Unreasonable Judicial Review

The government’s response to a paper on judicial review, which was my last post here, is good as far as it goes. It holds back from necessary reform though: the first such reform is a restatement of the Wednesbury rules, and specifically the ‘reasonableness’ element.

The Wednesbury rules are set out in a page on this site (Judicial Review: a guide). In essence, a decision must take account of all relevant purposes, take account of no irrelevant purpose, and must not be unreasonable. All these are hostage to fortune: the last is a bear-trap, misused to side-step the rule of law.

The paper does not refer to Wednesbury directly but does give a firm background for it: any power granted by Parliament has explicit limits, but may also have implied limits. The Wednesbury rules are implied, unspoken limits. For example, Parliament may grant councils an explicit power to licence certain businesses, but it must not use the power to favour councillors’ family businesses and suppress competitors: that will not be set out in the Act but is implied. The paper contains a stern reminder that these limits are only implied, and not a universal truth, and Parliament could disapply them, and has done.

‘Reasonableness’ is a problem though. In Wednesbury and later cases it has been explained: unreasonableness is insanity: a decision made by someone who has lost his power of reason.

Decision-makers are rarely clinically mad though, so impliedly it is an evidential question: ‘Was the decision so devoid of reason that no sane man could have made it? If so, and assuming the decision-maker was not mad, it must have been made without regard to the genuine factors or for an improper purpose.

The word ‘reasonableness’ has other meanings though in everyday life, and these have been used by some judges to widen their remit. It can be used by a judge to usurp the decision-making process so that the judge substitutes his own reasoning a the mete-rod of ‘reasonableness’. That, negating powers and discretions given by law, subverts the rule of law.

The Government paper is sound on all these points as a restatement of the strict law. However, it is only a government paper – it is not an Act of Parliament nor a legal judgment: it has no force of law whatsoever. The Ministry of Justice may feel they have done will in preparing this paper, but no judge could take it into account. It needs an Act of Parliament to give direction.

A lurking instability are that the Wednesbury Rules themselves are found in no Act of Parliament. They were deduced by the Court of Appeal in 1948, in Associated Provincial Picture Houses, Ltd v Wednesbury Corporation. That in itself may tempt an judge with a sense of a good cause to determine that some other implications are yet to be found by a judge with his own perspicacity.

The idea of reasonableness in Wednesbury is strictly limited though, and Lord Greene knew it could be abused:

It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation   [1926]  Ch  66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.

…….

I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose.

To set this strict definition out in black-and-white law may be a challenge to the sesquipedalian legal draftsmen of our day, but it is quite simply when boiled down.

To retain the requirement of ‘reasonableness’ is consistent with what Parliament must have intended and so supports the rule of law. To extend it to allow a judge to strike a decision down by applying his own standards of reason and preference would discard the rule of law entirely, in favour of the rule of lawyers.

See also

Books

A start to fixing judicial review

A very encouraging government response in the review of judicial review suggests that the system will be made to work better. It is still the start of the process.

The Law Society fell over themselves to find something to object to, which they would have done irrespective of the outcome: in fact the government’s paper is everything the Law Society could have wanted.

Some of the problems found in the current judicial review process are set out in the paper, but only some. The main reforms proposed are encouraging, as a start, and on their own they would make the system work better for everyone, not to stop judicial review of administrative decisions but if anything to make it a remedy more available for genuine cases, while providing a mechanism for remedying decision-makers’ faults. It is not a wholesale reform, but it sets the tone.

The headline points are short. The first of them seems very niche: reversing the ruling in Cart. That (and I had not heard of it either) was a decision allowing parties to challenge the Upper Tribunal if it does give them leave to appeal. It was pointed out that the Upper Tribunal is a senior judicial body that was never meant to be amenable to judicial review in this way and those appeals are the biggest single type of judicial review; 779 a year on average, with a miniscule success rate. It discredits the system, ties up judges in pointless work and wastes resources to no benefit.

