [2014] 1 WLR 3103������������� 23.3.19, 31.4.9, 54.1.2, 61.5.9 R (Lambert) v London Borough of Southwark [2003] EWHC 2121 (Admin)������������������������������������������������������������������������ 22.4.20 R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2019] UKSC 58 [2020] 2 WLR 1������������������������������������������������������������������������������������������������������ 23.3.4, 49.4.3, 57.4.2, 57.4.4 R (Langley Park School for Girls Governing Body) v Bromley LBC [2009] EWCA Civ 734 [2010] 1 P & CR 197������������ 26.1.20 R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWCA Civ 1562 [2019] 4 WLR 151��������������������������������������������������������������������������������������������������������������������������������������������������������� 5.2.9, 49.4.5 R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 597 (Admin)����������������� 10.1.16, 16.4.6, 24.2.12, 56.2.10 R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290���������������������������������������������������������������������������������� 64.4.4 R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55 [2007] 2 AC 105����������������������������������������������������������� 59.10.4 R (Larkfleet Homes Ltd) v Rutland County Council [2015] EWCA Civ 597 [2015] PTSR 1369������������������������������������������� 13.5.16 R (Lasham Gliding Society Ltd) v Civil Aviation Authority [2019] EWHC 2118 (Admin)������������������������������������������������������ 13.3.6 R (Latif) v Social Security Commissioners [2002] EWHC 2355 (Admin)�������������������������������������������������������������������� 2.1.31, 22.2.9 R (Law Centres Federation Ltd) v Lord Chancellor [2018] EWHC 1588 (Admin)������������������������� 24.3.14, 51.1.10, 55.2.11, 57.4.5 R (Law Society) v Legal Services Commission [2007] EWCA Civ 1264 [2008] QB 737�������������������������������������������������������� 34.5.4 R (Law Society) v Legal Services Commission [2010] EWHC 2550 (Admin)������������������������������ 26.2.11, 26.3.16, 51.1.1, 54.1.15, 55.1.5, 58.3.24, 62.3.6 R (Law Society) v Lord Chancellor [2010] EWHC 1406 (Admin) [2011] 1 WLR 234������������������������������������������������������������ 53.1.7 R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649����������������������� 4.1.17, 5.2.3, 10.1.4, 13.1.3, 16.3.5, 17.2.2, 17.6.3–4, 17.6.6, 17.6.8, 19.2.17, 21.5.20, 22.1.41, 24.4.1, 32.5.2, 57.1.5–7, 57.1.9–10, 58.3.22, 58.3.26, 62.1.5, 62.3.6, 65.1.14 R (Laws) v Police Medical Appeal Board [2010] EWCA Civ 1099 [2011] ICR 242���������������������������������������������������� 49.4.3, 49.4.5 R (Lazarov) v Bulgaria [2018] EWHC 3050 (Admin)��������������������������������������������������������������������������������������� 3.2.13, 36.1.2, 49.3.8 R (LE (Jamaica) v SSHD [2012] EWCA Civ 597������������������������������������������������������������������������������������������������ 6.2.8, 16.4.7, 64.4.7 R (Lee) v Chief Constable of Essex [2012] EWHC 283 (Admin)��������������������������������������������������������������������������������������������� 32.3.7 R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52�������������������������� 6.2.6, 6.2.10, 7.6.6, 24.2.9, 25.3.1, 31.1.4, 59.4.3, 61.4.6, 64.2.8, 64.4.11 R (Legal Remedy UK Ltd) v Secretary of State for Health [2007] EWHC 1252 (Admin)������������������������������������������������������� 31.2.4 R (Legard) v Kensington and Chelsea RLBC [2018] EWHC 32 (Admin) [2018] PTSR 1415������������� 4.2.7, 10.4.10, 63.3.1, 63.3.3 R (Leighton Orient Football Club Ltd) v Newham LBC [2011] EWHC 3047 (Admin)������������������������������������������������������������ 18.5.9 R (Leighton) v Lord Chancellor [2020] EWHC 336 (Admin) [2020] ACD 50�������������������������������������� 3.1.12, 3.2.3, 4.6.1, 22.1.27, 32.5.4, 35.1.8, 55.2.12 R (Lemon Land Ltd) v London Borough of Hackney [2001] EWHC 336 (Admin) [2001] LGR 555�������������������������������������� 34.5.7 R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin) [2015] 1 WLR 4497�������������������������������������� 4.5.8, 5.2.9, 32.5.5, 48.1.11 R (Leung) v Imperial College of Science, Technology and Medicine [2002] EWHC 1358 (Admin) [2002] ELR 653��������������������������������������������������������������������������������������������������������������������������������������������������������� 64.3.19, 64.4.6 R (Levy) v Environment Agency [2002] EWHC 1663 (Admin) [2003] Env LR 245��������������������������������������������������� 13.1.3, 13.4.5 R (Lewin) v Financial Reporting Council Ltd [2018] EWHC 554 (Admin)�������������������������������������������������������������� 18.1.6, 18.2.3–4 R (Lewis) v Mid and North Shropshire Coroner [2009] EWCA Civ 1403 [2010] 1 WLR 1836��������������������������������������������� 30.1.12 R (Lewis) v Redcar & Cleveland Borough Council (No.1) [2008] EWCA Civ 746 [2009] 1 WLR 83������������������������������������ 30.1.3 R (Lewis) v Redcar and Cleveland Borough Council (No.2) [2010] UKSC 11 [2010] 2 AC 70������������� 5.1.1, 7.4.8, 24.4.7, 65.1.13 R (Lewis) v Senior Coroner for North West Kent [2020] EWHC 471 (Admin) (2020) 174 BMLR 160���������������������������������� 57.4.3 R (Lewisham LBC) v Secretary of State for Health [2013] EWCA Civ 1409 [2014] 1 WLR 514��������������������������������� 5.3.4, 46.1.5 R (LH) v Shropshire Council [2014] EWCA Civ 404 [2014] PTSR 1052��������������������������������������������������������������������������������� 62.2.9 R (LH) v SSHD [2019] EWHC 3457 (Admin)�������������������������������������������������������������������������������������������������������������������������� 56.1.5 R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin) [2020] 4 WLR 4������������������ 1.1.6, 11.1.22, 22.4.25, 26.1.9, 31.1.7, 34.1.2, 36.3.30 R (Liberty) v Director of Legal Aid Casework [2019] EWHC 1532 (Admin) [2019] 1 WLR 5185����������������������������������������� 16.6.5 R (Liberty) v Prime Minister [2019] EWCA Civ 1761 [2020] 1 WLR 1193����������������������������������������������� 11.1.22, 22.1.12, 23.3.23 R (Licensed Private Car Hire Associated Ltd) v Transport for London [2018] EWHC 331 (Admin)������������������������������������� 20.2.12 R (Lichfield Securities Ltd) v Lichfield District Council [2001] EWCA Civ 304 [2001] 3 PLR 33������������ 4.2.5, 4.4.1, 26.1.17–18, 26.4.4, 31.3.11, 41.1.9, 42.2.9 R (Lim) v SSHD [2006] EWHC 3004 (Admin)��������������������������������������������������������������������������������� 17.4.8, 22.4.18, 36.3.19, 49.1.3 R (Limbu) v SSHD [2008] EWHC 2261 (Admin) [2008] HRLR 1219��������������������������������������������� 6.2.12, 35.2.14, 39.2.13, 55.1.6 R (Limbuela) v SSHD [2004] EWCA Civ 540 [2004] QB 1440 [2005] UKHL 66 [2006] 1 AC 396�������������� 2.1.13, 2.6.23, 4.5.11, 7.6.3, 17.2.17, 22.2.27, 59.3.2, 59.3.5 R (Lin) v Barnet LBC [2007] EWCA Civ 132 [2007] HLR 440������������������������������������������������������������������������������������������������ 64.2.3 R (Linse) v Chief Constable of North Wales [2020] EWHC 1288 (Admin) [2020] 1 WLR 3540���������������� 10.1.7, 20.1.25, 25.1.15

877

TABLE OF CASES R (Liral Veget Training and Recruitment Ltd) v SSHD [2018] EWHC 2941 (Admin)����������������������������������������������������������� 61.6.14 R (Lisle-Mainwaring) v Kensington and Chelsea Royal LBC [2017] EWHC 904 (Admin) [2017] PTSR 850������������������������ 53.1.3 R (Litvinenko) v SSHD [2013] EWHC 3135 (Admin) [2014] ACD 25���������������������������������������������������������������������������������� 18.4.13 R (Litvinenko) v SSHD [2014] EWHC 194 (Admin) [2014] HRLR 6������������������������������������������������������������������������ 42.2.19, 64.5.2 R (Liverpool City Council) v Secretary of State for Health [2003] EWHC 1975 (Admin) [2004] LGR 635������������������������� 62.2.11 R (Liverpool City Council) v Secretary of State for Health [2017] EWHC 986 (Admin) [2017] PTSR 1564������������ 26.1.18, 26.2.6 R (Liverpool Open and Green Spaces Community Interest Co) v Liverpool City Council [2020] EWCA Civ 861���������������������������������������������������������������������������������������������������������������������������������� 4.5.10, 51.2.1, 65.1.11 R (Lloyd) v Barking and Dagenham LBC (2001) 4 CCLR 27��������������������������������������������������������������������������������������������������� 10.2.7 R (Lloyd) v Dagenham LBC [2001] EWCA Civ 533 (2001) 4 CCLR 196��������������������������� 10.2.7, 22.1.29, 24.4.28, 36.3.5, 62.3.6 R (LM) v SSHD [2020] EWHC 1587 (Admin)������������������������������������������������������������������������������������������������������������������������ 20.1.13 R (Lochailort Investments Ltd) v Mendip District Council [2019] EWHC 2633 (QB)��������������������������������������������� 20.1.13, 20.1.24 R (Lochailort Investments Ltd) v Mendip District Council [2020] EWHC 1146 (Admin)����������������������������������������������������� 13.5.16 R (Lock) v Leicester City Council [2012] EWHC 2058 (Admin)���������������������������������������������������������������������������������������������� 61.1.8 R (Lockerby) v Medway County Court [2018] EWHC 2496 (Admin) [2018] ACD 121������������������������������������������ 18.1.15, 18.1.32 R (London & South Eastern Railway Ltd) v British Transport Police Authority [2009] EWHC 460��������������������������������������� 7.6.19 R (London & South Eastern Railway Ltd) v British Transport Police Authority [2009] EWHC 1255 (Admin)����������� 18.2.6, 18.2.8 R (London and Continental Stations and Property Ltd) v Rail Regulator [2003] EWHC 2607 (Admin)�������������������������������������������������������������������������������������������������������������� 13.3.6, 13.4.5, 13.5.6, 58.4.7 R (London Borough of Hounslow) v School Admission Appeals Panel for the London Borough of Hounslow [2002] EWCA Civ 900 [2002] 1 WLR 3147��������������������������������������������������������������������������������������������������������������������������� 10.1.8 R (London Christian Radio Ltd) v Radio Advertising Clearance Centre [2013] EWCA Civ 1495 [2014] 1 WLR 307������������������������������������������������������������������������������������������������������������������������������������������������������� 16.6.5, 35.1.8 R (London Criminal Courts Solicitors Association) v Lord Chancellor [2014] EWHC 3020 (Admin) [2015] 1 Costs LR 7���������������������������������������������������������������������������������������������������������������������������������������������������������������� 62.3.6 R (London Criminal Courts Solicitors’ Association) v Lord Chancellor [2015] EWHC 295 (Admin) [2015] ACD 95 [2015] EWCA Civ 230 [2016] 3 All ER 296������������������������������������������������������������������������������������������������ 16.3.4 R (London Fire & Emergency Planning Authority) v Board of Medical Referees [2007] EWHC 2805 (Admin)������������������ 64.3.13 R (London Fire & Emergency Planning Authority) v Secretary of State for Communities and Local Government [2007] EWHC 1176 (Admin) [2007] LGR 591���������������������������������������������������������������� 64.3.12, 64.4.14 R (London Reading College Ltd) v SSHD [2010] EWHC 2561 (Admin) [2010] ELR 809������������������������������������������������������ 61.6.7 R (London School of Science and Technology) v Pearson Education Ltd [2019] EWHC 3129 (Admin)��������������������� 34.1.1, 57.3.7 R (Longato) v Camberwell Green Magistrates’ Court [2009] EWHC 691 (Admin)����������������������������������������������������������������� 61.1.8 R (Longfield Care Homes Ltd) v HM Coroner for Blackburn [2004] EWHC 2467 (Admin)��������������������������������������������������� 24.4.4 R (Lord Chancellor) v Chief Land Registrar [2005] EWHC 1706 (Admin) [2006] QB 795��������������������������������������� 2.1.32, 24.2.15 R (Lord v SSHD [2003] EWHC 2073 (Admin)��������������������������������������������������������������������������������������������������������������������������� 2.1.9 R (Loucif) v SSHD [2011] EWHC 3640 (Admin)��������������������������������������������������������������������������������������������������������������������� 18.3.4 R (Low) v Independent Adjudicator [2009] EWHC 2253 (Admin)����������������������������������������������������������������������������������������� 61.7.11 R (Lowden) v Gateshead Magistrates’ Court [2016] EWHC 3536 (Admin) [2017] 2 Cr App R 1������������������������������������������� 32.3.9 R (Lowe) v Family Health Services Appeal Authority [2001] EWCA Civ 128����������������������������������������������������������������������� 64.3.14 R (Ludlam) v Leicester Crown Court [2008] EWHC 2884 (Admin)��������������������������������������������������������������������������������������� 32.2.12 R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245����������������������������������������������������������������� 6.2.3, 6.2.6, 7.6.6, 25.2.5, 25.2.7, 27.3.14, 33.2.27, 35.2.14, 44.2.1, 45.2.2, 45.3.8, 50.4.2, 50.4.6, 50.4.13, 53.1.5, 54.2.7, 55.1.28, 56.1.10, 59.4.4, 61.3.1, 61.6.7 R (Luminar Leisure Ltd) v Norwich Crown Court [2004] EWCA Civ 281 [2004] 1 WLR 2512��������������������������������������������� 24.4.9 R (Lumsdon) v Legal Services Board [2015] UKSC 41 [2016] AC 697����������������� 16.3.5, 37.1.10, 37.1.17, 37.1.21, 58.5.1, 58.5.4 R (Lunn) v HMRC [2011] EWHC 240 (Admin) [2011] STC 1028��������������������������������������������������������� 4.3.3, 31.2.5, 64.2.3, 64.2.9 R (Lunt) v Liverpool City Council [2009] EWHC 2356 (Admin) [2010] RTR 38�������������������������������������������������������������������� 49.3.5 R (Lupepe) v SSHD [2017] EWHC 2690 (Admin) [2017] ACD 138�������������������������������������������������������������������������������������� 48.1.12 R (Luton Borough Council) v Secretary of State for Education [2011] EWHC 217 (Admin) [2011] ELR 222��������� 61.1.19, 62.3.7 R (LW) v Sodexo Ltd [2019] EWHC 367 (Admin) [2019] 1 WLR 5654���������������������������������������������� 9.1.17, 32.5.7, 59.6.2, 59.6.7 R (LXD) v Chief Constable of Merseyside [2019] EWHC 1120 (Admin)������������������������������������������������������������������ 20.2.1, 20.2.12 R (LXD) v Chief Constable of Merseyside [2019] EWHC 1685 (Admin)��������������������������������������������� 2.1.8, 10.2.7, 17.3.1, 17.3.6, 17.3.9, 17.3.16, 17.4.11, 59.2.3 R (LXD) v Chief Constable of Merseyside [2019] EWHC 1821 (Admin)���������������������������������������������������������������� 22.1.18, 64.4.10 R (Lynch) v General Dental Council [2003] EWHC 2987 (Admin) [2004] 1 All ER 1159������������������������������������������������������ 17.6.5 R (M) v Birmingham City Council [2008] EWHC 1863 (Admin) [2009] 2 FCR 327�������������������������������������������������������������� 6.2.11 R (M) v Chief Constable of Sussex [2019] EWHC 975 (Admin) [2019] ACD 67���������������������������������������� 22.1.26, 34.5.2, 42.2.19 R (M) v Commissioner of Police of the Metropolis [2001] EWHC Admin 553������������������������������������������������ 9.1.8, 31.4.4, 41.2.12 R (M) v Criminal Injuries Compensation Authority [2002] EWHC 2646 (Admin)����������������������������������������������������������������� 57.3.12 R (M) v Croydon LBC [2012] EWCA Civ 595 [2012] 1 WLR 2607���������������������������������� 18.1.3, 18.3.9, 18.5.4, 18.5.7–9, 19.1.11 R (M) v Gateshead Metropolitan Borough Council [2006] EWCA Civ 221 [2006] QB 650���������������������������������������������������� 4.5.10 R (M) v Hackney LBC [2011] EWCA Civ 4 [2011] 1 WLR 2873���������������������������������������������������������������������������������� 7.6.6, 44.3.3 R (M) v Hammersmith Magistrates’ Court [2017] EWHC 1359 (Admin) [2017] ACD 86������������������������������������������������������� 51.1.9 R (M) v Haringey Independent Appeal Panel [2010] EWCA Civ 1103����������������������������������������������������������������������������������� 64.4.15 R (M) v Homerton University Hospital [2008] EWCA Civ 197���������������������������������������������������������������������������������������������� 23.1.10 R (M) v Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 [2017] 4 WLR 30��������������������������������������� 49.3.5 R (M) v Isleworth Crown Court [2005] EWHC 363 (Admin)��������������������������������������������������������������������������������������������������� 32.2.5

