judicial review

The Standard of Reasonableness in Canadian and UK Judicial Review (1) – Adrienne Copithorne

4 February 2020 by Guest Contributor

Stratas JA has said, “Administrative law matters”. Every individual’s life is affected, in some cases profoundly, by administrative decisions. Judicial oversight of administrative decisions engages questions of importance and sensitivity in democracies where separation of powers is an intrinsic principle. In the view of the Supreme Court of Canada, the act of judicial review by a court is a constitutional function that ensures executive power is exercised according to the rule of law. At the same time, review must be exercised without undermining the democratic legitimacy of the executive or the intention of the legislature. The standards applied by courts to determining the lawfulness of administrative decisions are therefore of central importance to the proper functioning of our country.

Disclaimer here, to apply to this and the next post. The views expressed here are purely in a personal capacity, as I am now counsel with the UK charity, Justice.

This and the following post will consider what a ‘reasonableness’ standard of review means in the contexts of Canadian and UK administrative law. The standard has recently been given new emphasis by the handing down of the judgment of the Supreme Court of Canada in Vavilov [2019] SCC 65 in which the court restated its conception of reasonableness and how a decision should be analysed in light of that standard.

In the UK, a series of cases has revealed that jurisdiction’s Supreme Court grappling with reasonableness primarily in its relationship with the other standard of review, proportionality. As this essay will show, both Canadian and UK courts have struggled ever since the advent of judicial oversight of administrative decisions to formulate a standard of reasonableness which ensures unlawful decisions do not stand but does not allow the court to remake the decision that is the proper remit of the administrator.

Pet Shock Collar Ban (Part 2)

2 November 2019 by Rosalind English

Back in 2010 Catriona Murdoch wrote about the High Court’s decision that a Welsh ban on the use of collars designed to administer electric shocks to cats and dogs did not breach Article 1 of the First Protocol of the ECHR or impinge upon the free movement of goods protected under European Union Law. I followed with a comment on the status of animal welfare in EU law here.

Any pet owner living near a busy road or with less than adequate fencing will be aware of the availability of an electronic containment system which prevents animals escaping by administering a shock via a collar, a system to which they become conditioned by the warning of a radio signal as they approach the boundary. Hand-held e-collar devices are different in that the shock can be administered anywhere and at any time at the whim of the animal’s owner.

Gamekeeper’s environmental Aarhus claim to shoot buzzards?

14 November 2015 by David Hart KC

McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

An interesting point arose in this judicial review (for which see Rosalind English’s post here). Could the claimant could get the benefit of an order that any costs he might have had to pay were capped at £5,000? The original judge, Thirlwall J, when granting permission, had refused this costs protection. Ouseley J granted it, though, because the claimant won, the order is academic (short of a successful appeal by the defendant). 

This kind of costs protection only applies when the claim is an environmental claim covered by the Aarhus Convention: see a whole list of posts at the end of this one, including the true bluffer’s guide here. The UK has been dragged kicking and screaming into compliance with the Aarhus costs requirements, that environmental challenges not be “prohibitively expensive”, thanks to a combination of the Convention’s own enforcement body and the EU Court in Luxembourg.

But the domestic courts have had some difficulty in deciding what is or is not comes within an environmental challenge.

As we will see, the judge also thought that an Aarhus claim requires a more intensive review of the substantive decision than might have been applied had the claim been a typical domestic challenge on grounds of irrationality. I deal with that point first.

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Buzzards should not be protected any more than herring gulls and cormorants: High Court

14 November 2015 by Rosalind English

McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

Public opinion regarding raptors and pheasant shoots should not influence the authorisation of buzzard control, the Administrative Court has ruled. Any derogations to the EU protection of wild birds should apply equally across wild avian species, irrespective of their popularity.

This was a gamekeeper’s challenge to the refusal by the defendant statutory body (Natural England) to grant him a licence under the Wildlife and Countryside Act 1981 to kill buzzards which he said were destroying such high numbers of game birds as to render his shoot unviable.

