Judicial review: the rule of law at heart?

Article by Geoffrey D Mitchell QC

The Wightman article 50 case highlighted preserving the rule of law as a particular focus for judicial review, but how far can that be taken? This article considers two recent cases of interest.

Is it possible to identify “trends” in litigation? That there are increases in certain types of litigation is undeniable. Consider the spate of cases a number of years ago on the right to a fair trial, and delay, in terms of article 6 of the European Convention on Human Rights. At present we seem to be witnessing an increase in judicial review.

Since 2016 the number of judicial review petitions presented to the court has increased by approximately 16%. Last year, 2019, saw a rise of about 8% over the 2018 figure. These petitions cover the areas that traditionally see applications to the supervisory jurisdiction of the court (immigration and asylum, prisoners’ rights, local authority decisions, etc). However, it is possible to identify an “inventive” approach by parties and their representatives in the decisions that are being challenged, matched by an appetite on the part of the court to engage with such applications. It is suggested that this can be traced to the 2018 decision in Wightman v Secretary of Sate for Exiting the European Union 2019 SC 111.

Recap on Wightman

Readers are unlikely to have forgotten Wightman. A group of MPs, MSPs and MEPs brought a petition for judicial review, seeking a declarator that specified whether, when and how a notice to leave the EU under article 50 of the Treaty on European Union could unilaterally be revoked. The Inner House agreed to refer the case to the EU Court of Justice for a preliminary ruling on the issue.

Lord Drummond Young said that the declarator sought fell “squarely within the fundamental purpose of the supervisory jurisdiction” (para 68). That “fundamental purpose” was to ensure that all acts of government were carried out within the rule of law. He would have no hesitation in rejecting arguments based on “the detailed scope of previous descriptions of the supervisory jurisdiction, if they appear to stand in the way of the proper enforcement of the rule of law” (para 67, my emphasis).

It is clear that practitioners sat up and took note of this dictum, since it appears time and again in recent applications for judicial review. We will focus on two applications in particular. One was more successful than the other, but both show a desire to challenge decisions that are perceived to breach the “rule of law”. One of them also shows the limits of Lord Drummond Young’s dictum.

McHattie v South Ayrshire Council [2020] CSOH 4

The petitioner’s son was a 32 year old man who suffered from severe learning and mobility issues. For 13 years, five days a week, he had attended an adult care centre. The centre was an important part of his life, and both he and the petitioner relied heavily on it. A business plan produced by South Ayrshire Council recommended closure of the centre. Pursuant to its obligations under the Equality Act 2010, the council was obliged to carry out an equality impact assessment prior to closure.

A decision was taken to close the centre, yet no such assessment was performed, and no consultation was carried out with the petitioner or any of the other users of the centre. The centre was due to close on 24 December 2019, the majority of the staff including the manager had accepted severance packages, and all the users of the centre, with the exception of the petitioner’s son, had accepted alternative provisions of care. The odds seemed stacked against the petitioner and his advisers.

However, the court found, first, that in failing to carry out an impact assessment, the council had failed in its duty under the Equality Act, and had acted unlawfully. Secondly, the petitioner and his family had used the centre for many years, and had a legitimate expectation that they would be consulted on any proposal that affected the future of the centre. The failure to consult “went to the heart” of the council’s decision making process, and rendered it “fundamentally flawed” (para 42). Finally, and most importantly, the court reduced the council’s decision to close the centre. The effect was that the council required to keep the centre open. As the court said, the council had brought the situation on itself. Decisions of this type could not be “taken by stealth; they must be open and transparent and comply with the duties which Parliament has imposed upon the respondent” (para 55).

This is a remarkable case. It shows what can be achieved by a determined client, skilled legal advisers and the application of judicial review principles. The core feature of the case is that the council had acted rashly and unfairly, to the prejudice of members of the public. As the court remarked, “The fundamental principle at stake is the rule of law. An illegal decision is an affront to the rule of law” (para 52). The parallels with Wightman are obvious.

Abundance Investment Ltd v Scottish Ministers [2020] CSOH 12

In this case the petitioners tested just how far the court was prepared to develop the supervisory jurisdiction of the court, in furtherance of “the proper enforcement of the rule of law”.

Under the Environmental Protection Act 1990 the Scottish ministers can make grants of financial assistance for innovative, low carbon infrastructure projects. Grants are made on condition that the balance of the funding is provided from other sources by the applicant (known as “match funding”). A company applied for a grant for the construction of an anaerobic fermentation process plant at Grangemouth. The ministers offered a grant for approximately £9 million, subject to various terms and conditions. In due course the applicant company claimed some of the grant money, but the ministers concluded that certain financial conditions of the grant agreement had not been met and refused to pay the grant.