878

TABLE OF CASES R (M) v Islington LBC [2004] EWCA Civ 235 [2005] 1 WLR 884������������������������������������������������������������������������������ 6.2.4, 23.2.12 R (M) v Lambeth LBC [2008] EWHC 1364 (Admin) [2009] UKSC 8 [2009] 1 WLR 2557������������������������������������ 22.4.18, 55.1.17 R (M) v London Borough of Bromley [2002] EWCA Civ 1113 [2002] 3 FCR 193������������������������������������ 23.3.25, 36.3.14, 36.3.18 R (M) v Nottinghamshire Healthcare NHS Trust [2002] EWHC 1400 (Admin) [2003] MHLR 88������������������������������������������ 51.2.1 R (M) v Secretary of State for Health [2003] EWHC 1094 (Admin) [2003] UKHRR 746������������������������������������������� 9.1.1, 12.2.11 R (M) v Slough Borough Council [2008] UKHL 52 [2008] 1 WLR 1808��������������������������������������������������������������������������������� 2.6.14 R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58 [2016] 1 WLR 4550��������������������������� 5.2.3, 14.1.6, 55.2.10, 55.2.12, 59.8.18, 61.1.7 R (MA) v SSHD [2011] EWCA Civ 1446���������������������������������������������������������������������������������������������������������������������������������� 4.5.10 R (Mabanaft Ltd) v Secretary of State for Energy & Climate Change [2009] EWCA Civ 224������������������������������������������������� 13.4.6 R (MacDonald) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 1783 (Admin) [2019] ACD 97���������������������������������������������������������������������������������������������������������������������������������������������� 13.4.6, 39.3.7, 39.3.13 R (Machi) v Legal Services Commission [2001] EWCA Civ 2010 [2002] 1 WLR 983������������������������������������������������������������ 41.1.6 R (Mackaill) v Independent Police Complaints Commission [2014] EWHC 3170 (Admin) [2015] ACD 19�������������������������� 63.3.2 R (Mackay) v Parole Board [2019] EWHC 1178 (Admin)�������������������������������������������������� 17.3.15, 32.4.5, 49.4.3, 57.3.4–5, 57.4.4 R (Mackenzie) v Secretary of State for Justice [2009] EWCA Civ 669������������������������������������������������������������������������������������� 51.2.5 R (MacNeil) v Parole Board [2001] EWCA Civ 448������������������������������������������������������������������������������������������������������� 5.1.4, 9.1.16 R (Macrae) v Herefordshire District Council [2012] EWCA Civ 457��������������� 23.3.21, 26.2.11, 64.1.9, 64.3.11, 64.4.15, 64.5.3–4 R (Madan) v SSHD [2007] EWCA Civ 770 [2007] 1 WLR 2891��������������������������������������������������������������������������������������������� 10.3.3 R (Maftah) v Secretary of State for Foreign Affairs [2011] EWCA Civ 350 [2012] QB 477�������������������������������������������������� 22.4.18 R (Mahfouz) v General Medical Council [2004] EWCA Civ 233����������������������������������������������������������������������� 4.6.4, 10.1.8, 16.5.1 R (Mahmood) v SSHD [2001] 1 WLR 840��������������������������������������������������������������������������������������������������� 9.1.16, 24.2.12, 32.4.10, 58.3.14, 58.5.3, 58.5.11, 59.1.3 R (Mahmood) v Upper Tribunal [2020] EWCA Civ 717������������������������������������������������������������������������������������������������� 2.3.1, 3.2.24 R (Maiden Outdoor Advertising Ltd) v Lambeth LBC [2003] EWHC 1224 (Admin)������������������������������������������������ 16.2.2, 17.3.14 R (Majed) v Camden LBC [2009] EWCA Civ 1029���������������������������������������������������������������������������������������� 4.3.2, 24.3.12, 61.1.21 R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin) [2008] 4 All ER 403������������������������������������������������������ 17.2.8 R (Manchester City Council) v Secretary of State for Environment, Food & Rural Affairs [2007] EWHC 3167 (Admin)�������������������������������������������������������������������������������������������������������������������������������������������������� 56.3.3 R (Manchester City Council) v St Helens Borough Council [2009] EWCA Civ 1348 [2010] PTSR 1157����������������������������� 23.3.21 R (Manchester Ship Canal Co Ltd) v Environment Agency [2012] EWHC 1643 (Admin)�������������������������������������������������������� 6.2.8 R (Mandic-Bozic) v British Association for Counselling and Psychotherapy [2016] EWHC 3134 (Admin)������������������������� 54.1.21 R (Mann) v Serious Organised Crime Agency [2010] EWHC 1760 (Admin)��������������������������������������������������������������������������� 28.2.5 R (Mann) v Westminster Magistrates’ Court [2010] EWHC 48 (Admin)���������������������������������������������������������������������������������� 28.2.3 R (Mansfield District Council) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 1794 (Admin) [2019] PTSR 540��������������������������������������������������������������������������������������������������������������������� 48.1.1 R (Manson) v Ministry of Defence [2005] EWCA Civ 1678��������������������������������������������������������������������������������������������������� 36.3.23 R (Manydown Ltd) v Basingstoke & Deane Borough Council [2012] EWHC 977 (Admin)���������������������������������������� 49.3.5, 53.1.9 R (Mapah) v SSHD [2003] EWHC 306 (Admin) [2003] Imm AR 395����������������������������������������������������������������������������������� 61.7.11 R (Maqsood) v Special Adjudicator [2002] Imm AR 268������������������������������������������������������������������������������������������ 17.3.12, 61.1.24 R (March) v Secretary of State for Health [2010] EWHC 765 (Admin) (2010) 116 BMLR 57������������������������������������ 29.4.7, 49.3.5 R (Marchiori) v Environment Agency [2002] EWCA Civ 3 [2002] EuLR 225����������������������������������������������������������������������� 34.4.15 R (Maritime Heritage Foundation) v Secretary of State for Defence [2019] EWHC 2513 (Admin) [2019] ACD 140���������������������������������������������������������������������������������������������������������������������������������������������� 17.1.3, 41.2.9, 64.3.5 R (Marsh) v Lincoln District Magistrates Court [2003] EWHC 956 (Admin)������������������������������������������������������������� 61.1.24, 65.1.8 R (Marshall) v East Dorset District Council [2018] EWHC 226 (Admin) [2018] PTSR 1508������������������������������������������������� 18.1.6 R (Martin) v Harrow Crown Court [2007] EWHC 3193 (Admin)������������������������������������������������������������������������������� 20.1.24, 49.4.6 R (Martin) v Legal Services Commission [2007] EWHC 1786 (Admin)�������������������������������������������������������������������������������� 64.3.17 R (Martin) v SSHD [2003] EWHC 1512 (Admin)��������������������������������������������������������������������������������������������������������������������� 36.4.6 R (MAS Group Holdings Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2019] EWHC 158 (Admin)���������������������������������������������������������������������������������������������������������������������������� 8.1.9, 17.3.11, 50.4.1 R (Mason) v Crown Court at Winchester [2018] EWHC 1182 (Admin) [2018] 1 WLR 3850�������������������������������������� 61.2.2, 61.6.7 R (Mathialagan) v Southwark LBC [2004] EWCA Civ 1689�������������������������������������������������������������������������������������������������� 61.1.24 R (Matthews) v City of York Council [2018] EWHC 2102 (Admin)������������������������������������������������������������� 4.1.20, 17.3.15, 65.1.11 R (Matthias Rath BV) v Advertising Standards Authority Ltd [2001] HRLR 436�������������������������������������������������������������������� 19.3.7 R (Maughan) v Oxfordshire Senior Coroner [2019] EWCA Civ 809 [2019] QB 1218����������������������������������������������������������� 22.2.10 R (Mavalon Care Ltd) v Pembrokeshire County Council [2011] EWHC 3371 (Admin) (2012) 15 CCLR 229�������������� 4.4.2, 6.2.9, 34.5.2, 56.1.3, 57.2.2 R (Mawbey) v Lewisham LBC [2019] EWCA Civ 1016 [2020] PTSR 164������������������������������������������������������������������ 16.4.1, 29.1.6 R (Maxhuni) v Commissioner for Local Administration for England [2002] EWCA Civ 973 [2003] LGR 113���������������������� 4.5.10 R (Maxwell) v Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1236 [2012] PTSR 884��������������������������������������������������������������������������������������������������������������������������������������������������������� 30.1.2, 61.5.9 R (Mayor of London) v Enfield LBC [2008] EWCA Civ 202 [2008] LGR 615���������������������������������������������������������������������� 55.3.11 R (Mazarona Properties Ltd) v Financial Ombudsman Service [2017] EWHC 1135 (Admin) [2017] ACD 94����������������������� 47.1.7 R (McAtee) v Secretary of State for Justice [2018] EWCA Civ 2851 [2019] 1 WLR 3766������������������������������������������������������ 3.2.17 R (McAuley) v Coventry Crown Court [2012] EWHC 680 (Admin) [2012] 1 WLR 2766�������������������������������������������� 2.1.31, 7.6.6 R (McCann) v Birmingham City Council [2004] EWHC 2156 (Admin)�������������������������������������������������������������������������������� 32.3.18 R (McCarthy and Stone Retirement Lifestyles Ltd) v Mayor of London [2018] EWHC 1202 (Admin) [2018] PTSR 1996������������������������������������������������������������������������������������������������������������������������������������������������������� 4.1.19, 21.4.5

879

TABLE OF CASES R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 [2020] 2 All ER 813��������������������������������������������������������������������������������������������������������������������������� 6.3.11, 9.2.11, 12.2.5, 13.5.7, 29.3.25, 37.1.6, 58.5.10 R (McCormack) v St Edmund Campion Catholic School Governors [2012] EWHC 3928 (Admin) [2013] ELR 169������������� 57.2.2 R (McCourt) v Parole Board [2020] EWHC 433 (Admin)������������������������������������������������������������������������������������������� 20.1.14, 20.2.7 R (McCourt) v Parole Board [2020] EWHC 2320 (Admin)������������������������������������������������������������������ 1.3.5, 11.1.22, 14.3.9, 21.4.4, 38.2.5, 38.2.8, 38.2.21 R (McDonagh) v Enfield LBC [2018] EWHC 1287 (Admin) [2018] HLR 43������������������������������������������������������������������������ 25.1.15 R (McDonagh) v Hackney LBC [2012] EWHC 373 (Admin)��������������������������������������������������������������������������������������������������� 31.2.7 R (McDonald) v Kensington and Chelsea Royal LBC [2011] UKSC 33 [2011] PTSR 1266����������������������������������� 23.1.17, 56.1.11, 59.6.2, 59.6.10 R (McE) v Prison Service of Northern Ireland [2009] UKHL 15 [2009] AC 908������������������������������������������������������� 23.2.12, 59.6.7 R (McGrath) v Secretary of State for Work and Pensions [2012] EWHC 1042 (Admin)�������������������������������������������� 11.1.10, 58.2.1 R (McHale) v Secretary of State for Justice [2010] EWHC 3657 (Admin)������������������������������������������������������������������������������� 36.4.6 R (McIntyre) v Gentoo Group Ltd [2010] EWHC 5 (Admin)�������������������������������������������������������������������������� 34.1.3, 34.5.2, 36.3.16 R (McIntyre) v Parole Board [2013] EWHC 1969 (Admin) [2014] ACD 17���������������������������������������������������������������������������� 61.7.9 R (McKenzie) v Leeds Crown Court [2020] EWHC 1867 (Admin) [2020] 4 WLR 106���������������������������������������������� 7.6.12, 21.5.1 R (McKenzie) v Waltham Forest LBC [2009] EWHC 1097 (Admin)����������������������������������������������������������������������������������������� 4.5.7 R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510 [2002] QB 1129������������������������������������������������ 49.3.5 R (McLennan) v Medway Council [2019] EWHC 1738 (Admin) [2019] PTSR 2025�������������������������������������������������� 56.1.2, 57.4.4 R (McMorn) v Natural England [2015] EWHC 3297 (Admin) [2016] PTSR 750����������������������������� 6.2.3, 18.4.17, 32.4.8, 38.2.14, 48.1.12, 55.1.20, 56.1.3, 58.3.25 R (McNally) v Secretary of State for Education [2001] EWCA Civ 332 [2001] ELR 773������������������������������������������������������� 35.2.8 R (McShane) v Secretary of State for Justice [2018] EWHC 2049 (Admin) [2018] ACD 110��������� 41.2.3, 54.1.12, 54.1.19, 54.2.7 R (McVey) v Secretary of State for Health [2009] EWHC 3084 (Admin)������������������������������������������������������������������������������� 17.5.16 R (McVey) v Secretary of State for Health (No.2) [2010] EWHC 1225 (Admin)��������������������������������������������������������� 22.2.8, 22.3.2 R (MD (Afghanistan) v SSHD [2012] EWCA Civ 194 [2012] 1 WLR 2422���������������������������������������������������������������������������� 3.2.17 R (MD (Gambia)) v SSHD [2011] EWCA Civ 121������������������������������������������������������������������������������������������������������������������� 49.4.3 R (Med Chambers Ltd) v Medco Registration Solutions Ltd [2017] EWHC 3258 (Admin)�������������� 20.1.16, 26.1.8, 26.2.6, 34.1.1, 34.5.2, 36.3.11, 36.3.32, 61.1.25 R (Medical Justice) v SSHD [2010] EWHC 1425 (Admin)����������������������������������������������������������������������������������������� 20.2.2, 20.2.13 R (Medical Justice) v SSHD [2011] EWCA Civ 269 [2011] 1 WLR 2852�������������������������������������������������������������������������������� 18.4.5 R (Medical Justice) v SSHD [2011] EWCA Civ 1710�������������������������������������������������������������������������� 5.2.4, 7.5.1, 18.1.10, 22.2.19, 32.5.2, 60.1.12, 61.7.1 R (Medical Justice) v SSHD [2017] EWHC 2461 (Admin) [2017] 4 WLR 198����������������������������������������������������������� 5.2.9, 46.1.17 R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin)������������������������������������� 4.6.4, 16.5.2, 38.4.5, 58.3.13, 62.2.10, 62.3.5–6 R (Medway Soft Drinks Ltd) v HMRC [2019] EWCA Civ 1041���������������������������������������������������������������������������������������������� 18.5.7 R (Mellor) v Secretary of State for Communities & Local Government (No.2) [2009] EWCA Civ 1201������������������ 21.1.6, 64.2.24 R (Mellor) v SSHD [2001] EWCA Civ 472 [2002] QB 13�������������������������������������������������������������������������������������������������������� 9.1.16 R (Mencap) v Parliamentary & Health Service Ombudsman [2010] EWCA Civ 875������������������������������������� 21.2.3, 21.2.10, 22.2.3 R (Mencap) v Parliamentary & Health Service Ombudsman [2011] EWHC 3351 (Admin)��������������������������������������� 18.4.2, 22.4.31 R (Mendes) v SSHD [2020] EWCA Civ 924������������������������������������������������������������������������������������������������� 20.1.22, 23.3.26, 36.1.3 R (Mercury Tax Group Ltd) v HM Commissioners for Revenue and Customs [2008] EWHC 2721 [2009] STC 743����������������������������������������������������������������������������������������������������������������������������������������������������������������������� 65.1.8 R (Meredith) v Merthyr Tydfil County Borough Council [2002] EWHC 634 (Admin)������������������������������������ 2.1.32, 22.3.4, 49.3.5 R (Merida Oil Traders Ltd) v Central Criminal Court [2017] EWHC 747 (Admin) [2017] 1 WLR 3680�������������������������������������������������������������������������������������������������������������������������������������� 22.1.26, 39.3.8, 45.3.8, 46.1.6, 52.2.5, 65.1.8 R (Merlot 73 Ltd) v City of Westminster Magistrates’ Court [2013] EWHC 3416 (Admin) [2014] LLR 377������������������������� 20.1.8 R (Merritt) v Peterborough Magistrates’ Court [2009] EWHC 467 (Admin)���������������������������������������������������������������������������� 41.2.3 R (Metro Construction Ltd) v Barnet LBC [2009] EWHC 2956 (Admin)��������������������������������������������������������������������� 17.1.5, 52.2.4 R (MH) v SSHD [2009] EWHC 2506 (Admin)����������������������������������������������������������������������������������������������������������� 17.3.6, 17.3.12 R (Miah) v Independent Police Complaints Commission [2017] EWCA Civ 2108 [2018] 1 WLR 3817������������������� 22.4.18, 64.3.4 R (Michael) v Governor of HMP Whitemoor [2020] EWCA Civ 29 [2020] 1 WLR 2524������������������������������������������ 4.2.3, 4.3.2–3, 23.3.22, 49.3.1 R (Michalides) v Chief Constable of Merseyside [2019] EWHC 1434����������������������������������������������������������� 5.3.4, 55.3.14, 64.3.14 R (Midcounties Cooperative Ltd) v Forest of Dean District Council [2007] EWHC 1714 (Admin)���������������������������� 64.2.5, 64.5.2 R (Midcounties Cooperative Ltd) v Forest of Dean District Council [2015] EWHC 1251 (Admin)�������������������������� 10.4.3, 10.4.11 R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin)��������������������������������������������������������������������������������������������������������� 17.2.17, 17.6.7, 22.1.26, 43.1.3, 43.1.7, 55.1.10, 55.1.16, 55.1.20 R (Middleton) v Cambridge Magistrates’ Court [2012] EWHC 2122 (Admin)����������������������������������������������������������������������� 58.3.20 R (Middleton) v West Somerset Coroner [2004] UKHL 10 [2004] 2 AC 182��������������������������������� 4.3.3, 9.3.6–7, 23.2.10, 59.2.1–4 R (Miller) v College of Policing [2020] EWHC 225 (Admin)��������������������������������������� 5.2.11, 5.3.2, 31.1.1, 32.5.12, 35.1.8, 59.7.3 R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801�������������������������������������������������������������������������������������������������������������������������������������������� 7.7.4, 16.5.6, 23.3.19, 31.1.4, 45.4.5, 61.3.3, 61.4.2, 61.5.9, 61.6.2, 61.6.9–10, 63.3.2, 63.3.4