At the heart of the claimant’s challenge was his contention that NE treated raptors differently from other wild birds, making it far harder, well-nigh if not quite impossible, for anyone to meet the statutory conditions for the issue of a licence.
He maintained the defendant treated these licence applications differently because of the public controversy which the grant of a licence for the killing of buzzards would engender. This was because of perceived adverse public opinion about the protection of a pheasant shoot. Hence, the decision was based on unjustified inconsistencies in NE’s treatment of raptor and other birds equally protected under the law. 
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Limits of judicial review in international relations underlined

2 October 2015 by Gideon Barth

Ministry of Defence (Photo credit: Guardian)

R (Nour) v Secretary of State for Defence [2015] EWHC 2695 (Admin)

How far are the courts willing to go to intervene in matters of foreign affairs in order to protect human rights? Spoiler: they’re not.
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Challenge to prosecution policy on assisted suicide in Scotland fails – Fraser Simpson

10 September 2015 by Fraser Simpson

Ross, Re Judicial Review, [2015] CSOH 123 – read judgment

The Outer of House of the Court of Session has refused an individual’s request for clarification of the prosecution policy relating to assisted suicide in Scotland.

by Fraser Simpson

Factual Background

The Petitioner, Mr Ross, suffers from Parkinson’s disease and currently resides in a care home due to his dependence on others. Although not wishing to currently end his life, Mr Ross anticipates that in the future he will wish to do so and will require assistance.

In July 2014, the Petitioner requested from the Lord Advocate – the head of the prosecution service in Scotland – guidance on the prosecution of individuals who assist others to commit suicide. The Lord Advocate replied that such cases would be referred to the Procurator Fiscal – the Scottish public prosecutor – and dealt with under the law of homicide. The Lord Advocate further stated that decisions regarding whether prosecution would be in the public interest would be taken in line with the published Crown Office and Procurator Fiscal Service Prosecution Code (“COPFS Code”). However, he admitted that it would often be in the public interest to prosecute such serious crimes as homicide.
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When can the courts rule on the legality of future behaviour?

4 August 2015 by Rosalind English

Kent & others v Arun District Council and others [2015] EWHC 2295 – read judgment

Iain O’Donnell of 1COR acted for the Council in this case: he played no part in the writing of this post.

This case concerned the application of the law in relation to future conduct, in particular, the role of the judicial review procedure in determining what precisely is meant by the prohibition on the selling of live animals under the Pet Animals Act 1951.

This is a detailed statutory provision inspired by welfare and conservation concerns. It has a complicated legislative history, and essentially the judge hearing the application was being asked to decide whether certain future activities might be caught by it.

For the record, the statute was introduced to protect the welfare of animals sold as pets. It requires any person keeping a pet shop to be licensed by the local council, which will only license such a business if they are satisfied as to the suitability of the accommodation, nutrition and safety of the animals concerned. Section 2 bans the selling of animals in the street, including on barrows and markets.

Councils are responsible for enforcing the law in this area.
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Spiritual Injury voids Mayor’s Election

3 May 2015 by Martin Downs

Erlam et al v. Rahman et al, Richard Mawrey QC, April 2015, judgment here

The Guardian has reported that Lutfur Rahman, the former directly elected mayor of Tower Hamlets is “exploring the possibility” of judicially reviewing the judgment of the Election Commissioner, Richard Mawrey QC declaring his 2014 election void and barring him from standing in the mandated repeat of the poll.

The only surprise is the qualified nature of the statement as his website had already announced his decision to appeal two days before. This site also directs readers to a petition which describes the case as, “a politically-charged stitch up and an anti-democratic coup.” The Guardian quotes the Head of the Tower Hamlets branch of UNITE as describing the judgment as “an undemocratic assault on the people of Tower Hamlets” which was both “racist” and “Islamophobic”.

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The worrying new anti-terrorism measures that are set to become law – Angela Patrick

2 February 2015 by Guest Contributor

Credit: guardian.co.uk

The Counter-Terrorism and Security Bill begins its final stages in the House of Lords today. This blog considered the Bill on its introduction to the Lords. In the interim, both the Joint Committee on Human Rights and the Constitution Committee of the House of Lords have reported, both recommending significant amendments.

Despite repeat flurries of excitement as a coalition of Peers suggest time and again that most of the controversial Communications Data Bill – popularly known as the Snoopers’ Charter – might be a late-stage drop in; the press has, perhaps regrettably, shown little interest in the Bill.