The second-biggest set of appeals is one highlighted here before, namely immigration challenges. While this is not covered in the paper, eliminating those challenges by giving the Home Secretary complete discretion to do her job would knock out about as many cases again.

The second reform is interesting in terms of legal philosophy; the classical conception of judicial intervention would not countenance it, but modern conditions are far from the original conception. The classical formulation is that a decision made beyond authority is a complete nullity from the beginning, and therefore the court’s only role is to declare it so. In modern practice, decisions are very rarely quashed for being wholly outside the decision-maker’s powers, but for procedural inadequacy, such as failure to consult in the way laid down in a regulation, if that is a condition of action. In such a case, the court might in future be empowered to suspend the decision so as to give the errant decision-maker a chance to put right the procedural flaws. The challenge then is to allow that latitude to genuine correctable oversights and not extend it to actual exceeding of authority.

(The example of the latter given in the paper is if Parliament were to create a tribunal empowered to hear only tax cases but the tribunal started handing out murder convictions. That sounds wild, but it is exactly the sort of thing that used to happen back in the day, right up to the Revolution of 1688, and caused the Court of King’s Bench to issue many a writ of certiorari against lesser courts.)

A third string to the government’s paper is another one which has been highlighted here: the High Court’s blatant disregard of ouster clauses. Here the Law Society become vocal: “We need to consider carefully government proposals to change rules that would put some ministerial decisions beyond the reach of the court – so-called ouster clauses – but the guiding principle must be that the government, is, and must remain answerable to the law – just like the rest of us” – but that is a dishonest reading of the paper. Ouster clauses are rare, and there is no suggestion that they would become more common. Where they are needed to give finality to decisions, Parliament orders it, and to disregard the plain words of an Act of Parliament is the very antithesis of the rule of law: it is Parliament which makes the law.

If ousters become commonplace, then there would be an objection, but that is not suggested. What the paper actually discusses, if not in so many words, is “How to we stop judges from using sophistry to ignore the plain words of an Act of Parliament whenever they want?”

The narrative to the report, aside from the actual recommendations, is of as much interest in setting the tone. The golden thread is the rule of law. That is also the ideal championed by those cynical of the government’s motives.

It is right that Labour and the LibDems and the Law Society should be sceptical. It is right that they should voice suspicion of the government’s move. A government is not to be trusted with the delimitation of its own powers. Parliament is the trustee of that restraint. Care must be taken of a government looking at the limits of its powers, but in this case the writers of the report have trodden carefully.

The rule of law is here accepted, and whatever right and proper suspicions are expressed by the Opposition or the Law Society, when it comes down to it, the Conservative benches in the Commons have more respect for the restraint of government power than may be found opposite, simply by ideology.

One word mysteriously missing from the whole paper is “Wednesbury”. The Wednesbury principle is the foundation stone of modern jurisprudence on judicial review. It is placed in fact in the paper, not by the name ‘Wednesbury’ but as a reminder that basis of the modern rules is not to empower judges but to reflect the intentions of Parliament:

“while the standard grounds of Judicial Review are default conditions that Parliament intends to apply to the exercise of any power, these are just defaults and Parliament is completely free to add to or remove from them in specific cases.”

The actual rules in question have been discussed before. The originals have shrunk in the imagination to one: reasonableness. That word is open to misinterpretation, often deliberately. The meaning of “reasonableness” will be the next article on this subject.

To go back to the paper, it refers to ‘the tendency in the contemporary debate to see terms such as “the Rule of Law” as coterminous with the application of a range of moral and normative values’ and observes, correctly, that:

“there is a significant difference between defining the Rule of Law as the idea that the powers granted by Parliament or through the prerogative should be enforced by the courts (or another body) according to Parliament’s intent, and the idea that the courts should apply as a matter of course another source of authority such as their own concept of fundamental rights”

That is the fundamental trespass that activist judges can make. Judicial review is there to restrain officials from exceeding their lawful jurisdiction. It is not based on idea that judges are all-wise and ministers and officials are foolish so a judge would make a decision better.