880

TABLE OF CASES R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373������������������������������������ 1.1.1, 1.1.5, 1.2.6, 2.1.7, 2.1.13, 5.2.10, 5.3.5, 6.1.7, 7.1.3, 7.1.5, 7.1.8–9, 7.1.11, 7.3.2, 7.4.1–2, 7.4.4, 7.6.8, 7.6.19, 13.1.1, 13.1.3, 13.5.5, 17.2.3, 17.3.7, 17.3.21, 22.2.10, 22.2.12, 22.2.18, 26.1.9, 33.2.31, 34.3.3, 34.4.6–11, 34.4.18, 36.1.9, 44.1.5, 44.3.2, 46.1.4, 47.1.5, 60.1.1–4, 60.1.7–8, 60.1.10–11 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61�������������������������������������������������������������������������������������������������������������������� 4.6.2, 6.1.2–3, 6.1.7, 6.3.16, 7.2.7, 7.4.1, 8.1.2, 12.3.9, 15.3.2, 22.2.7, 24.2.9, 26.1.9, 29.2.1, 29.3.11, 33.1.4, 34.4.16, 35.2.19, 46.1.17, 48.1.14, 53.1.6 R (Mills) v Birmingham Magistrates Court [2005] EWHC 2732 (Admin)�������������������������������������������������������������������������������� 18.2.7 R (Mills) v Sussex Police [2014] EWHC 2523 (Admin) [2015] 1 WLR 2199���������������������������������������������������������������� 4.2.7, 65.1.8 R (Milner) v South Central Strategic Health Authority [2011] EWHC 218 (Admin)������������������������������������������������������ 6.2.7, 50.1.6 R (Milton Keynes Council) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1575������������������������������������������������������������������������������������������������������������������������������������ 62.2.10–11, 62.3.11 R (Ministry of Defence) v Wiltshire & Swindon Coroner [2005] EWHC 889 (Admin) [2006] 1 WLR 134������������������������������������������������������������������������������������������������� 17.5.12, 17.5.16, 18.4.1, 19.3.8, 22.1.5, 22.2.28 R (Minter) v Chief Constable of Hampshire Constabulary [2011] EWHC 1610 (Admin) [2012] 1 WLR 1157��������������������� 11.1.10 R (Miranda) v SSHD [2016] EWCA Civ 6 [2016] 1 WLR 1505������������������������������������������������������ 12.2.10, 13.1.5, 13.4.1, 13.5.12, 37.1.14, 52.2.5–6, 59.7.3 R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549�������������������� 7.4.1, 7.6.12, 35.1.2 R (Mitocariu) v Central and North West London NHS Trust [2018] EWHC 126 (Admin) [2018] PTSR 1287��������������������������������������������������������������������������������������������������������������������������������������� 22.1.26, 55.1.5, 55.1.18 R (MK (Iran)) v SSHD [2010] EWCA Civ 115 [2010] 1 WLR 2059���������������������������������������������������������������������������������������� 9.2.13 R (MK (Iran)) v SSHD [2011] EWCA Civ 671 [2012] 1 WLR 765������������������������������������������������������������������������������������������ 4.5.10 R (MK) v SSHD [2012] EWHC 1896 (Admin)������������������������������������������������������������������������������������������������������������������������� 32.5.6 R (MK) v SSHD [2017] EWHC 1365 (Admin) [2017] Imm AR 1425�������������������������������������������������������������������������� 50.4.6, 57.3.8 R (MK) v SSHD [2019] EWHC 3573 (Admin) [2020] 4 WLR 37������������������������������������������������������������������ 13.5.2, 32.5.3, 57.3.12 R (MM (Lebanon)) v SSHD [2017] UKSC 10 [2017] 1 WLR 771��������������������������� 3.2.24, 22.2.8, 23.2.10, 32.5.9, 48.1.11, 59.6.4 R (MM) v Secretary of State for Work and Pensions [2012] EWHC 2106 (Admin)����������������������������������������������������������������� 17.3.6 R (MM) v SSHD [2015] EWHC 3513 (Admin) [2016] 1 WLR 2858��������������������������������������������������������������������������������������� 52.2.5 R (MN (Tanzania)) v SSHD [2011] EWCA Civ 193 [2011] 1 WLR 3200������������������������������������������������������ 11.1.21, 32.4.6, 49.1.4 R (Modaresi) v Secretary of State for Health [2013] UKSC 53 [2013] PTSR 1031�������������������������������� 7.1.3, 35.1.3, 53.1.5, 59.4.3 R (Mohamad) v Special Adjudicator [2002] EWHC 2496 (Admin)���������������������������������������������������������������������������������������� 22.4.10 R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No.1) [2008] EWHC 2048 (Admin) [2009] 1 WLR 2579������������������������������������������������������������������������������������������ 6.3.21, 7.1.18, 7.6.4 R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2010] EWCA Civ 65��������������������������� 22.4.27 R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2010] EWCA Civ 158 [2011] QB 218����������������������������������������������������������������������������������������������������������������������������������������������������������������������� 10.1.22 R (Mohamed) v SSHD [2018] EWHC 3547 (Admin) [2019] ACD 33�������������������������������������������������������������������������������������� 39.2.6 R (Mohamed) v Waltham Forest LBC [2020] EWHC 1083 (Admin) [2020] 1 WLR 2929������������������������������������������������������ 32.3.9 R (Mohammad) v SSHD 24th January 2002 unrep�������������������������������������������������������������������������������������������������������������������� 39.1.8 R (Molinaro) v Kensington and Chelsea Royal LBC [2001] EWHC 896 (Admin) [2002] LGR 336������������� 34.2.11, 34.5.2, 34.5.7 R (Mondelly) v Metropolitan Police Commissioner [2006] EWHC 2370 (Admin)������������������������������������������������������������������ 32.3.7 R (Monica) v DPP [2018] EWHC 3508 (Admin) [2019] QB 1019��������������������������������������������������������������� 13.5.17, 29.3.17, 32.3.4 R (Montana) v SSHD [2001] 1 WLR 552���������������������������������������������������������������������������������������������������������������������������������� 9.1.16 R (Montpeliers & Trevors Association) v City of Westminster [2005] EWHC 16 (Admin) [2006] LGR 304�������������������������������������������������������������������������������������������������������������� 18.1.10, 22.4.17, 61.1.21, 62.2.10, 62.3.5 R (Moore) v Secretary of State for Communities and Local Government [2014] EWHC 3592 (Admin) [2015] ACD 44������������������������������������������������������������������������������������������������������������������������������������������������������������������������ 34.5.7 R (Mooyer) v Personal Investment Authority Ombudsman Bureau Ltd [2001] EWHC Admin 247����������� 34.1.3–4, 34.5.1, 36.3.32 R (Moreton) v Medical Defence Union Ltd [2006] EWHC 1948 (Admin)������������������������������������������������������������������� 34.1.4, 34.2.8 R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2002] UKHL 21 [2003] 1 AC 563�������������� 5.2.8, 7.4.7, 7.6.11, 7.8.3, 29.3.8, 35.1.8, 35.2.5, 35.2.9, 35.2.13, 35.4.5, 61.7.5 R (Morge) v Hampshire County Council [2010] EWCA Civ 150 [2010] Env LR 546��������������������������������������������� 20.1.24, 20.1.28 R (Morge) v Hampshire County Council [2011] UKSC 2 [2011] 1 WLR 268������������������������������������������������������������ 46.1.19, 56.2.5 R (Moris) v Westminster Magistrates’ Court [2018] EWHC 3954 (Admin)�������������������������������������������������������������������������������� 9.5.6 R (Morita) v SSHD [2019] EWHC 758 (Admin)��������������������������������������������������������������������������������������������������������������������� 26.2.13 R (Morris) v Newport City Council [2009] EWHC 3051 (Admin)������������������������������������������������������������������������������ 62.3.8, 64.3.12 R (Morris) v Trafford Healthcare NHS Trust [2006] EWHC 2334 (Admin) (2006) 9 CCLR 648������������������������������������������ 65.1.14 R (Morris) v Westminster City Council [2003] EWHC 2266 (Admin) [2004] HLR 265���������������������������������������������������������� 12.2.2 R (Morris) v Westminster City Council [2004] EWHC 1199 (Admin)���������������������������������������������������������������������������������������� 4.5.5 R (Morris) v Westminster City Council [2005] EWCA Civ 1184 [2006] 1 WLR 505��������������������������������������������������� 9.4.1, 12.2.11 R (Morris) v Woolwich Magistrates Court [2005] EWHC 781 (Admin)����������������������������������������������������������������������������������� 22.2.9 R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947�������������������������� 24.3.12, 61.1.12, 61.2.2, 62.1.1–2, 62.2.1–3, 62.2.5, 62.2.11, 61.3.1–62.3.4, 62.3.6 R (Mott) v Environment Agency [2018] UKSC 10 [2018] 1 WLR 1022�������������������������������������������� 23.3.9, 37.1.15, 58.4.5, 59.9.4

881

TABLE OF CASES R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166���������������������������������������������������������������������������������������������������� 2.1.28, 18.3.3, 18.3.5, 19.3.8, 21.1.23, 24.3.3, 24.3.11, 24.3.15, 38.2.12, 56.1.7, 56.3.5 R (Mowlem Plc) v HM Assistant Deputy Coroner for Avon [2005] EWHC 1359 (Admin)������������������������������������������ 5.2.10, 24.4.4 R (M-P) v London Borough of Barking [2002] EWHC 2483 (Admin) [2003] ELR 144�������������������������������������������������������� 22.1.24 R (MP) v Secretary of State for Health and Social Care [2018] EWHC 3392 (Admin)�������������������������������������������� 10.4.8–9, 62.2.6 R (MP) v Secretary of State for Justice [2012] EWHC 214 (Admin)���������������������������������������������������������������� 6.2.8, 6.3.20, 50.4.15 R (Mpaini) v Highbury Corner Magistrates’ Court [2019] EWHC 874 (Admin)���������������������������������������������������������������������� 4.1.19 R (MR (Pakistan)) v SSHD [2019] EWHC 3567 (Admin) [2020] 4 WLR 39��������������������������������������������������������������� 32.5.2, 32.5.4 R (MS (India)) v SSHD [2017] EWCA Civ 1190 [2018] 1 WLR 389����������������������������������������������������������������������������� 6.2.5, 16.4.5 R (MS) v Hammersmith and Fulham LBC [2019] EWHC 3895 (Admin)������������������������������������������������������������������������������� 20.1.21 R (MS) v SSHD [2010] EWHC 2400 (Admin)������������������������������������������������������������������������������������������������ 10.3.3, 10.3.5, 10.3.10 R (MS) v SSHD [2019] EWCA Civ 1340������������������������������������������������������������������������������������������������������������������������������������ 4.5.9 R (Mugisha) v SSHD [2005] EWHC 2720 (Admin) [2006] INLR 335��������������������������������������������������������������������� 41.2.12, 54.1.13 R (Muir) v Wandsworth LBC 23 March 2017 unrep������������������������������������������������������������������������������������������������������������������ 22.1.1 R (Muir) v Wandsworth LBC [2018] EWCA Civ 1035 [2018] PTSR 2121������������������������������������������������������ 16.4.7, 34.5.7, 46.1.5 R (Mullen) v SSHD [2002] EWHC 230 (Admin) [2002] 1 WLR 1857����������������������������������������������������������������������������������� 17.4.11 R (Mullen) v SSHD [2004] UKHL 18 [2005] 1 AC 1������������������������������������������������������������������� 6.2.6, 6.3.5, 6.3.17, 9.1.24, 13.1.1, 25.1.11, 29.5.4, 55.1.18, 65.1.2 R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin)�������������������������������������������� 21.5.30, 22.4.18, 34.5.2 R (Munir) v SSHD [2012] UKSC 32������������������������������������������������������������������������������������������ 6.1.7, 6.2.5, 29.4.10, 40.1.4, 55.1.27 R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036 [2004] QB 395 [2005] UKHL 58 [2006] 2 AC 148��������������������������������������������������������������������������������������������������������������������� 6.2.4, 17.4.11, 17.6.9, 18.1.6, 18.2.8, 22.2.27, 59.1.8, 59.3.5, 59.4.3 R (Muqtaar) v SSHD [2012] EWCA Civ 1270 [2013] 1 WLR 649����������������������������������������������������������������������������������������� 23.3.13 R (Murray) v Parole Board [2003] EWCA Civ 1561��������������������������������������������������������������������������������������������������� 14.3.1, 24.3.12 R (Murungaru) v SSHD [2008] EWCA Civ 1015������������������������������������������������������������������������������������������ 22.4.21, 59.5.16, 61.1.7 R (Mwanza) v Greenwich LBC [2010] EWHC 1462 (Admin) [2011] PTSR 965��������������������������������������������������������������������� 13.4.6 R (MWH & H Ward Estates Ltd) v Monmouthshire County Council [2002] EWCA Civ 1915���������������������������������������������� 17.3.11 R (N) v A LBC [2010] EWHC 3602 (Admin)�������������������������������������������������������������������������������������������������������������� 17.3.12, 26.3.6 R (N) v Barking and Dagenham LBC Independent Appeal Panel [2009] EWCA Civ 108 [2009] LGR 711�������������������������� 55.1.17 R (N) v Dr M [2002] EWCA Civ 1789 [2003] 1 WLR 562����������������������������������������������������������������������������������������������������� 17.4.11 R (N) v Independent Appeal Panel of Barking and Dagenham LBC [2008] EWHC 390 (Admin)����������������������������������������� 55.1.26 R (N) v Lewisham LBC [2014] UKSC 62 [2015] AC 1259��������������������������������������������������������������������� 9.1.5, 29.3.6, 59.6.3, 59.6.9 R (N) v North Tyneside Borough Council [2010] EWCA Civ 135 [2010] ELR 312����������������������������������������������������� 10.1.9, 22.1.4 R (N) v SSHD [2003] EWHC 207 (Admin) [2003] HRLR 583������������������������������������������������������������������������������������� 14.3.5, 25.1.4 R (Nadarajah) v SSHD [2005] EWCA Civ 1363������������������������������������������������������������������������������������������������ 40.1.1, 41.1.3, 54.2.6 R (Naidu) v SSHD [2016] EWCA Civ 156 [2016] 1 WLR 3775������������������������������������������������������� 51.2.4, 55.1.17, 64.4.4, 64.4.15 R (Naik) v SSHD [2011] EWCA Civ 1546������������������������������������������������������������������������������������������������������ 13.5.12, 17.2.1, 58.5.2 R (Naing) v Immigration Appeal Tribunal [2003] EWHC 771 (Admin)��������������������������������������������������������������������������������� 19.2.21 R (Napier) v SSHD [2004] EWHC 936 (Admin) [2004] 1 WLR 3056������������������������������������������������������������������������������������� 38.4.7 R (Nash) v Barnet LBC [2013] EWCA Civ 1004 [2013] PTSR 1457������������������������������������������������������������������������������������� 26.2.14 R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538����������������������������������������� 64.4.4, 64.4.6, 64.4.14, 64.5.2 R (National Aids Trust) v NHS England [2016] EWCA Civ 1100 [2017] 1 WLR 1477��������������������������������������������� 5.2.12, 29.3.22 R (National Association of Guardians Ad Litem and Reporting Officers) v Children and Family Court Advisory and Support Service [2001] EWHC Admin 693 [2002] 1 FLR 255������������������� 41.2.6, 41.2.13, 41.2.17, 41.2.21 R (National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154������������������� 4.2.5, 10.4.6, 17.5.6, 50.3.1, 51.1.11, 51.2.7 R (National Association of Memorial Masons) v Cardiff City Council [2011] EWHC 922 (Admin)��������������������������������������� 63.3.4 R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481���������� 6.1.2, 9.1.11, 10.1.16, 11.1.8, 12.1.1–3, 24.2.4, 24.2.6, 24.4.27 R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243������������������ 7.1.3, 7.3.1, 9.2.11, 9.4.1, 9.4.5, 12.2.4, 12.2.6–7, 13.5.12, 22.4.22, 59.1.5 R (National Council for Civil Liberties) v SSHD (Procedural Matters) [2018] EWHC 976 (Admin)������������� 3.1.11, 3.1.14, 3.1.17, 18.1.32, 18.4.14, 22.1.16, 22.1.18, 22.1.40 R (National Farmers Union) v Secretary of State for Environment, Food and Rural Affairs [2020] EWHC 1192 (Admin)���������������������������������������������������������������������������������������������������������������������������������������� 5.2.7, 13.5.5 R (National Secular Society) v Bideford Town Council [2012] EWHC 175 (Admin) [2012] 2 All ER 1175������������� 22.2.16, 38.4.5 R (Nationwide Association of Fostering Providers) v Bristol City Council [2015] EWHC 3615 (Admin) [2016] PTSR 932��������������������������������������������������������������������������������������������������������������������������������������������������������������������� 38.3.2 R (Navadunskis) v Serious Organised Crime Agency [2009] EWHC 1292 (Admin)���������������������������������������������������������������� 28.2.3 R (NBV) v Parole Board [2018] EWHC 234 (Admin)��������������������������������������������������������������������������������������� 21.1.5, 38.3.4, 64.1.7 R (Nealon) v Secretary of State for Justice [2016] EWCA Civ 335 [2017] QB 571��������������������������������������������������������������� 25.1.11 R (Nejad) v SSHD [2004] EWCA Civ 33�������������������������������������������������������������������������������������������������������������������������������� 55.3.14 R (Neptune Wharf Ltd) v Secretary of State for Trade and Industry [2007] EWHC 1036 (Admin) [2007] 3 All ER 676���������������������������������������������������������������������������������������������������������������������������������������������������������������� 36.4.9 R (Nesiama) v SSHD [2018] EWCA Civ 1369 [2019] 1 WLR 463�������������������������������������� 29.5.6, 54.1.2, 54.1.8, 54.1.10, 54.1.16

882

TABLE OF CASES R (Nettleship) v NHS South Tyneside Clinical Commissioning Group [2020] EWCA Civ 46 [2020] PTSR 928������������������������������������������������������������������������������������������������������������������������������� 62.1.2, 62.3.2, 62.3.4, 62.3.11 R (Network Rail Infrastructure Ltd) v Secretary of State for Environment, Food and Rural Affairs [2018] EWCA Civ 2069 [2019] PTSR 292����������������������������������������������������������������������������������������������������������������� 16.4.6, 48.1.9 R (New London College Ltd) v SSHD [2013] UKSC 51 [2013] 1 WLR 2358������������������������������������� 6.1.8, 22.2.27, 44.3.1, 50.3.5 R (Newby Foods Ltd) v Food Standards Agency [2019] UKSC 18 [2019] 3 CMLR 19��������������������������������������������� 3.1.18, 22.2.18 R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7 [2015] AC 1547��������� 27.1.4, 39.2.13, 48.1.1 R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) [2017] PTSR 1126����������������������������������������������������������������������������������������������������������������������� 31.3.5 R (Newsum) v Welsh Assembly (No.2) [2005] EWHC 538 (Admin) [2006] Env LR 1������������������������������������������������������������� 4.5.8 R (Ngole) v University of Sheffield [2019] EWCA Civ 1127 [2019] ELR 443��������������������������� 2.6.4, 2.6.10, 34.1.1, 59.1.8, 59.7.3 R (Nicholds) v Security Industry Authority [2006] EWHC 1792 (Admin) [2007] 1 WLR 2067�������������������������������������������� 50.4.13 R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [2015] AC 657������������������������������������ 2.1.13, 7.8.5, 12.2.12, 13.1.5, 16.6.2, 37.1.5, 58.5.3, 58.5.12, 59.6.10 R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin) [2015] PTSR 1045������������������������������ 3.2.15, 18.2.7, 51.1.10 R (Nine Nepalese Asylum Seekers) v Immigration Appeal Tribunal [2003] EWCA Civ 1892��������������������������������� 22.1.15, 23.1.16 R (Nmai) v SSHD [2020] EWHC 1139 (Admin)����������������������������������������������������������������������������������������������� 17.4.8, 24.2.9, 49.2.2 R (NN) v SSHD [2019] EWHC 766 (Admin)�������������������������������������������������������������������������������������������������������������������������� 20.1.21 R (NN) v SSHD [2019] EWHC 1003 (Admin) [2019] ACD 71���������������������������������������������������������������������� 4.1.6, 20.1.20, 24.4.16 R (Noble Organisation) v Thanet District Council [2004] EWHC 2576 (Admin) [2005] Env LR 513����������������������������������� 21.2.26 R (Noble Organisation) v Thanet District Council [2005] EWCA Civ 782 [2006] Env LR 185����������������������������������������������� 2.1.29 R (Nolson) v Stevenage Borough Council [2020] EWCA Civ 379�������������������������������������������������������������������� 4.5.9, 20.1.11, 20.2.6 R (Nooh) v SSHD [2018] EWHC 1572 (Admin)����������������������������������������������������������������������������������������������������������������������� 17.4.8 R (Noone) v Governor of Drake Hall Prison [2010] UKSC 30 [2010] 1 WLR 1743��������������������������������� 7.4.9, 7.8.3, 9.3.8, 29.1.8, 29.3.12, 35.2.9, 35.4.2 R (Noorkoiv) v SSHD [2002] EWCA Civ 770 [2002] 1 WLR 3284��������������������������������������������������������������������������������������� 56.1.11 R (Norris) v SSHD [2006] EWHC 280 (Admin) [2006] 3 All ER 1011������������������������������������������������������������������������������������ 6.3.15 R (Norwich and Peterborough Building Society) v Financial Ombudsman Service Ltd [2002] EWHC 2379 (Admin)�������������������������������������������������������������������������������������������������������������������������������������� 16.4.6, 57.3.3 R (Norwich Livestock Market Ltd) v Norwich City Council [2018] EWHC 648 (Admin) [2018] ACD 54����������������������������� 34.5.7 R (Notting Hill Genesis) v Camberwell Green Magistrates Court [2019] EWHC 1423 (Admin) [2019] ACD 79������������������� 24.4.3 R (Nottingham Healthcare NHS Trust) v Mental Health Review Tribunal [2008] EWHC 2445 (Admin)������������������������������ 64.2.21 R (Nouazli) v SSHD [2016] UKSC 16 [2016] 1 WLR 1565������������������������������������������������������������������������������������������������������� 8.1.9 R (Noye) v Secretary of State for Justice [2017] EWHC 267 (Admin)����������������������������������������������������������������������������������� 55.3.13 R (NPower Direct Ltd) v Gas and Electricity Markets Authority [2018] EWHC 3576 (Admin) [2019] ACD 35�������� 3.2.26, 52.2.1 R (NS) v SSHD [2019] EWHC 861 (Admin) [2019] ACD 60��������������������������������������������������� 32.4.5, 32.4.7, 45.4.5, 56.3.4, 57.4.4 R (NTL Group Ltd) v Ipswich Crown Court [2002] EWHC 1585 (Admin) [2003] QB 131��������������������������������������������������� 24.2.16 R (Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37 [2015] AC 225�������������������������������������������� 7.7.8, 11.1.15, 39.2.13 R (Nurse Prescribers Ltd) v Secretary of State for Health [2004] EWHC 403 (Admin)������������������� 18.1.13, 25.3.2, 34.5.2, 41.1.18 R (Nwankwo) v SSHD [2018] EWCA Civ 5 [2018] 1 WLR 2641�������������������������������������������������������������������������������������������� 2.2.17 R (O) v Cardiff City Council [2019] EWHC 2237 (Admin)������������������������������������������������������������������������������������������������������ 20.2.5 R (O) v Central Criminal Court [2006] EWHC 256 (Admin)�������������������������������������������������������������������������������������������������� 32.2.12 R (O) v East Riding of Yorkshire County Council [2011] EWCA Civ 196 [2012] PTSR 328�������������������������������������������������� 45.4.3 R (O) v Hammersmith and Fulham LBC [2011] EWCA Civ 925 [2012] 1 WLR 1057���������������������������������� 5.4.11, 22.1.25, 24.4.9 R (O) v Harrow Crown Court [2003] EWHC 868 (Admin) [2003] 1 WLR 2756 [2006] UKHL 42 [2007] 1 AC 249�������������������������������������������������������������������������������������������������������������������������������������������������������� 32.2.8, 32.2.13 R (O) v Harrow Crown Court [2006] UKHL 42 [2007] 1 AC 249�������������������������������������������������������������������������������������������� 59.4.6 R (O) v Independent Appeal Panel for Tower Hamlets LBC [2007] EWHC 1455 (Admin) [2007] ELR 468�������������������������� 61.7.9 R (O) v Parkview Academy [2007] EWCA 592 [2007] ELR 454�������������������������������������������������������������������������������������������� 24.4.26 R (O) v SSHD [2016] UKSC 19 [2016] 1 WLR 1717������������������������������������������������������������������������� 16.4.5, 16.4.7, 23.1.11, 29.5.9 R (O) v SSHD [2018] EWCA Civ 2236����������������������������������������������������������������������������������������������������������������������������������� 20.1.22 R (O) v SSHD [2019] EWHC 148 (Admin)����������������������������������������������������������������������������� 6.3.6, 32.5.3, 39.2.6, 56.1.11, 57.3.12 R (O) v SSHD [2019] EWHC 2734 (Admin)����������������������������������������������������������������������������������������������������� 56.1.2, 56.2.5, 57.4.4 R (OA) v London Borough of Bexley [2020] EWHC 1107 (Admin)�������������������������������������������������������������������������� 17.5.18, 39.3.5 R (Oboh) v SSHD [2015] EWCA Civ 514������������������������������������������������������������������������������������������������������������������������������� 39.2.13 R (O’Brien) v Independent Adjudicator [2019] EWHC 2884 (Admin) [2020] 1 WLR 1393���������������������������������������� 24.2.9, 46.1.5 R (O’Brien) v Independent Assessor [2007] UKHL 10 [2007] 2 AC 312���������������������������������������� 25.2.16, 40.2.7, 55.1.18, 55.1.26 R (O’Byrne) v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 499 [2002] HLR 567 (CA)��������������������������������������������������������������������������������������������������������������������������������������������������� 2.1.9, 23.2.8 R (O’Byrne) v Secretary of State for the Environment, Transport and the Regions [2002] UKHL 45 [2002] 1 WLR 3250����������������������������������������������������������������������������������������������������������������������������������������������������� 5.2.12, 29.1.3 R (O’Callaghan) v Charity Commission [2007] EWHC 2491 (Admin)���������������������������������������������� 4.4.2, 18.2.8, 41.2.18, 41.2.21 R (O’Connell) v Parole Board [2007] EWHC 2591 (Admin) [2008] 1 WLR 979����������������������������������������������������������������������� 4.2.5 R (O’Connor) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin) [2017] 1 WLR 2833���������������� 7.1.11, 17.2.6, 57.1.16 R (O’Connor) v Avon Coroner [2009] EWHC 854 (Admin) [2011] QB 106�������������������������������������������������������������� 24.4.4, 48.1.16 R (Offerton Park Parish Council) v Stockport Metropolitan Borough Council [2011] EWHC 2247 (Admin)����������������������� 20.1.23 R (Officer W80) v Independent Office for Police Conduct [2019] EWHC 2215 (Admin) [2019] ACD 134�������������� 32.3.5, 32.3.14 R (Officers A & B) v HM Coroner for Inner South London [2004] EWCA Civ 1439 [2005] UKHRR 44����������������������������� 23.2.10 R (Ogbeni) v Tower Hamlets LBC [2008] EWHC 2444 (Admin)������������������������������������������������������������������������������������������� 36.3.15