Readers may not be surprised to learn that litigation followed. Judicial review proceedings were raised, not by the applicant company, but by two third parties: a company which operated a crowdfunding platform and which had helped provide some of the match funding; and a director of the applicant company who had invested money in the company. This immediately raised issues of competency, first, because other than in limited circumstances, contractual disputes are not amenable to judicial review; and secondly because the petitioners were not even parties to the contract.

The petitioners clearly had to accept that the source of the dispute was contractual, and that they were not the recipients of the grant. Nevertheless, they argued that the ministers were a public body. Under the 1990 Act they had been given a power to decide, and in so doing they had failed to comply with the law. Their decision to refuse payment of the grant was unlawful and irrational. Relying on Wightman, the petitioners argued that the formerly restrictive approach to competence was no longer appropriate. What was important was the proper enforcement of “the rule of law”. Judicial review existed to benefit those who did not have a direct legal right to enforce. Those were the circumstances in the present case.

The court found that, while there are very limited circumstances in which judicial review may be used to challenge decisions made by one party under a contract, that did not apply here. The elements of “the rule of law” that the petitioners sought to enforce were, in reality, the terms and conditions of the contract. Further, if parties to the contract could not use judicial review, then as a matter of principle it was difficult to see why an outsider to the contract should be allowed to use the procedure. To give third parties the right to challenge decisions of a contracting party as in “breach of the rule of law”, would make significant inroads into the principle of privity of contract, and could give rise to a multitude of actions (para 53).

Not surprisingly, the challenge was dismissed as not competent.

Unchanged foundations

It does seem that alleged breach of the rule of law has, of late, become something of a clarion call within the context of judicial review. Of course, as Lord Drummond Young pointed out, this has always been the underlying guiding principle for the court when considering applications to the supervisory jurisdiction. Yet it seems undeniable that Wightman has brought it to the fore, and inspired parties and their representatives to challenge decisions.

It remains to be seen whether it will have the effect of extending the limits of judicial review. As Abundance Investment shows, it will not be enough merely to invoke the phrase, if what is truly being attempted is alteration of the foundation stones of judicial review.

This article first appeared on the Law Society of Scotland’s Journal online on 6th April 2020Law Society of Scotland’s Journal online on 6th April 2020

The Author

Geoffrey D Mitchell QC, Ampersand Advocates

The author is grateful to the Office of the Keeper of the Rolls, Supreme Courts, Edinburgh for its assistance in the provision of certain statistical information contained within the article. The views expressed are those of the author.

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The Declaration of Arbroath – 6 April 2020 – in celebration of the 700th Anniversary today of the Declaration of Arbroath

Ampersand’s Paul Reid has written for the UK Constitutional Law Association about The Declaration of Arbroath – 6 April 2020 – in celebration of the 700th Anniversary today of the Declaration of Arbroath.

View the article here.

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McHattie v South Ayrshire Council [2020] CSOH 4

Lord Boyd of Duncansby has ruled that South Ayrshire Council acted unlawfully in deciding to close Kyle Day Adult Centre, a highly valued and much loved life line service for profoundly disabled adult and their families in Ayrshire. Dorothy Bain QC of Ampersand and Martin Crawford of Arnot Manderson appeared for the Petitioner in the Judicial Review proceedings and successfully argued that the Council had breached the duties imposed upon them under the Equality Act 2010. In a significant ruling Lord Boyd granted declarator the Council acted unlawfully in respect that (i) it failed in its duty to have regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic, namely a disability and persons who do not share that characteristic, and (ii) failed to consult with the petitioner and other users, carers and guardians of users of the Kyle Adult Day Centre who had a legitimate expectation of such a consultation.

You can read the full opinion here.

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Local Authority acted unlawfully in deciding to close Adult Centre

McHattie v South Ayrshire Council [2020] CSOH 4

You can read the full opinion here.

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‘Silk of the Year’ hat-trick for Aidan O’Neill QC

Congratulations to Ampersand’s Aidan O’Neill QC, who has retained his title as Silk of the Year at the Law Awards of Scotland.

Aidan has been in many high profile cases in the past year including successes in the so-called Scottish Brexit case (Wightman v Secretary of State) and proroguing of Parliament case (Cherry and others v Advocate General for Scotland).

While an outright winner in 2017, Aidan shared the award in 2018 with solicitor-advocate, John Scott, QC. This year, as the outright winner, makes it 3 out of 3 for Aidan.

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Inner House confirms Serco’s actions were lawful in seeking to recover possession of property provided to failed asylum seekers and concluded that Serco was not acting as a hybrid public authority

Ali (Iraq) v Serco Ltd [2019] CSIH 54

Facts

The reclaimer is a failed asylum seeker, whose appeal rights became exhausted in November 2017. The reclaimer was provided with accommodation while her asylum claim was being determined. Nearly 6 months after the asylum claim was refused. the Secretary of State served notice that asylum support and accommodation would be withdrawn. The reclaimer was to quit her accommodation by 13 June 2018. Persons provided with asylum support accommodation are excluded from the protection against eviction without court order in terms of s.23 of the Rent (Scotland) Act 1984 (“1984 Act”). A form of support is available to failed asylum seekers in terms of s.4(2) of the Immigration and Asylum Act 1999 (“1999 Act”) if they meet certain criteria. The reclaimer argued that notwithstanding (i) her asylum claim had been refused, (ii) persons provided with asylum support accommodation were excluded from the terms of s.23 of the 1984 Act, and (iii) the availability of support in terms of s.4(2) of the 1999, it was unlawful for Serco to seek to recover possession of property without a court order.

