Consultation duty gets to the Supreme Court

NL33293-039Moseley R (ota) v. London Borough of Haringey [2014] UK 56  – read judgment

Lord Wilson posed the question, answered today by the Supreme Court, with concision. When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation?

The judgments reveal the surprising fact that the core principles of consultation (named after Gunning, as public lawyers will know) have never been approved by the Supreme Court or its predecessor, the House of Lords. The Court was happy to endorse them as embodiments of fairness. But it went on to consider the duty to consult on rejected alternatives – as very recently debated by the Court of Appeal in the Rusal case – see my post here.

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Barclay bros duck out – leaving Supreme Court to sort out the constitutional problem

sark aerialR (ota) Sir David Barclay and Sir Frederick Barclay v Secretary of State for Justice and Lord Chancellor, The Committee for the Affairs of Jersey and Guernsey and Her Majesty’s Privy Council [2014] UKSC 54 - read judgment

 The Supreme Court has just ruled on a case which appeared before the Administrative Court on the judicial workings of Sark, and the power of the ruling body to alter the pay of the local judge (known as”Seneschal”). The Administrative Court had thought this was potentially open to arbitrary use and therefore incompatible with Article 6 of the Human Rights Convention – read judgment and Rosalind English’s post here.

But things took a different turn in the Supreme Court. For reasons unexplained, the Barclay brothers (who own these island just off Sark) dropped out of the case, and none of the remaining parties sought to uphold the judgment of the Administrative Court. The Article 6(1) point was not adjudicated upon, and the case became a constitutional one. The Channel Islands are not part of the UK, and have their own legislatures, though they act internationally by the UK Government.

In those circumstances – how should a UK Court go about reviewing the London approach to reviewing a measure put forward by an independent legislature?
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Consultation process not unfair after all, says Court of Appeal


Aluminum-Warehouse21United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  [2014] EWCA 1271 (Civ) - read 
judgment

Deciding whether a given consultation process conducted prior to some administrative decision was or was not sufficiently unfair to warrant  challenge is not an easy task. Three connected problems commonly arise:

(1) did the public body provide adequate information to enable properly informed consultation 

(2) was the consultation at a formative stage of the decision-making process, so it was a real rather than sham process?

(3) did the consultation encompass sufficient alternatives?

In this case, the judge said (see my post here) that consultees were missing important information under (1), and, on the particular facts of the case ,it should have consulted on an option which it had rejected, and so found a breach of (3).

The Court of Appeal disagreed. Both findings were wrong. The consultation process was not unfair.

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Strasbourg and why you must give reasons on domestic appeals

MO201110701289983ARHansen v. Norway, ECtHR, 2 October, read judgment

In any system of appeals, there is always a tension between giving everyone a fair hearing and concentrating on the appeals which do stand a reasonable prospect of success. The UK, like many countries, has introduced some filters on civil appeals in relatively recent times, enabling unmeritorious appeals to be dismissed at the threshold. In doing so, it gives short (sometimes very short) reasons for refusing permission.

You might have thought that this was a classic area where Strasbourg would be wary about intervening in domestic practice and striking the balance between speed and fairness. Yet the Court was persuaded that the Norwegians got the balance wrong, and found a breach of Article 6(1). We therefore need to read it carefully to see whether the same could be said about our system.

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Another Strasbourg judgment which Putin may wish to ignore – Scientologists win

scientologyChurch of Scientology v. Russia, ECtHR, 2 October 2014 - read judgment

Amidst all the current posturing about the Strasbourg Court and how we would like to ignore its judgments we don’t like in future, one cannot help thinking about the old rule of behaviour that your enemy’s enemy is your friend. Western interests have been caught out, time and time again, when they intervene/interfere (insert, as appropriate) in the Middle East, and their enemy’s friend often turns out to be far from its friend.

Cue this case. Scientologists may not be widely favoured, in the UK, but then neither is Russia. And Russia would so love to ignore the slew of Strasbourg judgments against it – think Kordokovsky (€1.6bn, here), Chechnya and the environmental claims (here) against the various businesses which had so seamlessly ended up in the oligarchs’ pockets. But do we really want to feed Putin a line to get out of his difficulties in Strasbourg? This week’s back of an envelope announcements from the Conservative party conference about Strasbourg decisions would appear to do so.

The trigger for this claim in Strasbourg by the Church was the Russian courts’ decision that they were unwilling to allow the Scientologists to register their operations as a legal entity. And, as we shall see, Strasbourg thought that was not on.

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Badgers’ expectations dashed

BadgerR (o.t.a. Badger Trust) v. SoS for Environment and Rural Affairs, Kenneth Parker J, Admin Ct, 29 August 2014 read judgement

This blog has covered the various twists and turns, both scientific and legal, of Defra’s attempts to reduce bovine TB by culling badgers: see the list of posts below. Today’s decision in the Administrative Court is the most recent.

You may remember a pilot cull in Somerset and Gloucester took place in 2013-14. Its target was to remove at least 70% of the badger population. By that standard, it failed massively. In March 2014, an Independent Expert Panel (IEP) concluded that in terms of effectiveness, shooting badgers removed less than 24.8% in Somerset and less than 37.1% in Gloucestershire. As for humaneness, something between 7.4% and 22.8% of badgers shot were still alive after 5 min – so the clean instant death much vaunted prior to the cull was by no means universal.

The current case concerned the future of the IEP in proposed “pilot” culls. The Badger Trust challenged Defra’s decision to extend culling elsewhere without keeping the IEP in place, and without further conclusions from the IEP to be taken into account on effectiveness and humaneness.

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Legal privilege, Articles 6 and 8, and iniquity

464795356JSC BTA Bank v. Ablyazov et al 8 August 2014, Popplewell J,  read judgment  

What you say to your lawyers is truly confidential; no-one, not even a regulator or prosecutor can see it. This is protected by the right to privacy under Article 8, and the right to a fair trial under Article 6 (which includes the right to access to lawyers).

Well, that is the general rule. And this case reminds us that there is an exception to this – when the relationship between client and lawyer is affected by “iniquity”.

As we will see, Mr Ablyazov fell foul of this exception, and papers which he sent to his various solicitors have been ordered to be produced. As we will also see, he appears to be a very bad boy indeed. It is however more difficult to draw the line between his sort of case and that in which a defendant says he has a defence, though in the end is disbelieved by the court.

And one interesting aspect of this judgement is Popplewell J’s clear explanation of this difference – a fine line indeed.

So now to Mr Ablyazov, and his badness.

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