883

TABLE OF CASES R (Okandeji) v Bow Street Magistrates Court [2005] EWHC 2925 (Admin) [2006] 1 WLR 674�������������������������������������������� 34.4.1 R (Olabinjo) v Westminster Magistrates Court [2020] EWHC 1093 (Admin)�������������������������������������������������������������������������� 17.3.8 R (Oldham Metropolitan Borough Council) v Manchester Crown Court [2005] EWHC 930 (Admin)������������������������������������ 2.1.31 R (O’Leary) v Chief Constable of the Merseyside Police 9th February 2001 unrep����������������������������������������������������������������� 61.6.8 R (Omar) v Chief Constable of Bedfordshire Constabulary [2002] EWHC 3060 (Admin)���������������������������� 32.3.7, 32.3.17, 49.3.5 R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118 [2014] QB 112��������������������� 7.1.18 R (Omoregbee) v Secretary of State for Justice [2011] EWCA Civ 559������������������������������������������������������������������������ 4.5.10, 56.3.3 R (OneSearch Direct Holdings Ltd) v York City Council [2010] EWHC 590 (Admin) [2010] PTSR 1481��������������������������� 53.1.12 R (Onuegbu) v Hackney LBC [2005] EWHC 1277 (Admin)������������������������������������������������������������������������������������������������������ 5.1.3 R (Onwumere) v SSHD [2004] EWHC 1281 (Admin)�������������������������������������������������������������������������������������������������������������� 24.3.3 R (Open Rights Group) v SSHD [2019] EWHC 2562 (Admin) [2019] 1 WLR 811����������������������������������������������������������������� 12.1.2 R (Opoku) v Principal of Southwark College [2002] EWHC 2092 (Admin) [2003] 1 All ER 272����������������������������������������� 21.1.27 R (Orbital Shopping Park Swindon Ltd) v Swindon Borough Council [2016] EWHC 448 (Admin) [2016] PTSR 736�������� 35.2.20 R (Ortona Ltd) v Secretary of State for Communities and Local Government [2009] EWCA Civ 863 [2010] 1 P & CR 293������������������������������������������������������������������������������������������������������������������������������������������������� 17.2.14, 63.3.2 R (Osadebay) v SSHD 11 August 2020 unrep�������������������������������������������������������������������������������������������������������������������������� 20.1.17 R (Osborn) v Parole Board [2010] EWCA Civ 1409 [2011] UKHRR 35 [2013] UKSC 61 [2014] AC 1115�������������������������������������������������������������������������������������������������������������������� 6.3.9, 7.1.2, 7.1.4, 7.7.5, 9.5.3, 13.3.2, 16.5.1, 23.3.19, 60.1.9, 61.1.4, 61.7.4 R (OSS Group Ltd) v Environment Agency [2006] EWHC 2390 (Admin)����������������������������������������������������������������������������� 20.1.24 R (O’Sullivan) v Secretary of State for Health [2001] EWHC Admin 297�������������������������������������������������������������������������������� 34.5.4 R (Othman) v Secretary of State for Work and Pensions [2001] EWHC Admin 1022 (2002) 5 CCLR 148������������������������������� 7.6.3 R (Othman) v SSHD [2019] EWHC 340 (Admin)��������������������������������������������������������������������������������������������������������� 24.2.9, 49.2.2 R (Otley) v Barking and Dagenham NHS Primary Care Trust [2007] EWHC 1927 (Admin)�������������������������������������������������� 13.5.2 R (Oval Estates (St Peter’s) Ltd) v Bath & North East Somerset Council [2020] EWHC 457 (Admin) [2020] PTSR 861������������������������������������������������������������������������������������������������������������������������������������������������������������������� 36.3.18 R (OWD Ltd) v HMRC [2019] UKSC 30 [2019] 1 WLR 4020�������������������������������� 6.1.4, 20.1.16, 20.1.19, 36.1.1, 36.3.23, 39.2.5 R (Owusu-Yianoma) v Chief Constable of Leicestershire [2017] EWHC 576 (Admin) [2017] ACD 48��������������������������������� 32.3.7 R (Oxford Study Centre Ltd) v British Council [2001] EWHC Admin 207 [2001] ELR 803��������������������������� 7.7.9, 21.5.30, 34.1.4 R (Oy) v Bristol Magistrates’ Court [2003] UKHL 55 [2004] 2 All ER 555����������������������������������������������������������������������������� 29.3.3 R (Oyeyi-Effiong) v Bridge NDC Seven Sisters Partnership [2007] EWHC 606 (Admin) [2007] LGR 669��������������������������� 61.6.7 R (Oyston Estates Ltd) v Fylde Borough Council [2019] EWCA Civ 1152 [2019] 1 WLR 5484��������������������������������������������� 28.2.3 R (P and Q) v SSHD [2001] EWCA Civ 1151 [2001] 1 WLR 2002������������������������������������ 9.1.3, 21.5.28, 36.3.26, 36.3.33, 50.4.17 R (P) v Essex County Council [2004] EWHC 2027 (Admin)���������������������������������������������������������������� 5.1.3, 5.4.4, 19.2.21, 22.1.23 R (P) v General Dental Council [2016] EWHC 3181 (Admin) [2017] 4 WLR 14������������������������������������������������������������������ 29.3.14 R (P) v HM Coroner for the District of Avon [2009] EWCA Civ 1367����������������������������������������������������������������������������������� 24.3.10 R (P) v Liverpool City Magistrates [2006] EWHC 887 (Admin) [2006] ELR 386����������������������������������������������������������������� 36.3.28 R (P) v Secretary of State for Justice [2019] UKSC 3 [2020] AC 185������������������������������������������������� 11.1.2, 37.1.19, 59.1.5, 59.6.8 R (PA (Iran)) v Upper Tribunal [2018] EWCA Civ 2495������������������������������������������������������������������������������������������������������������� 2.3.1 R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1004��������������������������������������������� 21.4.9, 26.1.2, 41.2.9, 62.3.3 R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16 [2020] 1 WLR 1774������������������������������������������������������������������ 5.2.9, 6.2.4, 16.4.1, 29.3.22, 52.2.5, 53.1.3, 53.1.9 R (Palmer) v Herefordshire Council [2016] EWCA Civ 1061 [2017] 1 WLR 411������������������������������ 17.3.8, 42.1.1, 56.3.3, 65.1.11 R (Pantellerisco) v Secretary of State for Work and Pensions [2020] EWHC 1944 (Admin)������������� 57.1.9, 57.4.3, 57.4.7, 58.3.22 R (Parashar) v Sunderland Magistrates’ Court [2019] EWHC 514 (Admin) [2019] 2 Cr App R 18��������������������������������� 32.3.15–16 R (Parent Governors of Cardinal Vaughan School) v Archbishop of Westminster [2011] EWCA Civ 433 [2012] PTSR 291��������������������������������������������������������������������������������������������������������������������������������������������������������������������� 34.1.3 R (Parents for Legal Action Ltd) v Northumberland County Council [2006] EWHC 1081 (Admin) [2006] ELR 397����������������������������������������������������������������������������������������������������������������������������������������������������������� 17.1.5, 62.3.5 R (Parish) v Pensions Ombudsman [2009] EWHC 969 (Admin)�������������������������������������������������������������������������������������������� 47.1.11 R (Parkin) v Secretary of State for Work and Pensions [2019] EWHC 2356 (Admin) [2019] ACD 138�������������������������������� 59.8.13 R (Parkinson) v HM Senior Coroner for Kent [2018] EWHC 2173 (Admin)���������������������������������������������������������������������������� 21.5.3 R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin) [2018] 4 WLR 106��������������������������������������������������������� 18.2.2 R (Parratt) v Secretary of State for Justice [2009] EWHC 3089 (Admin) [2010] 1 WLR 1848������������������������������������������������ 29.5.7 R (Parsipoor) v SSHD [2011] EWCA Civ 276 [2011] 1 WLR 3187������������������������������������������������������������������� 4.5.4, 22.3.2, 22.4.1 R (Parveen) v Redbridge LBC [2020] EWCA Civ 194 [2020] 4 WLR 53�������������������������� 18.1.24, 18.5.2, 18.5.5, 21.5.32, 23.3.32 R (Passenger Transport UK) v Humber Bridge Board [2003] EWCA Civ 842 [2004] QB 310�������������������������������������� 6.1.6, 29.1.8 R (Pate) v SSHD [2002] EWHC 1018 (Admin)����������������������������������������������������������������������������������������������������������������������� 50.4.15 R (Patel) v Dacorum Borough Council [2019] EWHC 2992 (Admin)�������������������������������������������������������������������������������������� 64.4.4 R (Patel) v General Medical Council [2013] EWCA Civ 327 [2013] 1 WLR 327������������������������������� 2.6.10, 26.4.3, 40.2.3, 41.2.3, 42.2.15, 50.4.13, 54.2.6, 56.1.10 R (Patel) v Lord Chancellor [2010] EWHC 2220 (Admin)���������������������������������������������������������������������������������� 7.3.4, 13.1.1, 13.5.2 R (Patel) v SSHD [2012] EWHC 2100 (Admin)�������������������������������������������������������������������������������������������������������� 54.1.10, 55.1.16 R (Patel) v SSHD [2020] EWCA Civ 74������������������������������������������������������������������������������������������������������������������������ 18.1.4, 18.5.5 R (Patmore) v Brentwood Borough Council [2012] EWHC 1244 (Admin)�������������������������������������������������������������������� 4.3.2, 36.4.7 R (Paul) v Inner West London Assistant Deputy Coroner [2007] EWCA Civ 1259 [2008] 1 WLR 1335��������������������������������� 26.1.9 R (Payne) v Caerphilly County Borough Council [2004] EWCA Civ 433�������������������������������������������������������������������������������� 18.3.5 R (PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311������������������������������������������ 11.1.5

884

TABLE OF CASES R (Pegram) v Bristol Crown Court [2019] EWHC 965 (Admin)����������������������������������������������������������������������������������������������� 3.2.15 R (Pelling) v Bow County Court [2001] UKHRR 165������������������������������������������������������������������������������������������������� 17.2.4, 23.1.14 R (Pelling) v Newham LBC [2011] EWHC 3265 (Admin)�������������������������������������������������������������������������������������������������������� 59.5.7 R (Pepushi) v CPS [2004] EWHC 798 (Admin) [2004] INLR 638����������������������������������������������������������������������������� 32.3.6, 41.2.21 R (Percy) v Corby Magistrates Court [2008] EWHC 607 (Admin)������������������������������������������������������������������������������������������� 2.1.31 R (Perinpanathan) v Westminster Magistrates Court [2010] EWCA Civ 40 [2010] 1 WLR 1508������������������������������������������ 18.1.20 R (Perrett) v Secretary of State for Communities & Local Government [2009] EWCA Civ 1365 [2010] PTSR 1280�������������� 2.6.6 R (Persimmon Homes (South East) Ltd) v Secretary of State for Transport [2005] EWHC 96 (Admin)���������������������������������� 61.5.6 R (Persimmon Homes (Thames Valley) Ltd) v North Hertfordshire District Council [2001] EWHC Admin 565 [2001] 1 WLR 2393��������������������������������������������������������������������������������������������������������������������������������������������������������������� 21.2.26 R (Peters) v Haringey LBC [2018] EWHC 192 (Admin) [2018] PTSR 1359������������������������� 4.1.17, 4.1.19, 21.4.5, 26.2.14, 52.2.6 R (Pharis) v SSHD [2004] EWCA Civ 654 [2004] 1 WLR 2590�������������������������������������������������������������������������������������������� 23.1.13 R (Pharmaceutical Services NC) v SSH [2017] EWHC 1147 (Admin) [2017] PTSR 1451������������������������������������������������������ 51.1.4 R (Pharmaceutical Services Negotiating Committee) v Secretary of State for Health [2018] EWCA Civ 1925 [2019] PTSR 885������������������������������������������������������������������������������������������������������������������������������������������ 13.5.18, 45.4.5, 51.1.1, 51.1.5, 56.2.3, 56.2.8 R (Phoenix Life Holdings Ltd) v HMRC [2019] EWHC 2043 (Admin) [2019] STC 1829���������������������������������������� 54.1.12, 57.4.4 R (Pilot Foods Ltd) v Horseferry Road Magistrates’ Court [2003] EWHC 1447 (Admin)������������������������������������������������������� 18.2.7 R (Pitts) v Commissioner of Police of the Metropolis [2017] EWHC 646 (Admin) [2017] ACD 61���������������������������������������� 32.3.8 R (PK (Ghana)) v SSHD [2018] EWCA Civ 98 [2018] 1 WLR 3955������������������������������������������������������������������������������� 5.3.2, 6.3.6 R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214���������������������������������� 4.1.5, 4.1.7–8, 4.1.10–12, 4.1.19, 4.2.3, 5.2.9, 6.3.7, 8.1.13, 13.3.4, 13.5.3, 15.1.2, 21.2.27, 21.4.4, 21.4.11, 22.2.18, 24.2.9, 56.1.7, 57.1.1, 58.2.7 R (Plant) v Lambeth LBC [2016] EWHC 3324 (Admin) [2017] PTSR 453�������������������������������������������� 4.2.5, 15.1.2, 62.1.3, 62.1.5 R (Plant) v Somerset County Council [2016] EWHC 1245 (Admin) [2016] ACD 76��������������������������������������������������������������� 3.1.14 R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin) [2014] ACD 26���������������������������������������������������������������������������������������������������������������������������� 17.5.16, 18.4.13, 21.5.19, 21.5.24 R (Plowman) v Secretary of State for Foreign and Commonwealth Affairs [2001] EWHC Admin 617����������������������� 4.6.3, 23.1.10 R (PML Accounting Ltd) v HMRC [2018] EWCA Civ 2231 [2019] 1 WLR 2428������������� 2.1.10, 2.1.34, 23.3.31, 24.3.10, 27.3.15 R (Police Federation for England and Wales) v SSHD [2019] EWHC 1308 (Admin)������������������������������������������������������������ 17.5.16 R (Police Federation of England & Wales) v SSHD [2009] EWHC 488 (Admin)������������������������������������������������������������������ 46.1.16 R (Poskitt) v Reading Magistrates’ Court [2018] EWHC 984 (Admin) [2018] 2 Cr App R 17����������������������������������������������� 32.3.16 R (Pounder) v HM Coroner for North and South Districts of Durham and Darlington [2010] EWHC 328 (Admin)������������������������������������������������������������������������������������������������������������������������������������������ 2.6.4, 63.3.2 R (PPG11 Ltd) v Dorset County Council [2003] EWHC 1311 (Admin) [2004] Env LR 84��������������������������������������������������� 18.1.27 R (Prathipati) v SSHD [2018] EWCA Civ 1370���������������������������������������������������������������������������������������������������������������������� 23.1.10 R (Preston) v Cumbria County Council [2019] EWHC 1362 (Admin)������������������������������������������������������������������������������������ 22.2.17 R (Pretty) v DPP [2001] UKHL 61 [2002] 1 AC 800��������������������������������������������������� 5.2.12, 6.1.2, 11.1.15, 59.3.2, 59.3.5, 59.8.19 R (Price) v Carmarthenshire County Council [2003] EWHC 42 (Admin)��������������������������������������������������������������������������������� 49.4.6 R (Price) v Snaresbrook Crown Court [2020] EWHC 496 (Admin)���������������������������������������������������������������������������������������� 22.1.15 R (Primary Health Investment Properties Ltd) v Secretary of State for Health [2009] EWHC 519 (Admin) [2009] PTSR 1563������������������������������������������������������������������������������������������������������������������������������������������������������������������� 61.6.8 R (Pritchard) v Secretary of State for Work and Pensions [2020] EWHC 1495 (Admin)������������������������������ 12.3.13, 55.2.7, 55.2.9, 55.2.12, 59.8.15 R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491�������������� 1.1.1, 1.1.7, 1.3.4–5, 1.3.7–8, 1.3.10–11, 2.1.7, 2.1.14, 2.1.26, 6.1.2, 7.2.1, 7.2.4, 7.2.6, 7.7.3, 11.1.6, 12.3.5, 13.2.3, 14.1.8, 22.4.18, 28.1.4–6, 28.1.8, 28.1.10, 28.1.19, 28.2.2, 32.1.2, 32.1.5, 32.1.11, 33.2.6, 33.2.25, 33.2.28, 33.3.1–3, 34.4.1, 35.2.4, 35.4.5, 44.3.7, 45.2.2, 45.3.9, 47.1.1, 48.1.3, 48.2.7, 52.1.1 R (Professional Contractors Ltd) v Commissioners of Inland Revenue [2001] EWHC Admin 236 [2001] EuLR 514 [2001] EWCA Civ 1945 [2002] EuLR 329���������������������������������������������������������������������������������������������� 17.3.12 R (Project for the Registration of Children as British Citizens) v SSHD [2019] EWHC 3536 (Admin) [2020] 1 WLR 1486����������������������������������������������������������������������������������������������������������������������������������������������������� 7.6.20, 56.2.5 R (Project Management Institute) v Minister for Cabinet Office [2016] EWCA Civ 21 [2016] 1 WLR 1737�������������� 34.1.1, 34.4.7 R (Prokopp) v London Underground Ltd [2003] EWHC 960 (Admin) [2003] EWCA Civ 961 [2004] Env LR 170���������������������������������������������������������������������������������������������������������������������������������������������������� 17.1.5, 22.2.21 R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185�������������������������������������������������������������������������������������� 5.1.1, 6.1.3, 13.1.6, 34.1.3, 34.5.2, 58.5.2, 58.5.6, 59.7.2 R (Prospect) v Ministry of Defence [2008] EWHC 2056 (Admin)�������������������������������������������������������������������������������������������� 34.5.9 R (Prudential Plc) v Special Commissioner of Income Tax [2010] EWCA Civ 1094 [2011] QB 669�������������������������������������� 7.6.11 R (Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) [2018] ICR 269������������������������������������������������������������������������������������������������������������������������������������������� 4.1.9, 4.1.11–13, 4.1.18, 62.2.3, 62.3.11 R (Public and Commercial Services Union) v Minister for the Civil Service [2010] EWHC 1027 (Admin) [2010] ICR 1198���������������������������������������������������������������������������������������������������������������������������������������������������������������������� 34.5.9