Issues

The Court identified 4 key issues:

Did the reclaimer have a right under common law preventing eviction without court order?
Did the reclaimer have a right akin to a lease created by virtue of a jus quaesitum tertio preventing eviction without court order?
Would eviction without a court order breach the reclaimer’s rights under Articles 3 or 8 of the ECHR?
Was the Lord Ordinary correct to find that Serco were a ‘hybrid public authority’ for the purpose of the Human Rights Act 1998?

Decision

Issue 1 – A common law right?

The first issue had not been argued in front of the Lord Ordinary, but the Inner House considered its substance. The reclaimer accepted that she was excluded from the statutory protection against eviction without court order. However, the statute expressly preserved any existing common law rights. The reclaimer argued that there was a right at Scots common law that prevented eviction without court order. In Conway v Glasgow City Council, however, the only preserved common law right was said to be reasonable notice. There was a weight of Inner House authority against the contention that eviction of contractual occupiers (rather than leaseholders) without court order was per se unlawful at common law. The reclaimer’s occupancy was precarious from the outset. No court process was required at common law. Accordingly, the reclaimer’s argument was rejected (at [43] – [46]).

Issue 2 – A jus quaesitum tertio?

This argument was not advanced to the Lord Ordinary, but sought to argue that Home Secretary and Serco had agreed a contract to benefit the reclaimer, and the reclaimer could enforce this agreement. The effect was said to be that a right akin to a lease was created and thus eviction without court order would be unlawful. The Court decisively rejected this argument (at [47]). Crucially, the reclaimer was averred to be in a contractual relationship directly with Serco, and the reclaimer’s argument, if correct, would have directly contradicted the specific terms of that agreement.

Issue 3 – Article 3 or 8 breach?

The Court dismissed the case under Articles 3 and 8 as having no merit (at [48]). The threat of lawful eviction could not reach the minimum severity threshold of Article 3. The Court noted that support is available under s.4 of the 1999 Act for failed asylum seekers in certain situations. The refusal or withdrawal of s.4 support carries a right of appeal. The Court raised the possibility of challenging the Secretary of State’s decision to issue a statutory notice to quit by way of judicial review, combined with interim interdict. In respect of Article 8, there were various ways in which a failed asylum seeker could raise the question of proportionality without the necessity of an eviction action having to be raised against them. Lord Hodge’s observations in R(N) v Lewisham LBC were approved as being applicable to this context.

Issue 4 – Hybrid public authority

The Lord Ordinary had concluded that Serco were exercising “functions of a public nature” and were thus would have to comply with Convention rights. The Inner House disagreed (at [52]). Fundamentally, the Court held that the exercise of the public law function remains with the Secretary of State; Serco were exercising private law functions. The Secretary of State remains answerable for the public law duty to arrange for the provision of accommodation to asylum seekers. Serco were simply performing a service under contract. Accordingly the cross appeal was allowed (at [58]).

Analysis

The Inner House rejected each of the reclaimer’s arguments. Neither Serco, nor the Home Secretary, acted unlawfully in any of the ways alleged. Moreover, Serco was not acting as a ‘hybrid public authority’.

Contrary to some commentary in the aftermath of the decision, the effect of this ruling was not that the Home Secretary can ‘outsource its statutory and international legal obligations’. Quite the reverse. As noted at [56], “the state cannot absolve itself of responsibility for such public law duties as the provision of accommodation to asylum seekers by delegating its responsibility to private bodies”.

Nor is it the case that the government can simply ‘contract out of the Human Rights Act’. Instead, as the Court noted, “responsibility for the exercise of the public law duty is not delegated, but remains with the Home Secretary”. What this means is that in this context a public law challenge is properly made against the Home Secretary, who decides whether support should be provided, and not against a private contractor.

The reality is, as the Court noted at [48], that when an asylum claim is refused the person is expected to leave the UK. If there are good reasons why a person simply cannot leave, then statutory support is available. Parliament decided to exclude those in asylum support accommodation from the statutory protection against eviction without court order that other “residential occupiers” have. In the circumstances, the Court was left with little option but to refuse the reclaiming motion.

Opinion of Inner House can be viewed here.

Representation

Ampersand’s Michael Way was instructed on behalf of the 1^st and 2^nd Respondent at Note of Argument stage in the reclaiming motion and in related interdict proceedings.

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