There must be limits to ministers’ and officials’ powers, or freedom can be extinguished, and the courts will enforce those limits. However, the law is not just about limits: it is about actual powers granted, and they are granted for the benefit of the public. For a judge to invalidate a power actually given, because he has other ideas, that is to disregard a command of the law, and thus is a contempt for the rule of law.

See also

Books

Nicola’s Muzzle – 2

Since I last wrote of Nicola Sturgeon’s Bill to ban speech, more immediate events have seized the attention, but on this bandwagon runs. In that time yet more voices have risen against it. Yet Nicola controls in a presidential manner all the levers of state, and weak MSPs ready to do her will. The threat is very real. I chose to leave writing this until I was out of Scotland and outside her reach.


The ‘Hate Crime and Public Order (Scotland) Bill’ is kept relatively short. It has been promoted as a measure against ‘hate speech’, but goes far beyond even the measures Tony Blair left us with.

I previously wrote about the opening, which has been little commented upon, forcing sheriffs to act outside common sense and conscience. The meat of commentary is on Part 2: ‘Offences relating to stirring up hatred’. Now, for a such a Bill to be promoted by a political party built entirely on stirring hatred up against their fellow countrymen, this is chutzpah indeed. The provisions are beyond humour.

It will be a crime to behave in a threatening, abusive or even merely insulting manner, or to communicate insulting material to another, if with the intent to stir up hatred against a defined racial or national group or even if with no intent if it is likely that ‘hatred’ will be ‘stirred up’. It does not say that SNP branch meetings are exempt, but I would not want to be the constable to tries to arrest the unbridled tongues that do just this at every one.

The clause would ban the Daily Mail and half a dozen other papers from distribution in Scotland, as soon as someone alleges that one of their leading articles has stirred prejudice against foreigners. Stirring hatred against journalists or political opponents is not covered.

Secondly, it will be a crime to behave in a threatening or abusive manner, or to communicate abusive material to stir up hatred, or be likely to, against a number of listed identity groups. It does not here say ‘insult’ here, but that will be added later, the moment an advocacy group in receipt of taxpayers’ money claims it is a hole in the legislation. In any case, ‘abusive’ may mean exactly the same.

The groups covered include the usual suspects, including ‘sexual orientation’ and ‘transgender identity’.

It would be a defence (at least in the initial draft – this may come out) for a person charged to show that their behaviour was ‘in the particular circumstances, reasonable’: that is undefined and I pity the advocate who tries to argue it, in professional terms and also because of the hate mobs who would besiege his chambers afterwards. ‘Reasonable’ by whose standards, or to achieve what? This may be interpreted, in the spirit of the Act, that no behaviour may be adjudged a reasonable infringement of the presumptions the Act contains, leaving no defence.

The major trap hidden in the formulaic words is in the key line ‘as a result, it is likely that hatred will be stirred up against such a group’. Consider it for a moment: it does not say how much hatred is t be engendered by the actions in question: it might be one mad, tinfoil-hatted nut on Facebook who reads words and feels hatred growing in his heart, and that has stirred hatred. Had the words said ‘in a significant portion of the population’ it would be bad but not as bad as this: had it said promoting violence against members of a group that would even seem acceptable, but stirring any hatred at all, that is unavoidable in social commentary.

It is worse than the apparent aim of the wording: it can catch anyone with views someone else does not want to hear. Hatred has to be directed at a group – but the Bill does not say that the speaker had to have that group as a target: he might be a Christian preacher with nothing but love in his heart but by saying something that an angry Woke mob does not want to hear, he has stirred the hatred of the mob against him and against Christians, and so he is guilty, and looking at 12 months in Barlinnie.

So much more could be said, and will be.

See also

Books

Law: an abused word

No man has ever been arrested for attempting to break the First Law of Thermodynamics, nor spent time in clink for breaking Murphy’s Law. The idea of lawbreaking and consequent condemnation has burst out with little understanding from commentators, or even from lawyers regrettably. The absolute virtue of the Rule of Law become the worst virtue-signalling when commentators speak of laws which are no laws at all.