885

TABLE OF CASES R (Public and Commercial Services Union) v Minister for the Civil Service (No.2) [2010] EWHC 1463 (Admin) [2011] 3 All ER 73��������������������������������������������������������������������������������������������������������������������������������������������������������������� 43.1.4–5 R (Public and Commercial Services Union) v Minister for the Civil Service (No.3) [2011] EWHC 2041 (Admin) [2012] 1 All ER 985�������������������������������������������������������������������������������������������������������������������������������������������������������������� 56.1.10 R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531��������������������������������������� 2.1.13, 4.6.2, 7.4.3, 12.3.14, 13.1.1, 29.1.6, 29.2.1, 29.3.23, 35.2.21, 45.4.6, 46.1.6, 46.1.17 R (Pullen) v Health and Safety Executive [2003] EWHC 2934 (Admin)���������������������������������������������������������������������������������� 32.3.6 R (Purdy) v DPP [2009] UKHL 45 [2010] 1 AC 345����������������������������������������������������������������������������������������� 6.2.2, 11.1.12, 59.1.8 R (Purja) v Ministry of Defence [2003] EWCA Civ 1345 [2004] 1 WLR 289������������������������������������������������������������������������ 24.4.26 R (Purnell) v South West Magistrates’ Court [2013] EWHC 64 (Admin) [2013] ACD 49������������������������������������������������������ 58.3.20 R (Purvis) v DPP [2018] EWHC 1844 (Admin) [2018] 4 WLR 118��������������������������������������������������������������� 22.1.27, 32.3.4, 57.4.5 R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36����������������������������������������������������������������� 2.1.8, 7.1.13, 31.2.3, 32.4.9, 33.1.5, 36.4.8–9, 45.1.4, 48.1.8, 51.1.10, 54.2.13, 61.5.6, 61.6.11 R (QR (Pakistan)) v SSHD [2018] EWCA Civ 1413����������������������������������������������������������� 3.1.14, 20.1.22, 26.3.1, 26.3.19, 36.3.10 R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2001] EWHC Admin 1174����������������� 61.1.12 R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409����������� 10.4.2, 10.4.4, 10.4.13, 17.5.5, 17.5.8, 31.2.7, 34.4.3, 42.2.8, 51.2.1, 56.1.10, 64.1.5, 64.2.14 R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWHC 1743 (Admin) [2005] UKHL 57 [2006] 1 AC 529������������������������������������������������������������������������������������������������������ 9.1.7, 9.1.18, 9.4.8, 22.1.15, 25.3.1–2, 25.3.5, 41.1.18 R (Queen Mary University of London) v Higher Education Funding Council for England [2008] EWHC 1472 (Admin)������������������������������������������������������������������������������������������������������������������������������������ 47.1.13, 49.1.4 R (Quila) v SSHD [2010] EWCA Civ 1482 [2011] 3 All ER 81 (CA)���������������������������������������������������������� 33.2.19, 58.3.9, 58.3.13 R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621������������������������������������������������������������ 2.1.13, 4.5.11, 6.3.11, 9.2.12, 37.1.20, 58.4.3, 58.4.5, 58.5.1, 59.6.2, 59.6.4 R (Quintavalle) v Human Fertilisation and Embryology Authority [2002] EWHC 2785 (Admin) [2003] 2 All ER 105 [2005] UKHL 28 [2005] 2 AC 561������������������������������������������������������������������������������ 2.1.13, 29.4.2, 38.2.10 R (Quintavalle) v Secretary of State for Health [2001] EWHC Admin 918 [2001] 4 All ER 1013����������� 2.1.28–29, 26.3.8, 26.3.16 R (Quintavalle) v Secretary of State for Health [2003] UKHL 13 [2003] 2 AC 687����������� 7.4.5, 29.1.2–3, 29.3.8, 29.3.12, 29.3.17 R (R) v Chief Constable of Manchester [2018] UKSC 47 [2018] 1 WLR 4079���������������������������������� 2.6.22, 23.3.9, 23.3.11, 59.6.8 R (R) v Children and Family Court Advisory and Support Service [2011] EWHC 1774 (Admin) [2012] 1 WLR 811 [2012] EWCA Civ 853 [2013] 1 WLR 163������������������������������������������������������������������� 23.2.9, 39.3.6, 46.1.13 R (R) v Durham Constabulary [2005] UKHL 21 [2005] 1 WLR 1184�������������������������������������������������������������������������������������� 59.5.3 R (R) v Leeds City Council [2005] EWHC 2495 (Admin) [2006] ELR 25������������������������������������������������������������������������������� 36.2.2 R (Rafique-Aldawery) v St George’s, University of London [2018] EWCA Civ 2520 [2019] PTSR 658����������������������������������������������������������������������������������������������������������������������������� 19.2.26, 26.3.4, 36.3.5, 36.3.30 R (Raheem) v Nursing and Midwifery Council [2010] EWHC 2549 (Admin)����������������������������������������������������������������������� 61.7.11 R (Rahman) v SSHD [2015] EWHC 1146 (Admin) [2015] ACD 107������������������������������������������������������������������������������������� 55.1.23 R (Rahmdezfouli) v Wood Green Crown Court [2013] EWHC 2998 (Admin) [2014] 1 WLR 1793�������������������������� 44.3.5, 47.1.12 R (Raines) v Orange Grove [2006] EWHC 1887 (Admin)�������������������������������������������������������������������������������������������������������� 26.4.4 R (Raissi) v SSHD [2008] EWCA Civ 72 [2008] QB 836��������������������������������������������������������������������������������������������������������� 16.4.5 R (Raja) v Redbridge LBC [2020] EWHC 1456 (Admin)����������������������������������������������������������������������������������������������� 5.2.12, 5.4.9 R (Rajput) v Waltham Forest LBC [2011] EWCA Civ 1577 (2012) 15 CCLR 147�������������������������������������������������� 20.1.21, 26.1.21 R (Rama) v Immigration Appeal Tribunal [2003] EWHC 27 (Admin)������������������������������������������������������������������������������������ 22.1.31 R (Ramda) v SSHD [2002] EWHC 1278 (Admin)������������������������������������������������������������������ 36.4.5, 61.1.7, 61.6.2, 61.6.8, 61.6.14 R (Raphael) v Highbury Corner Magistrates Court [2011] EWCA Civ 462 [2012] PTSR 427��������������������������������������� 4.2.1, 50.3.5 R (Raqeeb) v Barts Health NHS Trust [2019] EWHC 2976 (Admin)���������������������������������������������������������������������������������������� 21.5.3 R (Rasheed) v SSHD [2015] EWHC 2052 (Admin) [2015] ACD 130���������������������������������������������������������������������� 21.5.19, 42.2.19 R (Rashid) v SSHD [2005] EWCA Civ 744 [2005] INLR 550������������������������������������������ 10.4.13, 24.3.12, 41.2.12, 54.1.15, 54.2.5 R (Rathakrishnan) v SSHD [2011] EWHC 1406 (Admin)����������������������������������������������������������������������������������������������������������� 5.4.5 R (Rathor) v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin) [2019] ACD 25������������������������������������� 5.3.4, 32.3.15 R (Raw) v Lambeth LBC [2010] EWHC 507 (Admin)������������������������������������������������������������������������������������������������������ 4.5.1, 4.5.7 R (Razgar) v SSHD [2004] UKHL 27 [2004] 2 AC 368������������������������������������������������������������������������������������������������ 32.4.6, 58.5.9 R (RD (A Child) v Worcestershire County Council [2019] EWHC 449 (Admin)������������������������������������������ 4.1.20, 5.2.12, 41.2.13, 54.1.12, 54.2.5, 56.1.10 R (RD (A Child)) v Worcestershire County Council [2019] EWHC 449 (Admin)�������������������������������������������������������������������� 54.2.6 R (Reading Borough Council) v Admissions Appeal Panel for Reading Borough Council [2005] EWHC 2378 (Admin) [2006] ELR 186������������������������������������������������������������������������������������������� 22.2.17, 22.3.2, 64.3.12 R (Reckless) v Kent Police Authority [2010] EWCA Civ 1277������������������������������������������������������������������������������������� 34.5.9, 50.3.5 R (Refugee Legal Centre) v SSHD [2004] EWHC 684 (Admin) [2004] Imm AR 142 [2004] EWCA Civ 1481 [2005] 1 WLR 2219������������������������������������������������������������������������������������������������������ 1.2.4, 2.6.21, 6.2.3, 16.5.3, 18.4.4, 32.4.15, 32.5.2, 33.2.21, 36.4.4, 38.2.10, 55.1.28 R (Regentford Ltd) v Canterbury Crown Court [2001] HRLR 362������������������������������������������������������������������������� 32.2.12, 59.10.11 R (Rehman) v Wakefield City Council [2019] EWCA Civ 2166 [2020] PTSR 765���������������������������� 38.1.7, 45.4.3, 46.1.15, 56.2.6 R (Rehoune) v Islington LBC [2019] EWHC 371 (Admin)����������������������������������������������������������������������������������������������������� 36.3.15 R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68 [2014] AC 453����������������� 7.4.3, 39.2.13, 46.1.17, 59.10.1

886

TABLE OF CASES R (Repic Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] EWHC 2015 (Admin) [2010] PTSR 550������������������������������������������������������������������������������������������������������������������ 18.2.5, 32.3.13 R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin)�������������������������������������������������������������� 1.1.1, 1.2.16, 2.1.12, 17.5.15, 22.4.18, 38.4.5, 59.5.17, 61.6.13 R (Residents Against Waste Sites Ltd) v Lancs County Council [2007] EWHC 2558 (Admin)������������������������������� 18.1.27, 21.5.24 R (Residents Local to Elmbank) v Woking Borough Council [2019] EWHC 892 (Admin)������������������������������������������������������ 38.1.7 R (RF) v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) [2018] PTSR 1147���������������������������������� 59.8.14 R (Rhodes) v Kingston upon Hull City Council [2001] ELR 230�������������������������������������������������������������������������������������������� 21.2.22 R (Riaz) v SSHD [2019] EWHC 721 (Admin)�������������������������������������������������������������������������������������������������������������������������� 13.6.1 R (Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000 [2005] LGR 105���������������� 28.1.18, 52.2.6, 56.1.6, 64.4.5 R (Richardson) v Judicial Executive Board [2018] EWHC 1825 (Admin)�������������������������������������������������������������������� 18.3.3, 34.4.2 R (Richardson) v North Yorks County Council [2003] EWCA Civ 1860 [2004] 1 WLR 1920�������������������� 24.3.15, 63.1.4, 64.4.15 R (Richborough Estates Ltd) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 33 (Admin) [2018] PTSR 1168��������������������������������������������������������������������������������������������������������������������� 41.2.10 R (Richmond Pharmacology Ltd) v Health Research Authority [2015] EWHC 2238 (Admin)���������������������������������������������� 39.2.13 R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91 [2016] 1 WLR 2453������������������������������������������������������������ 58.3.24 R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91 [2016] 1 WLR 2543�������������������������������������� 43.1.8, 53.1.4, 53.1.7 R (Riniker) v Employment Tribunals & Regional Chairmen [2009] EWCA Civ 1450������������������������������������� 18.1.9, 18.3.3, 18.3.5 R (Risk Management Partners Ltd) v Brent LBC [2011] UKSC 7 [2011] 2 AC 34������������������������������������������� 2.6.18, 6.1.4, 46.1.19 R (River East Supplies Ltd) v Nottingham Crown Court [2017] EWHC 1942 (Admin) [2017] 4 WLR 135��������������������������� 7.6.10 R (RJM) v Secretary of State for Work and Pensions [2007] EWCA Civ 614 [2007] 1 WLR 3067 (CA)������������������������������ 11.1.11 R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 [2009] AC 311������� 9.2.7, 11.1.12, 59.8.11, 59.8.19, 59.9.2 R (RL) v Croydon LBC [2018] EWCA Civ 726 [2019] 1 WLR 224��������������������������������������������������������������������������� 18.1.24, 18.5.7 R (Robert Hitchins Ltd) v Worcestershire County Council [2014] EWHC 3809 (Admin)�������������������������������������������������������� 24.2.5 R (Robert Smith) v CPS [2010] EWHC 3593 (Admin)������������������������������������������������������������������������������������������������������������� 65.1.3 R (Roberts) v Leicester Crown Court [2020] EWHC 1783 (Admin)��������������������������������������������������� 2.1.31, 3.2.15, 22.4.14, 63.3.3 R (Roberts) v Metropolitan Police Commissioner [2015] UKSC 79 [2016] 1 WLR 210������������������������ 7.6.8, 9.4.1, 55.2.1, 59.6.10 R (Roberts) v Parole Board [2005] UKHL 45 [2005] 2 AC 738������������������������������������������������������������������������������������ 59.4.5, 61.6.8 R (Robertson) v City of Wakefield Metropolitan Council [2001] EWHC Admin 915 [2002] QB 1052��������������������������������� 26.3.15 R (Robin Murray & Co) v Lord Chancellor [2011] EWHC 1528 (Admin)������������������������������������������������������������������������������� 62.3.6 R (Robinson) v Governor of Whatton Prison [2013] EWHC 3777 (Admin)����������������������������������������������������������������������������� 56.2.3 R (Robinson) v SSHD [2019] UKSC 11 [2019] 2 WLR 897����������������������������������������������������������������������������������������������������� 29.3.7 R (Robinson) v Torridge District Council [2006] EWHC 877 (Admin) [2007] 1 WLR 871������������������������������������������������������� 4.5.8 R (Robson) v CPS [2016] EWHC 2191 (Admin) [2017] 4 WLR 27����������������������������������������������������������������������������������������� 32.3.6 R (Roche Registration Ltd) v Secretary of State for Health [2015] EWCA Civ 1311 [2016] 4 WLR 46��������������������������������������������������������������������������������������������������������������� 21.5.22, 23.3.2, 23.3.19, 48.1.16, 61.6.7 R (Rockware Glass Ltd) v Chester City Council [2007] Env LR 32���������������������������������������������������������������������������������������� 24.4.18 R (Rogers) v SSHD [2002] EWHC 2078 (Admin) [2003] ACD 9��������������������������������������������������������������������������������������������� 53.1.5 R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392 [2006] 1 WLR 2649������������������������������������ 32.4.9, 57.4.8 R (Rojas) v Snaresbrook Crown Court [2012] EWHC 3569 (Admin)��������������������������������������������������������������������������������������� 24.4.4 R (ROO (Nigeria)) v SSHD [2018] EWHC 1295 (Admin)�������������������������������������������������������������������������������������������� 32.4.7, 57.4.5 R (Rose) v Secretary of State for Health [2002] EWHC 1593 (Admin) [2002] 2 FLR 962���������������������������������������������������� 22.4.18 R (Rose) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) (2014) 138 BMLR 101�������������������������������� 6.2.9 R (Roszkowski) v SSHD [2017] EWCA Civ 1893 [2018] 1 WLR 2848������������������������������������������������������������������� 29.1.1, 55.3.7–8 R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322������������������������������������������������������������������������������������������� 1.1.1, 13.5.2, 14.1.2, 15.1.3, 31.4.2, 37.1.1, 45.4.3, 55.1.8, 57.1.7, 58.5.7 R (Rottman) v Commissioner of Police for the Metropolis [2002] UKHL 20 [2002] 2 AC 692����������������������������������� 5.2.11, 29.3.7 R (Roudham & Larling Parish Council) v Breckland Council [2008] EWCA Civ 714������������������������������������������������������������� 18.3.3 R (Rowen) v Governor of Kirkham Prison [2009] EWHC 3756 (Admin)��������������������������������������������������������������������������������� 64.2.3 R (Roxlena Ltd) v Cumbria County Council [2019] EWCA Civ 1639�������������������������������������������������������������������������� 49.4.5, 51.1.6 R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472�������������������������������������������������������������������������������������������������������������������������������������� 4.6.4, 62.3.2, 65.1.9 R (Royal College of Nursing) v SSHD [2011] EWHC 2761 (Admin) [2011] PTSR 1193������������������������������������������������������ 12.2.11 R (Royal Society for the Prevention of Cruelty to Animals) v Secretary of State for the Environment, Food and Rural Affairs [2008] EWHC 2321 (Admin) [2009] PTSR 730������������������������������������������������������������������������������� 22.4.8 R (Royden) v Wirral Metropolitan Borough Council [2002] EWHC 2484 (Admin) [2003] LGR 290����������������������������������� 62.2.10 R (RP) v Brent LBC [2011] EWHC 3251 (Admin)�������������������������������������������������������������������������������������������������������������������� 51.1.1 R (RS (Sri Lanka)) v SSHD [2011] EWCA Civ 114���������������������������������������������������������������������������������������������������������������� 18.1.28 R (RSPB) v Natural England [2019] EWHC 585 (Admin)������������������������������������������������������������������������������������������ 51.1.6, 58.3.24 R (RSPB) v Secretary of State for Justice [2017] EWHC 2309 (Admin) [2018] Env LR 13�������������������������������������������������� 18.4.17 R (Rudling) v General Medical Council [2018] EWHC 3582 (Admin) [2019] PTSR 843������������������������������������������������������� 61.6.7 R (Rycroft) v Royal Pharmaceutical Society of Great Britain [2010] EWHC 2832 (Admin)������������������������������������������������� 46.1.13 R (S & B) v Independent Appeal Panel of Birmingham City Council [2006] EWHC 2369 (Admin) [2007] ELR 57������������ 50.3.10 R (S (A Child) v NHS England [2016] EWHC 1395 (Admin) [2016] Med LR 329����������������������������������������������������������������� 24.4.9 R (S (Albania)) v Waltham Forest LBC [2016] EWHC 1240 (Admin)������������������������������������������������������������������������������������� 36.1.2 R (S) v Camden LBC [2018] EWHC 3354 (Admin)������������������������������������������������������������������������������������������������������ 4.1.17, 55.3.7 R (S) v Chief Constable of South Yorkshire [2004] UKHL 39 [2004] 1 WLR 2196��������������������������� 9.1.23, 9.2.4, 17.2.20, 29.3.25 R (S) v CPS [2015] EWHC 2868 (Admin) [2016] 1 WLR 804������������������������������������������������������������������������������������������������� 32.3.6

887

TABLE OF CASES R (S) v Croydon LBC [2017] EWHC 265 (Admin) [2017] PTSR 744���������������������������������������������������������������������������������������� 6.2.4 R (S) v Education Action (Waltham Forest) [2006] EWHC 3144 (Admin) [2007] ELR 185���������������������������������������������������� 36.4.8 R (S) v Inner West London Coroner [2001] EWHC Admin 105������������������������������������������������������������������������������������������������ 31.3.5 R (S) v Knowsley NHS Primary Care Trust [2006] EWHC 26 (Admin)������������������������������������� 4.6.5, 36.4.4, 36.4.9, 61.7.3, 61.7.6 R (S) v London Borough of Brent [2002] EWCA Civ 693 [2002] ELR 556������������������������� 50.1.5, 55.1.27, 61.3.3, 61.3.8, 64.4.15 R (S) v Northampton Crown Court [2010] EWHC 723 (Admin) [2012] 1 WLR 1��������������������������������������������������������� 4.3.2, 61.7.3 R (S) v Secretary of State for Justice [2012] EWHC 1810 (Admin)���������������������������������������������������������������������������������������� 58.5.14 R (S) v SSHD [2006] EWHC 1111 (Admin)���������������������������������������������������������������������������������������������������������������������������� 10.4.13 R (S) v SSHD [2007] EWCA Civ 546���������������������������������������������������������������������������������� 24.4.9, 45.2.5, 50.1.2–3, 54.1.15, 55.1.5 R (S) v Westminster City Council [2011] EWCA Civ 954 [2012] PTSR 574 [2013] UKSC 27 [2013] 1 WLR 1445�������������� 4.5.10 R (Saadat) v Rent Service [2001] EWCA Civ 1559 [2002] HLR 613������������������������������������������������������������������������������������� 53.1.11 R (Saadi) v SSHD [2001] EWCA Civ 1512 [2002] 1 WLR 356 (CA)�������������������������������������������������� 7.6.6, 41.2.5, 55.1.5, 58.3.25 R (Saadi) v SSHD [2002] UKHL 41 [2002] 1 WLR 3131������������������������������������������������������������������� 5.2.11, 22.2.27, 39.2.6, 59.4.4 R (Sacker) v HM Coroner for West Yorkshire [2003] EWCA Civ 217 [2003] 2 All ER 278�������������������������������������������������� 26.3.14 R (Sacupima) v Newham LBC [2001] 1 WLR 563������������������������������������������������������������������������������������������������������ 24.3.3, 50.4.17 R (Saeed) v SSHD [2018] EWHC 2507 (Admin)�������������������������������������������������������������������������������������������������������������������� 20.1.28 R (Safeer) v SSHD [2018] EWCA Civ 2518���������������������������������������������������������������������������������������������������������������������� 17.3.10–11 R (Sainsbury’s Supermarkets Ltd) v Independent Reviewer or Advertising Standards Authority Adjudications [2014] EWHC 3680 (Admin) [2015] ACD 23������������������������������������������������������������������������������������������������������������������������ 16.1.3 R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 [2011] 1 AC 437���������� 7.6.19, 24.2.9, 52.2.5, 56.1.3, 56.3.1, 58.3.22 R (Salford Estates (No.2) Ltd v Salford City Council [2011] EWHC 2097 (Admin)���������������������������������������������������������������� 43.1.8 R (Salih) v SSHD [2003] EWHC 2273 (Admin)�������������������������������������������������������������������������������������������������������������� 1.2.15, 6.2.3 R (Salubi) v Bow Street Magistrates Court [2002] EWHC 919 (Admin) [2002] 1 WLR 3073����������������������������������� 32.2.12, 65.1.3 R (Samaroo) v SSHD [2001] EWCA Civ 1139 [2001] UKHRR 1150�������������������������������������������������������������������������������������� 56.3.7 R (Sambotin) v Brent LBC [2018] EWCA Civ 1826 [2019] PTSR 371�������������������������������������������������������� 46.1.15, 47.1.15, 49.3.8 R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3 [2020] PTSR 221����������������������������������������������������������������������������������������������������������������������� 5.1.1, 16.4.4, 16.4.7, 56.2.3, 56.3.2 R (Samuel) v Parole Board [2020] EWHC 42 (Admin)������������������������������������������������������������������������������������������������������������� 4.1.20 R (San Michael College Ltd) v SSHD [2011] EWCA Civ 1336������������������������������������������������������������������������������������������������ 55.1.6 R (Sandhar) v Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1614 [2012] ELR 160����������������������������������������������������������������������������������������������������������������������������������������������������������� 2.6.15, 61.7.5 R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697������������������������������������������������������������������������������������������������������������������ 6.1.8, 9.1.18, 21.4.1, 32.1.7, 32.4.3, 34.4.9, 50.1.7, 50.4.8, 57.1.3, 58.3.11 R (Sanneh) v Secretary of State for Work and Pensions [2017] UKSC 73 [2019] AC 845����������������������������� 8.1.11, 39.3.5, 59.8.15 R (Sanneh) v SSHD [2019] EWCA Civ 1319���������������������������������������������������������������������������������������������������������������������������� 18.1.6 R (Sardar) v Watford Borough Council [2006] EWHC 1590 (Admin)�������������������������������������������������������������������������������������� 36.4.7 R (Sathanantham) v SSHD [2016] EWHC 1781 (Admin) [2016] 4 WLR 128�������������������������������������������������� 7.5.3, 39.3.1, 57.3.12 R (Sathivel) v SSHD [2018] EWHC 913 (Admin) [2018] 4 WLR 89��������������������������������������������������������������������������������������� 3.1.20 R (Saunders) v Independent Police Complaints Commission [2008] EWHC 2372 (Admin) [2009] 1 All ER 379������������������ 9.2.10 R (Saunders) v Tendring District Council [2003] EWHC 2977 (Admin)�������������������������������������������������������������������������������� 55.1.25 R (Savage) v Hillingdon LBC [2010] EWHC 88 (Admin) [2010] PTSR 1859��������������������������������������������������������������������������� 6.2.8 R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929�������������������������������������������������������������������������������������� 4.5.10, 6.2.3, 18.1.6, 39.2.13, 40.2.3, 41.2.2–3, 41.2.13, 61.3.3, 61.3.10, 64.2.4 R (Save our Surgery Ltd) v Joint Committee of Primary Care Trusts [2013] EWHC 439 (Admin) [2013] ACD 70���������������� 62.3.6 R (Save our Surgery Ltd) v Joint Committee of Primary Care Trusts [2013] EWHC 1011 (Admin)���������������������������� 24.3.4, 38.3.9 R (Savva) v Kensington and Chelsea Royal LBC [2010] EWCA Civ 1209 [2011] PTSR 761��������������������� 64.2.3, 64.2.24, 64.3.19 R (SB (Afghanistan)) v SSHD [2018] EWCA Civ 215 [2018] 1 WLR 4457������������������������������������ 3.1.10, 10.3.3, 20.1.22, 23.3.26 R (SB) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 [2007] 1 AC 100��������������������������� 58.4.1, 58.5.1, 59.10.3, 59.10.6 R (SB) v NHS England [2017] EWHC 2000 (Admin) [2018] PTSR 576������������������������������������������������������������������������ 2.6.5, 31.2.6 R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687��������� 6.3.16, 9.1.4, 9.1.10, 13.1.5, 31.1.6–7, 31.2.3, 37.1.15, 57.1.7, 57.1.14, 58.4.1, 58.4.5, 58.5.3, 58.5.12, 58.5.15, 59.1.4, 59.8.5, 59.8.10–11, 59.8.18 R (Scarfe) v Governor of Woodhill Prison [2017] EWHC 1194 (Admin) [2017] ACD 92������������������������������������������������������� 59.2.3 R (Schmelz) v Immigration Appeal Tribunal [2004] EWCA Civ 29���������������������������������������������������������������������������������������� 11.1.16 R (Scholarstica Umo) v Commissioner for Local Administration in England [2003] EWHC 3202 (Admin) [2004] ELR 265��������������������������������������������������������������������������������������������������������������������������������������������������������������������� 36.3.27 R (Scunthorpe United Football Club Ltd) v Greater Lincolnshire LEP Ltd [2018] EWHC 3351 (Admin)������������������������������ 57.2.2 R (SDR) v Bristol City Council [2012] EWHC 859 (Admin)������������������������������������������������������������������������������������ 22.1.28, 38.2.26 R (Seabrook Warehousing Ltd) v HMRC [2010] EWCA Civ 140 [2010] STC 996������������������������������������������������������ 17.2.8, 51.2.7 R (Seabrook Warehousing Ltd) v HMRC [2019] EWCA Civ 1357���������������������������������������������������� 8.1.6, 8.1.10, 23.1.10, 23.1.17, 37.1.10, 37.1.17, 58.5.4 R (Seahawk Marine Foods Ltd) v Southampton Port Health Authority [2002] EWCA Civ 54������������������������������������������������� 17.6.7

888

TABLE OF CASES R (Secretary of State for Defence) v Pensions Appeal Tribunal [2005] EWHC 1775 (Admin)���������������������������������� 2.1.31, 22.2.28 R (Secretary of State for Foreign and Commonwealth Affairs) v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin) [2014] ACD 43������������������������������������������������������������������������������������������������ 56.3.4 R (Secretary of State for Transport) v HM Senior Coroner for Norfolk [2016] EWHC 2279 (Admin) [2016] ACD 118�������� 46.1.5 R (Sefton Metropolitan Borough Council) v Highways England [2018] EWHC 3059 (Admin)���������������������������������� 34.1.1, 39.2.8 R (Segalov) v Chief Constable of Sussex [2018] EWHC 3187 (Admin) [2019] ACD 17��������������������������������������������������������� 61.5.6 R (Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales [2016] EWCA Civ 797 [2018] 1 WLR 228������ 23.3.6 R (Selter Associates Ltd) v Leicestershire County Council [2005] EWHC 2615 (Admin)������������������������������������������������������� 50.3.6 R (Sergeant) v First Minister of Wales [2019] EWHC 739 (Admin) [2019] 4 WLR 64����������������������� 5.2.13, 41.2.9, 43.1.7, 57.4.4, 61.1.5, 61.1.17, 61.1.20, 61.1.28 R (Servier Laboratories Ltd) v National Institute for Health and Clinical Excellence [2010] EWCA Civ 346������������� 5.2.10, 64.5.2 R (SH) v Waltham Forest LBC [2019] EWHC 2160 (Admin)������������������������������������������������������������������������������������� 20.1.21, 20.2.6 R (Shah) v Central Criminal Court [2013] EWHC 1747 (Admin) [2013] ACD 105������������������������������������������������������������������� 3.2.1 R (Sharing) v Preston County Court [2012] EWHC 515 (Admin)������������������������������������������������������������������������������������������� 32.3.20 R (Shasha) v Westminster City Council [2016] EWHC 3283 (Admin) [2017] PTSR 306�������������������������������������������������������� 64.4.5 R (Shaw) v Secretary of State for Education [2020] EWHC 2216 (Admin)���������������� 11.1.3, 21.4.4, 31.2.5, 34.4.6, 34.4.12, 39.3.5 R (Shepherd) v NHS Commissioning Board [2018] EWCA Civ 2849 [2019] PTSR 790����������������������������������������������� 4.6.3, 34.5.2 R (Shergill) v Harrow Crown Court [2005] EWHC 648 (Admin)������������������������������������������������������������������������������� 19.2.25, 26.1.9 R (Shi) v King’s College London [2008] EWHC 857 (Admin)����������������������������������������������������������������������������������������������� 36.3.30 R (Shields) v Criminal Injuries Compensation Appeals Panel [2001] ELR 164���������������������������������������������������������� 31.3.5, 64.3.21 R (Shields) v Crown Court at Liverpool [2001] EWHC Admin 90 [2001] UKHRR 610�������������������������������������������������������� 32.2.12 R (Shields) v Secretary of State for Justice [2008] EWHC 3102 (Admin) [2010] QB 150������������������������������� 6.3.13, 6.3.17, 34.3.3 R (Shiner) v HMRC [2010] EWCA Civ 558���������������������������������������������������������������������������������������������������������������������������� 23.1.10 R (Shirley) v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 22 [2019] 2 CMLR 503������������������������������������������������������������������������������������������������������������������������������������������������������������������ 8.1.4 R (Shoesmith) v Ofsted [2010] EWHC 852 (Admin)���������������������������������������������������������������������������������������������������������������� 17.3.2 R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459��������������������������������������������������������� 4.4.4, 4.4.6, 15.1.2, 16.5.1, 23.3.19, 31.2.5, 34.5.9, 36.3.21, 36.3.23, 36.3.31, 44.3.2, 61.2.2, 61.5.1, 61.5.6 R (Short) v Police Misconduct Tribunal [2020] EWHC 385 (Admin) [2020] ACD 47������������������������������������� 10.3.2, 16.5.4, 36.3.6 R (Shrewsbury and Atcham Borough Council) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148 [2008] 3 All ER 548���������������������������������������������������������������������������������������������������� 5.1.3, 39.2.8, 44.1.5 R (Shropshire and Wrekin Fire Authority) v SSHD [2019] EWHC 1967 (Admin) [2019] PTSR 2052������������������������������������ 4.1.19 R (Shutt) v Secretary of State for Justice [2012] EWHC 851 (Admin)�������������������������������������������������������������������������� 4.2.8, 50.4.14 R (Siborurema) v Office of the Independent Adjudicator [2007] EWCA Civ 1365������������������������������������������������������� 34.1.3, 34.2.6 R (Silvera) v HM Senior Coroner for Oxfordshire [2017] EWHC 2499 (Admin) [2017] ACD 135����������������������������������������� 59.2.4 R (Sim) v Parole Board [2003] EWCA Civ 1845 [2004] QB 1288�������������������������������������������������������������������������������������������� 4.5.10 R (Simonis) v Arts Council England [2020] EWCA Civ 374������������������������������������������������������������������������������ 8.1.1, 8.1.9, 37.1.21 R (Simply Learning Tutor Agency Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 2461 (Admin)������������������������������������������������������������������������������������������������������������������������������������ 24.2.7, 24.2.13 R (Simpson) v Chief Constable of Greater Manchester Police [2013] EWHC 1858 (Admin) [2014] ACD 20���������������������������������������������������������������������������������������������������������������������������������������������� 34.1.1, 34.5.11, 54.2.5 R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437 [2012] QB 394������������������������ 18.2.9, 52.2.5, 58.5.4 R (Sinclair Gardens Investments (Kensington) Ltd v Lands Tribunal [2004] EWHC 1910 (Admin) [2005] EWCA Civ 1305 [2006] 3 All ER 650�������������������������������������������������������������������������������������������� 22.3.2, 32.3.20, 36.3.24 R (Singh) v Cardiff City Council [2012] EWHC 1852 (Admin)�������������������������������������������������������������������� 13.3.2, 36.3.25, 50.4.14 R (Singh) v SSHD [2018] EWCA Civ 2861����������������������������������������������������������������������������������������������������������������������������� 17.3.11 R (Singh) v SSHD [2019] EWCA Civ 1014 [2019] Imm AR 1275������������������������������������������������������������������������������� 2.2.8, 21.1.28 R (Sisangia) v Director of Legal Aid Casework [2016] EWCA Civ 24 [2016] 1 WLR 1373���������������������������������������� 31.4.2, 45.2.5 R (Sissen) v Newcastle Upon Tyne Crown Court [2004] EWHC 1905 (Admin) [2005] Env LR 349������������������������������������ 36.3.28 R (Sivanesan) v SSHD [2008] EWHC 1146 (Admin)�������������������������������������������������������������������������������������������������������������� 64.3.14 R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738 [2003] 1 WLR 475������������������������ 22.2.26, 28.1.7–8, 32.3.20, 36.3.11, 36.3.18 R (Sky Blue Sports & Leisure Ltd) v Coventry City Council [2013] EWHC 3366 (Admin) [2014] ACD 48������������ 10.4.8, 17.5.20 R (SL) v Westminster City Council [2003] UKSC 27 [2013] 1 WLR 1445���������������������������������������������������������������������������� 22.2.12 R (Slade) v HM Attorney General [2018] EWHC 3573 (Admin) [2019] ACD 24������������������������������������������������������ 32.3.10, 64.4.7 R (SM and Evans) v Secretary of State for Defence [2012] EWHC 1464 (Admin)���������������������������������������������������������������� 38.2.21 R (Smeaton) v Secretary of State for Health [2002] EWHC 886 (Admin)��������������������������������������������������������� 4.5.1, 18.2.3, 18.2.5, 18.4.2, 24.2.16, 46.1.14 R (Smech Properties Ltd) v Runnymede Borough Council [2016] EWCA Civ 42 [2016] JPL 677������������������������������������������ 23.3.2 R (Smith) v Castle Point Borough Council [2019] EWHC 2019 (Admin)�������������������������������������������������������������������������������� 16.4.4 R (Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) (2003) 6 CCLR 251��������������������������������������������� 62.3.11 R (Smith) v HM Assistant Coroner for North West Wales [2020] EWHC 781 (Admin)��������������������������������������������������������� 22.4.14 R (Smith) v Land Registry (Peterborough) [2010] EWCA Civ 200 [2011] QB 413���������������������������������������������������������������� 27.2.12 R (Smith) v NE Derbyshire PCT [2006] 1 WLR 3315����������������������������������������������������������������������������������������������������������������� 4.4.2 R (Smith) v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291 [2006] 1 WLR 3315��������������������������������������������������������������������������������������������������������������������������� 4.2.5, 15.1.2, 23.3.31, 36.3.23 R (Smith) v North East Derbyshire Primary Care Trust [2006] EWHC 1338 (Admin)����������������������������������������������������������� 36.3.33 R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 [2011] 1 AC 1������������������������� 4.5.11, 9.1.18, 24.2.15, 59.2.4