Law is the basis of a settled, peaceful, free society in the English-speaking world. It is taken for granted because it has always been this way – it is still a novelty in Europe. Therefore the idea of the Government “breaking the law” brings with it the heartiest condemnation, but it comes from a deliberate misunderstanding.

Covenants, without the Sword, are but Words, and of no strength to secure a man at all. Therefore notwithstanding the Lawes of Nature, (which every one hath then kept, when he has the will to keep them, when he can do it safely,) if there be no Power erected, or not great enough for our security; every man will and may lawfully rely on his own strength and art, for caution against all other men.

Law is a word used in many senses, and Hobbes, who used the phrase “Lawes of Nature” frequently, explicitly denied that these ‘laws’ were any more than as we might use the same phrase today, or such phrases as “the laws of physics”. The essence of law in the sense of the laws of the realm are where he says:

Law in generall, is not Counsell, but Command; nor a Command of any man to any man; but only of him, whose Command is addressed to one formerly obliged to obey him. And as for Civill Law, it addeth only the name of the person Commanding, which is Persona Civitatis, the Person of the Common-wealth.

In short, law properly so-called is the command of the sovereign or sovereign body, which in the case of Britain is the Queen in Parliament.

The Legislator in all Common-wealths, is only the Soveraign…. For the Legislator, is he that maketh the Law … the Soveraign is the sole Legislator. For the same reason, none can abrogate a Law made, but the Soveraign; because a Law is not abrogated, but by another Law, that forbiddeth it to be put in execution

The concept of “international law” is a different concept. As was observed in an earlier article on this site, international law is not law. It cannot be, because it is not made and abrogated by the sovereign. It is a covenant without the sword, which is but words of no strength to secure a man at all.

The courts of the realm have a certain indulgence towards the concept of “international law” in the sense that it is a general set of understandings between states and one might assume that Parliament when legislating does not intend to contradict an important treaty, so Acts of Parliament are interpreted, as far as the language will bear it, in a way that is consistent with any earlier treaty. The courts have also however stamped down on attempts to import treaties as if they were equal to domestic law: if a treaty could rewrite the rights and obligations of the subject, this would allow the Crown to bypass Parliament.

There is also to issue about what this “lawbreaking” would be were it actual law and actually broken (which in this case, I am given to understand, would not be so). In domestic law there are two separate concepts, of criminal law and or civil law (which is not the same as Hobbes’s Civill Lawes, the latter referring to actual law as opposed to the “Lawes of Nature“). Civil law is about debt, trespass, enforcing contracts and trusts, negligence leading to injury and such civil wrongs as this. It is important for the order of society but it does not carry the shame of lawbreaking. It is not what the ordinary man thinks of: if an backstreet yob yells “Run: it’s the Law!”, he does not mean he has spotted the approach of a member of the Chancery Bar.

If departing from a treaty were a breach of “law”, it would be akin to breaching a contract, not coshing a night-watchman. The shock is therefore feigned, and foolish, and in some cases dishonest with the intent to deceive the public.

The Withdrawal Agreement, the proximate cause of the recent pearl-clutching, is part of the law of the realm and so must be followed – but it is only part of the law because an Act of Parliament has made it so, and another may unmake it: the rules of the Agreement may be abrogated, but by another Law, that forbiddeth it to be put in execution. The Treaty of Rome itself, when the United Kingdom was a member of the European Communities then of the European Union, had the force of law only because an Act of Parliament made it so. This is basic stuff. Sovereignty, as Hobbes repeatedly reminds us, is indivisible.

The law that is actual law must be upheld, but it is for Parliament to consider it and at any time may send a Bill to the Queen to change the law, for that is a sovereign act of law-making. Law to govern society should be precise and understood, which those international conventions never can be nor are intended to be, and the law should be open to frequent reform, as international conventions cannot be.