889

TABLE OF CASES R (Smith) v Parole Board [2003] EWCA Civ 1014 [2003] 1 WLR 2548�������������������������������������������������������������������������������� 22.1.23 R (Smith) v SSHD [2004] EWCA Civ 99 [2004] QB 1341 [2005] UKHL 51 [2006] 1 AC 159��������������������������������������������� 65.1.14 R (SmithKline Beecham) v Advertising Standards Authority 17th January 2001 unrep��������������������������������������������������������� 55.1.17 R (Soar) v Secretary of State for Justice [2015] EWHC 392 (Admin)������������������������������������������������������������������������������������� 36.3.12 R (Soltany) v SSHD [2020] EWHC 2291 (Admin)������������������������������������������������������������������������������ 16.4.2, 16.6.5, 17.3.11, 17.6.7 R (Soma Oil and Gas Ltd) v Director of the Serious Fraud Office [2016] EWHC 2471 (Admin) [2016] ACD 130�������������� 32.3.12 R (Somerset County Council) v Secretary of State for Education [2020] EWHC 1675 (Admin)���������������������� 6.2.7, 10.1.7, 51.1.4, 51.1.10, 51.2.4, 57.4.3 R (Sood) v SSHD [2015] EWCA Civ 831 [2016] Imm AR 61������������������������������������������������������������������������������������������������ 41.2.12 R (South Cambridgeshire District Council) v First Secretary of State [2005] EWHC 1746 (Admin) [2006] LGR 529�������������������������������������������������������������������������������������������������������������������������������������������������������������������� 32.1.10 R (South Gloucestershire Local Education Authority) v South Gloucestershire Schools Appeal Panel [2001] EWHC Admin 732 [2002] ELR 309����������������������������������������������������������������������������������������������������������������������������� 9.3.9 R (South Staffordshire and Shropshire Healthcare NHS Foundation Trust) v Managers of St George’s Hospital [2016] EWHC 1196 (Admin) [2017] 1 WLR 1528���������������������������������������������������������������������������������������������������������������� 2.1.32 R (South Tyneside Metropolitan Borough Council) v Lord Chancellor [2007] EWHC 2984 (Admin)���������������������������������� 29.3.13 R (South Wales Sea Fisheries Committee) v National Assembly for Wales [2001] EWHC Admin 1162������������������� 24.3.15, 34.1.3 R (Southall) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 1002���������������������������������������� 12.3.3 R (Sovio Wines Ltd) v Food Standards Agency [2009] EWHC 382 (Admin)��������������������������������������������������������������������������� 40.2.4 R (SP) v SSHD [2004] EWCA Civ 1750����������������������������������������������������������������������������������������������������������������������������������� 36.4.8 R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297������������������������������������������ 2.2.8, 3.1.2, 5.4.7–8, 19.2.19, 19.3.8, 21.5.14, 22.1.24, 22.1.26, 23.3.29 R (SPCMA SA) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2610 (Admin)���������������������� 21.2.25 R (Spencer) v City of Westminster Magistrates’ Court [2017] EWHC 3603 (Admin) [2018] ACD 21������������������������������������ 61.6.7 R (Spiro) v Immigration Appeal Tribunal [2001] EWCA Civ 2094 [2002] Imm AR 356������������������������������������������������������� 22.4.10 R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin) [2019] EMLR 393�������������������������������������������� 21.5.27 R (Squire) v Shropshire Council [2019] EWCA Civ 888 [2020] 1 CMLR 2������������������������� 13.5.15, 16.4.6, 29.5.8, 51.1.6, 65.1.11 R (Sri Lalithambika Foods Ltd) v SSHD [2019] EWHC 761 (Admin)��������������������������������������������������������� 17.2.7, 17.3.11, 18.1.34 R (Srinivasans Solicitors) v Croydon County Court [2011] EWHC 3615 (Admin)���������������������������������������������������������������� 47.1.10 R (SSHD) v Chief Asylum Support Adjudicator [2003] EWHC 269 (Admin) [2003] EWCA Civ 1673���������������������������������� 24.4.4 R (SSHD) v Immigration Appeal Tribunal [2001] EWHC Admin 1067 [2002] INLR 116������������������������������������������������������� 3.2.18 R (SSHD) v Inner West London Assistant Deputy Coroner [2010] EWHC 3098 (Admin) [2011] 1 WLR 2564������������������� 35.2.11 R (SSHD) v Mental Health Review Tribunal [2002] EWCA Civ 1868 (2003) 6 CCLR 319���������������������������������������������������� 18.2.5 R (SSHD) v Mental Health Review Tribunal [2004] EWHC 1029 (Admin)��������������������������������������������������������������������������� 22.2.17 R (SSHD) v MHRT [2005] EWCA Civ 1616����������������������������������������������������������������������������������������������������������������������������� 43.1.5 R (SSP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin) [2016] Med LR 473������������������������������������ 61.7.11 R (St Helens Borough Council) v Manchester Primary Care Trust [2008] EWCA Civ 931������������������������������������������������������ 17.3.1 R (Stace) v Milton Keynes Magistrates Court [2006] EWHC 1049 (Admin)�������������������������������������������������������������������������� 36.3.28 R (Staff Side of the Police Negotiating Board) v Secretary of State for Work and Pensions [2011] EWHC 3175 (Admin)�������������������������������������������������������������������������������������������������������������������������������������������������� 52.2.7 R (Staff Side of the Police Negotiating Board) v SSHD [2008] EWHC 1173 (Admin)������������������������������������������������������������ 54.2.5 R (Stamford Chamber of Trade & Commerce) v Secretary of State for Communities & Local Government [2010] EWCA Civ 992���������������������������������������������������������������������������������������������������������������������� 4.5.9, 24.2.12, 24.2.14, 31.1.7 R (States of Guernsey) v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 1847 (Admin) [2016] 4 WLR 145�������������������������������������������������������������������������������������������������� 34.4.12, 58.3.24 R (Steer) v Shepway District Council [2018] EWHC 238 (Admin) [2018] ACD 39����������������������������������������������������� 18.1.6, 64.3.4 R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 [2020] AC 1����������������� 12.2.7, 12.2.10, 13.1.1, 37.1.12, 37.1.20, 58.5.10, 59.8.18 R (Stellato) v SSHD [2007] UKHL 5 [2007] 2 AC 70������������������������������������������������������������������������������������������������������������� 29.3.12 R (Stephens) v Parole Board [2020] EWHC 1486 (Admin)����������������������������������������������������������������������������������������������������� 65.1.14 R (Stephenson) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 519 (Admin) [2019] PTSR 2209����������������������������������������������������������������������������������������� 51.1.5, 62.3.5–6, 62.3.8 R (Stephenson) v Secretary of State for Justice [2010] EWHC 3134 (Admin)�������������������������������������������������������������������������� 17.5.3 R (Stephenson) v Stockton-on-Tees Borough Council [2005] EWCA Civ 960 [2006] LGR 135������������������������������������������� 50.4.14 R (Stern) v Horsham District Council [2013] EWHC 1460 (Admin) [2013] PTSR 1502������������������������������������������� 29.3.13, 36.1.6 R (Stody Estate Ltd) v Secretary of State for Environment, Food and Rural Affairs [2018] EWHC 378 (Admin)�������������������������������������������������������������������������������������������������������������������������������������� 24.4.1, 46.1.19 R (Stokes) v Parole Board [2020] EWHC 1885 (Admin)���������������������������������������������������������������������������������������������������������� 64.3.4 R (Stott) v Secretary of State for Justice [2018] UKSC 59 [2020] AC 51������������������������������������������������� 59.8.5, 59.8.7, 59.8.11–12 R (Stratton) v Chief Constable of Thames Valley Police [2013] EWHC 1561 (Admin) [2013] ACD 110�������������������������������� 32.3.7 R (Strickson) v Preston County Court [2007] EWCA Civ 1132���������������������������������������������������������������������������������� 32.3.20, 47.1.3 R (Structadene Ltd) v Hackney LBC [2001] 2 All ER 225���������������������������������������������������������������������������� 24.4.23, 34.5.7, 41.2.13 R (Sturnham) v Parole Board [2013] UKSC 23 [2013] 2 AC 254������������������������������������������������������������������� 9.5.3, 59.4.5, 59.10.13 R (Suleiman) v SSHD [2017] EWHC 3308 (Admin) [2018] ACD 18������������������������������������������������������������������������������������� 22.1.15 R (Suliman) v SSHD [2020] EWHC 326����������������������������������������������������������������������������������������������������������������������������������� 64.3.4 R (Sullivan) v Maidstone Crown Court [2002] EWHC 967 (Admin) [2002] 1 WLR 2747���������������������������� 5.2.7, 32.2.10, 32.2.13 R (Sullivan) v Warwick District Council [2003] EWHC 606 (Admin) [2003] 2 PLR 56�������������������������������������������������������� 65.1.12 R (Suny) v SSHD [2019] EWCA Civ 1019������������������������������������������������������������������������������������������������������ 21.2.26, 57.4.1, 57.4.4 R (Suppiah) v SSHD [2011] EWHC 2 (Admin)������������������������������������������������������������������������������������������������������������� 6.3.17, 32.5.6

890

TABLE OF CASES R (Supportways Community Services Ltd) v Hampshire County Council (No.2) [2006] EWCA Civ 1170 (2006) 9 CCLR 498��������������������������������������������������������������������������������������������������������������������������������������������������������������� 18.1.25, 25.2.3 R (Supportways) v Hampshire County Council [2006] EWCA Civ 1035 [2006] LGR 836������������������������������������������������������ 34.5.3 R (Sussex Police Authority) v Cooling [2004] EWHC 1920 (Admin)��������������������������������������������������������������������������� 14.2.2, 18.2.8 R (Sutovic) v HM Coroner for Northern District of Greater London [2006] EWHC 1095 (Admin)���������������������������������������� 3.2.26 R (SW) v SSHD [2018] EWHC 2684 (Admin) [2019] 1 WLR 2193������������������������������������������������������������������������ 21.5.30, 39.2.14 R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin)�������������������������������������������������������������������������������������������������������������������������������������� 13.4.4, 49.4.5 R (Swords) v Secretary of State for Communities and Local Government [2007] EWCA Civ 795 [2007] LGR 757�������������������������������������������������������������������������������������������������������������������������������������������������������� 41.2.5, 64.4.11 R (SXM) v Disclosure and Barring Service [2020] EWHC 624 (Admin) [2020] 1 WLR 3259�������������������������������������� 5.2.12, 6.1.4 R (Syed) v Secretary of State for Justice [2019] EWCA Civ 367���������������������������������������������������������������������������������������������� 29.3.8 R (T) v A School [2002] EWCA Civ 1349 [2003] ELR 160�������������������������������������������������������������������������������������� 23.3.21, 26.3.12 R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35 [2015] AC 49��������� 12.2.8, 24.4.17, 32.5.7, 43.1.8, 59.6.8 R (T) v HM Senior Coroner for West Yorkshire [2017] EWCA Civ 318��������������������������������������������������������������������� 21.5.1, 23.1.17 R (T) v Ministry of Justice [2018] EWHC 2615 (Admin) [2018] ACD 134���������������������������������������� 17.3.3, 17.6.7, 17.6.9, 22.4.18 R (T) v Secretary of State for Education [2018] EWHC 2492 (Admin)���������������������������������������������������������������������������������� 17.2.18 R (T) v Secretary of State for Health [2002] EWHC 1887 (Admin) (2003) 6 CCLR 277������������������������������������������������������� 24.4.25 R (T) v Secretary of State for Justice [2013] EWHC 1119 (Admin) [2013] ACD 88���������������������������������������������������� 6.3.8, 48.1.13 R (T) v SSHD [2010] EWHC 435 (Admin)��������������������������������������������������������������������������������������������������������������������������������� 7.5.4 R (Tabbakh) v Staffordshire and West Midlands Probation Trust [2014] EWCA Civ 827 [2014] 1 WLR 4620����������������������� 32.5.5 R (Talpada) v SSHD [2018] EWCA Civ 841������������������������������������������������������������������������ 2.6.3, 3.1.1, 3.1.6, 3.1.19, 3.2.1, 11.1.3, 13.1.2, 15.1.5, 17.3.7, 17.3.12, 17.4.3, 42.2.9, 54.1.2, 54.1.7–8, 54.1.10, 61.1.5, 61.5.1 R (Tamil Information Centre) v SSHD The Times 30th October 2002�������������������������������������������������������������������������������������� 50.3.6 R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394���������� 2.6.3, 2.6.9, 3.2.16, 3.2.24, 24.4.1, 26.2.5–6, 32.2.13, 36.3.20, 49.3.1, 56.1.2–3 R (Tarmac Aggregates Ltd) v Secretary of State for Environment, Food and Rural Affairs [2015] EWCA Civ 1149 [2016] PTSR 491����������������������������������������������������������������������������������������������������� 21.4.6, 23.2.7, 24.4.3 R (Tataw) v Immigration Appeal Tribunal [2003] EWCA Civ 925 [2003] INLR 585����������������������������������������������� 21.1.28, 61.1.24 R (Tate) v Northumberland County Council [2018] EWCA Civ 1519������������������������������������������������������������������������ 4.1.20, 55.1.22 R (Taylor) v Honiton Town Council [2016] EWHC 3307 (Admin) [2017] PTSR 271�������������������������������������������������� 4.5.8, 58.3.20 R (Taylor) v Honiton Town Council [2017] EWHC 101 (Admin) [2017] 1 Costs LR 31��������������������������������������������������������� 18.1.7 R (Taylor) v Maidstone Crown Court [2003] EWHC 2555 (Admin)��������������������������������������������������������������������������������������� 64.4.15 R (Taylor) v Secretary of State for Justice [2015] EWHC 3245 (Admin) [2016] PTSR 446���������������������������������������� 39.3.6, 55.2.5 R (TB) v SSHD [2007] EWHC 3381 (Admin)������������������������������������������������������������������������������������������������������������������������� 54.1.15 R (TC Projects Ltd) v Newcastle Licensing Justices [2008] EWCA Civ 428���������������������������������������������������������������������������� 39.2.8 R (TD) v Secretary of State for Work and Pensions [2020] EWCA Civ 618���������������������������������������� 3.2.3, 23.3.11, 24.2.9, 58.4.1, 58.4.3, 59.8.2, 59.8.8, 59.8.14, 59.8.17 R (Telefonica O2 Europe plc) v Secretary of State for Business & Regulatory Reform [2007] EWHC 3018 (Admin)����������� 22.2.3 R (Teleos Plc) v Customs and Excise Commissioners [2005] EWCA Civ 200 [2005] 1 WLR 3007�������������������������������������� 55.1.28 R (Terra Services Ltd) v National Crime Agency [2019] EWHC 1933 (Admin)�������������������� 10.1.1, 10.1.4, 10.4.8, 17.1.7, 21.5.15 R (Terra Services Ltd) v National Crime Agency [2020] EWHC 130 (Admin) [2020] 1 WLR 1149������������������������� 21.4.4, 22.4.22 R (Terra Services Ltd) v National Crime Agency [2020] EWHC 1640 (Admin)�������� 5.3.4, 11.1.8, 17.1.14, 21.4.4, 36.3.18, 51.1.5 R (Tesco Stores Ltd) v Birmingham Magistrates’ Court [2020] EWHC 799 (Admin) [2020] 2 Cr App R 14�������������������������� 10.1.8 R (Tesfay) v SSHD [2016] EWCA Civ 415 [2016] 1 WLR 4853������������������������������������������������������������������������������������ 2.6.1, 18.5.7 R (TG) v Lambeth LBC [2011] EWCA Civ 526 [2012] PTSR 364��������������������������������������������������������������������������������������������� 6.2.4 R (Thamby) v SSHD [2011] EWHC 1763 (Admin)������������������������������������������������������������������������������������������������������������������� 61.6.7 R (Thames Water Utilities Ltd) v Bromley Magistrates Court [2005] EWHC 1231 (Admin)��������������������������������������������������� 24.4.4 R (Thames Water Utilities Ltd) v Water Services Regulation Authority [2012] EWCA Civ 218 [2012] PTSR 1147��������������� 16.4.7 R (Thapa) v SSHD [2014] EWHC 659 (Admin) [2014] 1 WLR 4138�������������������������������������������������������������������������������������� 39.2.2 R (Thapar) v SSHD [2017] EWCA Civ 2080������������������������������������������������������������������������������������������������������������������������������� 3.1.8 R (the Transport and General Workers Union) v Walsall Metropolitan Borough Council [2001] EWHC Admin 452 [2002] ELR 329����������������������������������������������������������������������������������������������������������� 20.1.25, 24.4.23 R (Theophilus) v London Borough of Lewisham [2002] EWHC 1371 (Admin) [2002] 3 All ER 851����������������������� 40.2.4, 56.1.10 R (Thomas) v Hywel Dda University Health Board [2014] EWHC 4044 (Admin) [2015] ACD 37����������������������������������������� 62.3.4 R (Thompson) v Fletcher (HM Inspector of Taxes) [2002] EWHC 1447 (Ch) [2002] EWHC 1448 (Admin) [2002] STC 1149��������������������������������������������������������������������������������������������������������������������������������������������������������������������� 3.2.22 R (Thompson) v Law Society [2004] EWCA Civ 167 [2004] 1 WLR 2522��������������������������������������������������������������� 31.3.9, 61.1.27 R (Thompson) v SSHD [2003] EWHC 538 (Admin)��������������������������������������������������������������������������������������������������� 40.2.7, 64.3.21 R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794�������������������������������������������������������������������������������������������������������������� 3.2.5, 22.2.17, 23.3.21, 26.1.2, 26.1.12, 26.1.17, 26.3.6, 26.3.17, 26.4.3–4 R (Thurloe Lodge Ltd) v Royal Borough of Kensington & Chelsea [2020] EWHC 2381 (Admin)����������������������������� 4.1.15, 17.1.5 R (TI) v Bromley Youth Court [2020] EWHC 1204 (Admin) [2020] 2 Cr App R 22�������������������������������������� 20.1.14, 24.4.9, 57.1.9 R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 [2015] 1 WLR 3820��������������������������������������������������������������������������������������������������� 9.1.5, 37.1.7, 37.1.19, 58.4.3, 59.8.9, 59.8.18 R (TM (Kenya)) v SSHD [2019] EWCA Civ 784 [2019] 4 WLR 109���������������������������������� 22.4.14, 45.2.2, 50.3.1, 50.3.5, 50.3.11

891

TABLE OF CASES R (TN (Vietnam)) v First-tier Tribunal (Immigration and Asylum Chamber) [2018] EWHC 3546 (Admin) [2019] 1 WLR 2675��������������������������������������������������������������������������������������������������������������������������������������������������������������� 47.1.15 R (TN (Vietnam)) v SSHD [2018] EWCA Civ 2838 [2019] 1 WLR 2647�������������������������������������������������������� 3.2.24, 44.3.1, 44.3.6 R (Tofik) v Immigration Appeal Tribunal [2003] EWCA Civ 1138������������������������������������������������������������������������������� 13.3.2, 64.2.2 R (Torpey) v DPP [2019] EWHC 1804 (Admin) [2019] ACD 98�������������������������������������������������������� 32.3.4, 57.4.1, 57.4.4, 64.3.14 R (ToTel Ltd) v First-tier Tribunal [2012] EWCA Civ 1401 [2013] QB 860��������������������������������������������������������������������������� 12.3.14 R (Towry Law Financial Services plc) v Financial Services Ombudsman Service Ltd [2002] EWHC 1603 (Admin)������������������������������������������������������������������������������������������������������������������������������������ 18.1.19, 18.2.8 R (TP) v Secretary of State for Work and Pensions [2019] EWHC 1127 (Admin) [2019] PTSR 2123 [2020] EWCA Civ 37������������������������������������������������������������������������������������������������������������� 5.2.3, 10.1.1, 10.4.13, 16.3.5, 23.3.9, 37.1.19, 37.1.21, 59.8.11, 59.8.14, 59.8.17 R (TR) v Asylum and Immigration Tribunal [2010] EWHC 2055 (Admin)������������������������������������������������������������������������������ 24.4.9 R (Tracey) v Cambridge University Hospitals NHS Foundation Trust [2012] EWHC 3670 (Admin) [2013] ACD 33 [2014] EWCA Civ 822 [2015] QB 543����������������������������������������������������������������������������� 17.3.16, 23.3.33, 31.1.6 R (Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 153 (Admin) [2004] Env LR 828 [2004] EWCA Civ 1580 [2005] 1 WLR 1267���������������������������������������� 58.5.15 R (Trans Berckx BVBA) v North Avon Magistrates’ Court [2011] EWHC 2605 (Admin)������������������������������������������������������� 56.2.5 R (Tree and Wildlife Action Committee Ltd) v Forestry Commissioners [2007] EWHC 1623 (Admin) [2008] Env LR 100������������������������������������������������������������������������������������������������������������������������������������������������������������������ 5.2.10 R (Treohan) v Inner London Crown Court [2018] EWHC 1137 (Admin) [2019] 1 Cr App R 8����������������������� 32.2.5, 49.4.3, 57.4.5 R (Tromans) v Cannock Chase District Council [2004] EWCA Civ 1036 [2004] LGR 735��������������������������������������� 16.5.2, 61.7.11 R (Trustees of the Friends of the Lake District) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 281���������������������������������������������������������������������������������������������������������������������������� 18.2.5 R (Tshikangu) v Newham LBC [2001] EWHC Admin 92����������������������������������������������������������������������� 4.5.5, 10.3.5, 10.3.8, 19.1.6 R (TT) v Merton LBC [2012] EWHC 2055 (Admin) [2013] PTSR 710������������������������������������������������������������������������������������� 6.2.4 R (Tu) v SSHD [2002] EWHC 2678 (Admin) [2003] Imm AR 288���������������������������������������������������������������������������������������� 24.3.10 R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 2���������������������������� 13.5.12, 34.1.4, 34.2.1, 34.2.3, 34.2.11, 34.5.10, 34.5.12, 64.2.4 R (Tucker) v Secretary of State for Social Security [2001] EWCA Civ 1646 [2002] HLR 500������������������������������������ 58.2.1, 58.3.7 R (Turpin) v Commissioner for Local Administration [2001] EWHC Admin 503 [2003] LGR 133������������������������������������������ 4.4.8 R (TW) v Hillingdon LBC (No.2) [2019] EWHC 157 (Admin)������������������������������������������������������������������������ 4.5.8, 24.2.9, 24.4.30 R (Uddin) v Leeds Crown Court [2013] EWHC 2752 (Admin) [2014] 1 WLR 1742������������������������������������������������� 22.1.15, 32.2.5 R (Ullah) v SSHD [2003] EWCA Civ 1366����������������������������������������������������������������������������������������������������������������������������� 17.3.14 R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323����������������������������������������������������������� 4.5.11, 6.3.5, 9.1.17–18, 9.2.4, 9.2.11, 22.2.27, 33.1.6, 59.3.4, 59.10.3 R (Underwritten Warranty Co Ltd) v FENSA Ltd [2017] EWHC 2308 (Admin) [2017] ACD 125������������������������������ 34.1.2, 34.5.1 R (UNISON) v First Secretary of State [2006] EWHC 2373 (Admin) [2007] LGR 188������������������������������������������������������������ 4.2.4 R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037��������������������������������� 1.1.1, 5.2.3, 7.2.3, 7.5.1–3, 8.1.3, 8.1.11, 9.1.5, 11.1.1, 24.4.1, 29.3.23, 32.5.8, 33.2.30, 35.1.7, 35.2.10, 35.4.3–4, 60.1.10 R (UNISON) v NHS Wiltshire Primary Care Trust [2012] EWHC 624 (Admin) [2012] ACD 84�������������������������������������������������������������������������������������������������������������������� 22.4.18, 26.4.3, 38.2.19, 38.3.5, 38.3.8 R (UNISON) v Secretary of State for Health [2010] EWHC 2655 (Admin)��������������������������������������������������� 13.5.5, 24.4.13, 62.2.1 R (United Cabbies Group (London) Ltd) v Westminster Magistrates’ Court [2019] EWHC 409 (Admin)�������������������������������������������������������������������������������������������������������������� 63.1.3, 63.3.1, 63.3.3, 64.3.21 R (United Company Rusal Plc) v London Metal Exchange [2014] EWCA Civ 1271 [2015] 1 WLR 1375������������� 62.1.3–4, 62.3.6 R (United Kingdom Renderers Association Ltd) v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 749 [2003] Env LR 178������������������������������������������������������������������������������������������������� 50.2.3 R (Uplands Junior School Governors) v Leicester City Council [2013] EWHC 4128 (Admin) [2014] ELR 143���������������������� 4.2.5 R (Uttley) v SSHD [2004] UKHL 38 [2004] 1 WLR 2278������������������������������������������������������������������������������������������������������ 59.10.2 R (V) v Independent Appeal Panel for Tom Hood School [2010] EWCA Civ 142 [2010] PTSR 1462���������������������������������� 22.2.17 R (Vale of White Horse DC) v SSCLG [2009] EWHC 1847 (Admin)�������������������������������������������������������������������������������������� 16.4.5 R (Valentines Homes & Construction Ltd) v HMRC [2010] EWCA Civ 345����������������������������������� 2.1.24, 21.1.28, 27.1.5, 27.3.17 R (Van der Pijl) v Kingston Crown Court [2012] EWHC 3745 (Admin) [2013] 1 WLR 2706����������������������������������������������� 46.1.12 R (Varma) v Duke of Kent [2004] EWHC 1705 (Admin) [2004] ELR 616����������������������������������������������������� 32.1.5, 50.3.7, 61.6.11 R (Varma) v Redbridge Magistrates’ Court [2009] EWHC 836 (Admin)�������������������������������������������������������������������� 18.1.18, 18.2.7 R (VC) v SSHD [2018] EWCA Civ 57 [2018] 1 WLR 4781����������������������������������������������������������������������������������������������������� 23.3.8 R (Verner) v Derby City Council [2003] EWHC 2708 (Admin) [2004] LGR 786�������������������������������������������������������������������� 34.5.9 R (Vieira) v Camden LBC [2012] EWHC 287 (Admin)���������������������������������������������������������������������������������������������������������� 61.1.21 R (Viggers) v Pensions Appeal Tribunal [2006] EWHC 1066 (Admin)���������������������������������������������������������������������������������� 55.3.14 R (Vincent) v Secretary of State for Work and Pensions [2020] EWHC 1976 (Admin)������������������������������������������������������������ 59.8.4 R (VIP Communications Ltd) v SSHD [2019] EWHC 994 (Admin) [2019] ACD 69������������������������������������������ 4.1.5, 4.1.16, 5.2.7, 11.1.8, 29.3.23, 46.1.17 R (Viridor Waste Management) v HMRC [2016] EWHC 2502 (Admin) [2016] 4 WLR 165��������������������������������������� 3.1.11, 18.1.6 R (Visvaratnam) v Brent Magistrates’ Court [2009] EWHC 3017 (Admin)���������������������������������������������������������������� 17.1.4, 32.3.15 R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2001] EWCA Civ 239 [2002] QB 235 (CA) [2003] UKHL 58 [2004] 2 AC 280����������������������������������������������������������������������������� 30.1.12, 55.3.7, 56.3.4 R (Vote Leave Ltd) v Electoral Commission [2019] EWCA Civ 1938 [2019] 4 WLR 157�������������������������������� 6.1.4, 6.1.8, 23.1.17 R (W (A Minor) v Leeds Crown Court [2011] EWHC 2326 (Admin) [2012] 1 Cr App R 162������������������������������������������������� 29.1.8

892

TABLE OF CASES R (W) v Commissioner of Police for the Metropolis [2006] EWCA Civ 458 [2007] QB 399�������������������������������������� 4.5.10, 53.1.9 R (W) v Doncaster Metropolitan Borough Council [2004] EWCA Civ 378 [2004] LGR 743���������������������������������������������������� 9.5.5 R (W) v Governors of B School [2001] LGR 561 (CA)����������������������������������������������������������������������������������������������� 34.1.6, 58.3.25 R (W) v Metropolitan Police Commissioner [2005] EWHC 1586 (Admin) [2005] 1 WLR 3706�������������������������������� 7.6.8, 11.1.13 R (W) v Secretary of State for Education [2011] EWHC 3256 (Admin) [2012] ELR 172������������������������������ 16.6.3, 22.1.26, 54.2.6 R (W) v Secretary of State for Health [2015] EWCA Civ 1034 [2016] 1 WLR 698��������������������������������������������������������������� 35.1.11 R (W) v Sheffield City Council [2005] EWHC 720 (Admin)�������������������������������������������������������������������������������������������������� 20.1.21 R (W) v SSHD [2019] EWHC 254 (Admin)�������������������������������������������������������������������������������������������������������������������� 5.4.4, 56.1.2 R (W) v SSHD [2020] EWHC 1299 (Admin)����������������������������������������������������������������������������� 7.6.3, 9.1.12, 24.4.8, 29.5.6, 32.5.5, 32.5.9, 32.5.11, 35.2.17, 39.2.13, 48.1.11 R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292����������������������������������������� 17.2.16, 41.2.20, 61.7.3, 61.7.5, 62.2.10 R (Wainwright) v Richmond upon Thames LBC [2001] EWHC 1090 (Admin)��������������������������������������������������������������������� 23.3.31 R (Wainwright) v Richmond upon Thames LBC [2001] EWHC Admin 1090������������������������������������������������������������ 61.6.3, 61.6.16 R (Waite) v Hammersmith and Fulham LBC [2002] EWCA Civ 482 [2003] HLR 24�������������������������������������������������������������� 9.1.16 R (Walker) v Secretary of State for Justice [2009] UKHL 22 [2010] 1 AC 553������������������������������������������������ 13.5.2, 24.2.9, 57.4.2 R (Wall) v Brighton and Hove City Council [2004] EWHC 2582 (Admin) [2004] 4 PLR 115�������������������������������������� 4.2.9, 64.4.4 R (Walleed) v Secretary of State for Justice [2019] EWHC 984 (Admin)������������������������������������������������������������������������������� 55.3.13 R (Walmsley) v Lane [2005] EWCA Civ 1540 [2006] LGR 280��������������������������������������������������������������������� 6.2.3, 23.2.10, 55.1.27 R (Wandsworth LBC) v Schools Adjudicator [2003] EWHC 2969 (Admin) [2004] ELR 274����������������������������������������������� 58.3.24 R (Wandsworth LBC) v Secretary of State for Transport [2005] EWHC 20 (Admin)������������������������������������������������������������� 24.4.26 R (Wani) v SSHD [2005] EWHC 2815 (Admin) [2006] Imm AR 125���������������������������������������������������������������������������������������� 4.6.4 R (Ward) v Hillingdon LBC [2001] EWHC Admin 91 [2001] LGR 457���������������������������������������������������������������������������������� 12.2.2 R (Ward) v Hillingdon LBC [2019] EWCA Civ 692 [2019] PTSR 1738��������������������������������� 5.2.4, 14.1.7, 24.2.8, 37.1.8, 42.2.11, 55.2.4, 55.2.11, 58.4.4, 58.4.6 R (Wardle) v Crown Court at Leeds [2001] UKHL 12 [2002] 1 AC 754����������������������������������������������������������������������������������� 59.4.6 R (Ware) v Neath Port Talbot County Borough [2007] EWCA Civ 1359 [2008] LGR 176������������������������������������������������������ 4.5.10 R (Warner) v Secretary of State for Justice [2020] EWHC 1894 (Admin)�������������������������������������������������������������������������������� 63.3.3 R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 966 (Admin)����������������������������������������������������������� 4.6.5 R (Warren) v MHRT [2002] EWHC 811 (Admin) [2002] MHLR 146���������������������������������������������������������������������� 48.1.16, 64.3.22 R (Watch Tower Bible & Tract Society of Britain) v Charity Commission [2016] EWCA Civ 154 [2016] 1 WLR 2625������������������������������������������������������������������������������������������������������������������������� 36.1.2, 36.3.2, 36.3.21, 36.3.23 R (Watermead Parish Council) v Aylesbury Vale District Council [2017] EWCA Civ 152 [2018] PTSR 43����������������������������������������������������������������������������������������������������������������������������������������������� 4.1.15, 6.2.9, 64.4.12 R (Watford Grammar School for Girls) v Adjudicator for Schools [2003] EWHC 2480 (Admin) [2004] ELR 40���������������� 58.3.25 R (Watkins-Singh) v Aberdare Girls High School Governors [2008] EWHC 1865 (Admin) [2008] 3 FCR 203��������� 17.6.4, 31.2.3 R (Watson) v Dartford Magistrates Court [2005] EWHC 905 (Admin)������������������������������������������������������� 24.4.13, 32.3.16, 55.1.25 R (Watson) v Independent Office for Police Conduct [2020] EWHC 509 (Admin)�������������������������������������������������������������������� 3.2.3 R (Watson) v SSHD [2018] EWCA Civ 70 [2018] QB 912����������������������������������������������������������������������������������������� 12.1.1, 22.4.27 R (Watt) v Hackney LBC [2016] EWHC 1978 (Admin) [2016] ACD 115�������������������������������������������������������������������������������� 49.3.5 R (Watts) v Bedford Primary Care Trust [2004] EWCA Civ 166�������������������������������������������������������������������������������������������� 23.2.12 R (WB) v Leeds School Organisation Committee [2002] EWHC 1927 (Admin) [2003] ELR 67������������������������������ 16.5.6, 61.7.10 R (We Love Hackney Ltd) v Hackney LBC [2019] EWHC 1007 (Admin)������������������������������������������������� 18.1.27, 18.4.13, 21.5.24 R (Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin) [2009] 1 All ER 17 [2009] EWCA Civ 587 [2010] 1 WLR 363���������������������������������������������������������������������������������������� 9.4.4, 23.2.12, 24.2.7, 34.1.3, 34.5.2, 34.5.7, 41.2.12 R (Webb) v Bristol City Council [2001] EWHC Admin 696������������������������������������������������������������������������� 19.3.4, 20.1.13, 21.1.28 R (Webster) v Secretary of State for Exiting the European Union [2018] EWHC 1543 (Admin) [2019] 1 CMLR 8���������������������������������������������������������������������������������������������������������������������������������������� 11.1.22, 21.3.5, 26.1.15 R (Webster) v Swindon Local Safeguarding Children Board [2009] EWHC 2755������������������������������������������������������������������� 53.1.9 R (Weed) v Commissioner of Police for the Metropolis [2020] EWHC 287 (Admin)�������������������������������������������������������������� 34.5.9 R (Wellington) v SSHD [2008] UKHL 72 [2009] AC 335������������������������������������������������������������������������������������������������������� 11.1.15 R (Wells) v Parole Board [2019] EWHC 2710 (Admin) [2019] ACD 146�������������������������������������������� 32.4.5, 48.1.9, 57.3.4, 57.4.4 R (Welsh Language Commissioner) v National Savings and Investments [2014] EWHC 488 (Admin) [2014] ACD 95������������������������������������������������������������������������������������������������������������������������������������������������������������������������ 62.2.5 R (WEN) v SSHD [2019] EWHC 2104 (Admin)������������������������������������������������������������������������������������� 2.6.2, 51.2.5, 57.4.4, 64.3.7 R (Werner) v Inland Revenue Commissioners [2002] EWCA Civ 979 [2002] STC 1213�������������������������������������������������������� 23.1.9 R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 [2016] 1 WLR 3923������������������������������������������������������������������������������ 6.1.8, 23.3.17–18, 24.3.16, 50.4.3, 52.1.1, 57.1.4, 62.1.5 R (West) v Lloyds of London [2004] EWCA Civ 506 [2004] 3 All ER 251���������������� 9.4.4, 21.5.30, 23.1.17, 34.1.4, 34.2.8, 34.5.3 R (West) v Parole Board [2002] EWCA Civ 1641 [2003] 1 WLR 705 [2005] UKHL 1 [2005] 1 WLR 350����������������������������������������������������������������������������������������������������������������������������������������� 31.3.10, 59.4.5, 61.7.4 R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 [2002] 1 WLR 2956��������������������������������������������������������������������������������������������������������������������������������� 29.1.3–5, 29.3.25, 41.2.19 R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) [2018] PTSR 26��������������������������������������������������������������������������������������������������� 4.1.15, 4.1.17, 22.1.24, 61.1.12, 61.5.5–6, 62.1.3 R (Wheeler) v Assistant Commissioner of the Metropolitan Police [2008] EWHC 439 (Admin)��������������������������������������������� 64.3.3 R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin)����������������������� 13.5.5, 29.4.14, 34.4.16, 41.2.18, 42.2.15 R (Whiston) v Secretary of State for Justice [2014] UKSC 39 [2015] AC 176������������������������������������������������������������������������� 59.4.5

893

TABLE OF CASES R (White) v Barking Magistrates’ Court [2004] EWHC 417 (Admin)�������������������������������������������������������������������������������������� 40.2.6 R (Whitston) v Secretary of State for Justice [2014] EWHC 3044 (Admin) [2015] 1 Costs LR 35���������������������������� 62.1.4, 62.2.10 R (Wilkinson) v Chief Constable of West Yorkshire [2002] EWHC 2353 (Admin) [2002] Po LR 328���������������������������������� 36.3.12 R (Wilkinson) v Commissioners of Inland Revenue [2003] EWCA Civ 814 [2003] 1 WLR 2683������������������������������� 9.5.5, 26.3.13 R (Wilkinson) v Commissioners of Inland Revenue [2005] UKHL 30 [2005] 1 WLR 1718��������������������������������� 6.1.5, 9.3.5, 9.5.3, 29.1.3, 59.8.19 R (Wilkinson) v Responsible Medical Officer Broadmoor Hospital [2001] EWCA Civ 1545 [2002] 1 WLR 419����������������������������������������������������������������������������������������������������������������� 9.1.16, 9.4.6, 15.4.5, 17.4.11, 58.3.15 R (William Hill Organisation Ltd) v Batley and Dewsbury Betting Licensing Committee [2004] EWHC 1201 (Admin)���������������������������������������������������������������������������������������������������������������������������������������������������� 4.5.8 R (Williams) v Caerphilly County Borough Council [2019] EWHC 1618 (Admin) [2020] EWCA Civ 296 [2020] PTSR 1130������������������������������������������������������������������������������������������������������������������� 4.1.14, 5.3.2, 21.4.4, 50.3.5, 55.2.11 R (Williams) v Powys County Council [2017] EWCA Civ 427 [2018] 1 WLR 439����������������������������������������������������������� 4.1.14–15 R (Williams) v SSHD [2017] EWCA Civ 98 [2017] 1 WLR 3283�������������������������������������������������������������������������������������������� 7.6.20 R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926 [2003] QB 1300��������������������������������������������������������������������������������������������������������������������������������������������� 6.3.5, 11.1.10, 11.1.13 R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926 [2003] QB 1300 [2005] UKHL 15 [2005] 2 AC 246��������������������������������������������������������������������������������������������������������������������������������� 6.3.5, 9.2.8 R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15 [2005] 2 AC 246������������������������������������������������������������������������������������������������������������������������������������������ 58.5.5, 59.10.3, 59.10.6 R (Wilson) v Prime Minister [2019] EWCA Civ 304 [2019] 1 WLR 4174������������������� 18.3.1, 18.3.5, 19.3.8, 21.2.5, 36.2.2, 49.3.7 R (Wingfield) v Canterbury City Council [2019] EWHC 1974 (Admin)��������������������������������������������� 4.1.19, 24.3.10, 26.1.7, 44.3.6 R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin)����������������������������������������� 15.1.5, 19.3.20, 22.1.24, 22.4.14 R (Wirral Health Authority) v Mental Health Review Tribunal The Times 26th November 2001������������������������������������������ 32.3.17 R (Wolverhampton Council) v South Worcestershire Clinical Commissioning Group [2018] EWHC 1136 (Admin) [2018] ACD 65���������������������������������������������������������������������������������������������������������������������������������������������������������������������� 30.1.12 R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219���������������������������������