That Law can never be against Reason, our Lawyers are agreed; and that not the Letter,(that is, every construction of it,) but that which is according to the Intention of the Legislator, is the Law. And it is true: but the doubt is, of whose Reason it is, that shall be received for Law. It is not meant of any private Reason; for then there would be as much contradiction in the Lawes, as there is in the Schooles; nor yet (as Sr. Ed, Coke makes it (Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b),) an Artificiall Perfection of Reason, Gotten By Long Study, Observation, And Experience, (as his was.) For it is possible long study may encrease, and confirm erroneous Sentences: and where men build on false grounds, the more they build, the greater is the ruine; and of those that study, and observe with equall time, and diligence, the reasons and resolutions are, and must remain discordant: and therefore it is not that Juris Prudentia, or wisedome of subordinate Judges; but the Reason of this our Artificiall Man the Common-wealth, and his Command, that maketh Law: And the Common-wealth being in their Representative but one Person, there cannot easily arise any contradiction in the Lawes; and when there doth, the same Reason is able, by interpretation, or alteration, to take it away. In all Courts of Justice, the Soveraign (which is the Person of the Common-wealth,) is he that Judgeth: The subordinate Judge, ought to have regard to the reason, which moved his Soveraign to make such Law, that his Sentence may be according thereunto; which then is his Soveraigns Sentence; otherwise it is his own, and an unjust one.

See also

Books

The UK Internal Market consultation

Little heralded perhaps, but important, the Department for Business, Energy and Industrial Strategy has issued a White Paper entitled “UK Internal Market” and the need for it shows how far we have come, backwards mainly that this is an attempt to fix it.

It is a symptom of the regulatory state that we even have to consider the subjects in the White Paper, but as our commercial life is mired in bureaucracy and unlikely to crawl out any time soon, the effect of that bureaucracy to impede business is being looked at, in the context of a possible fragmentation of rule-making that could stop seamless operations of business across the United Kingdom, as has been enjoyed since 1707, and 1801.

Britain left the European Union, thank goodness, on 31 January this year, and the co-ordinating rules of its Single Market are dropping away. At the same time, those political parties which campaigned to keep powers in Brussels, now demand that those powers be handed to the devolved authorities, so they can make a right hash of it, but more to the point, the paper raises the point that a divergence of standards and licensing regimes would lead to companies’ having to produce different goods or labelling in different parts of the country, or limit their business to one corner of the land.

The worst aspect politically is that devolved authorities, being controlled by hostile opposition parties, will be driven to differ from the rules in England for political reasons and despite the interests of those affected by the rules – businesses and consumers. The paper only hints at that, but we can read between the lines.

It is a paper of 105 pages, largely because it constantly repeats itself, but that should not be harsh criticism, because after the many opening pages of fluff (which I would have written very differently), it comes to the main points for action: a non-discrimination principle and continual input by affected businesses. Both are excellent principles. Both should be used not only to squash future divergent burdens but also existing ones.

Four questions are raised, summarised as:

  1. Should the government seek to mitigate against both ‘direct’ and ‘indirect’ discrimination in areas which affect the provision of goods and services?
  2. What areas do you think should be covered by non-discrimination but not mutual recognition?
  3. What would be the most effective way of implementing the monitoring of the Internal Market and business and consumer engagement and should particular aspects be delivered through existing vehicles or through bespoke arrangements?
  4. How should the Government best ensure that these functions are carried out independently and are fully representative of the interests of businesses and consumers across the whole of the UK?

They are good questions. The fact that these questions even have to be asked is worrying, but they do.

The questions need input from those who understand their own businesses, and by all accounts the government will actually listen to them (which will be a Cummingsesque shock to the Civil Service, if they do not find a way to frustrate it). The White Paper indeed contains examples and quotes from businesses showing that a good consultation has already begun.

There is little time to respond, with observations and even ideas. This should be shaped by the reality of business – I was going to write “and not ideology”, but that is impossible.

These subjects may have to be the subject of more articles on this site, adding to those previously published.

Link to the White Paper

See also

Books