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Magna Carta and its progeny

23 November 2014 by David Hart KC

Magna Carta Uncovered, Hart Publishing, October 2014 – details here

Two old friends, Lord Judge (former Lord Chief Justice) and Anthony Arlidge QC have written a compelling and scholarly account of the 1215 political settlement known as the Magna Carta. This instrument has become something of a missile in the dust-up over  the European Convention versus “rights brought home”.

The authors have taken on the task of tracing the way in which the Magna Carta has played a part in political challenges since its inception, critically in 17th century clashes between King and Parliament (think the Five Knights and Ship Money cases and the 1689 Bill of Rights). And the Charter then formed the background for the US Bill of Rights and many constitutional settlements since. 

Magna Carta (strictly the first Magna Carta, as others followed in 1216, 1217 and 1225, to similar effect) was “granted” by King John in June 1215. Initial negotiations about the monarch’s relationship with the Church concluded on 23 November 1214 (800 years today) within the Temple in London – our authors are past and current Treasurers of the Middle Temple. The “grant” was not really that. John had been forced to make peace with his rebel barons, and the liberties forced out of the king were unwillingly conferred.

We know or think we know what Magna Carta says. But this book strips off some of the varnish which later thinkers have imposed upon it.

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Wind turbines, noise and public information

7 November 2014 by David Hart KC

R (o.t.a Joicey) v. Northumberland County Council , 7 November 2014, Cranston J  read judgment

An interesting decision about a Council not supplying some key information about a wind turbine project to the public until very late in the day. Can an objector apply to set the grant of permission aside? Answer: yes, unless the Council can show that it would have inevitably have come to the same conclusion, even if the information had been made public earlier.

Mr Barber, a farmer, wanted to put up one turbine (47m to tip) on his land. The claimant was an objector, another farmer who lives 4km away, and who campaigns about subsidies for renewables – it is him in the pic. The planning application was complicated by the fact that an application for 6 turbines at Barmoor nearby had already been approved (where Mr Joicey is standing), and the rules on noise from wind turbines looks at the total noise affecting local people, not just from Mr Barber’s turbine.

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No binding assurances about badgers, says Court of Appeal

4 November 2014 by David Hart KC

R (o.t.a. Badger Trust) v. SoS for Environment and Rural Affairs, CA, 29 October 2014, read judgment, on appeal from Kenneth Parker J, Admin Ct, 29 August 2014 read judgment

The Court of Appeal has dismissed an attempt by the Badger Trust to quash Defra’s unwillingness to retain an Independent Expert Panel on future badger culls. The arguments mirrored those before the judge (summarised in my previous post here), and were dismissed for pretty much the same reasons.

The background was the pilot cull in Somerset and Gloucester in 2013-14. It sought to remove at least 70% of the badger population in the area. The Panel reviewed its results, and concluded that in terms of effectiveness, shooting badgers removed less than 24.8% in Somerset and less than 37.1% in Gloucestershire. It decided that in terms of humaneness, something between 7.4% and 22.8% of badgers shot were still alive after 5 min. Not quite what had been promised for shooting.

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Three strikes and out? Major defeats for Government Judicial Review reform plans in the Lords

28 October 2014 by Guest Contributor

Lords Pannick and Faulks

Last night saw the important Report Stage consideration of Part 4 of the Criminal Justice and Courts Bill in the House of Lords. Angela Patrick, Director of Human Rights Policy at JUSTICE provides a summary.

Widely – and quickly – reported as a “crushing” or an “emphatic” defeat – in a rare turn – the Government was last night defeated in three consecutive votes on its proposals to restrict access to judicial review. With a ‘hat-trick’ of blows, on three crucial issues, votes on amendments tabled by Lords Pannick, Woolf, Carlile and Beecham were decisive. On the proposal to amend the materiality test – the Government lost by 66. On the compulsory disclosure of financial information for all judicial review applicants, and again on the costs rules applicable to interveners, the Government lost by margins on both counts by 33. A fourth amendment to the Government proposals on Protective Costs Orders – which would maintain the ability of the Court to make costs capping orders before permission is granted – was called after the dinner break, and lost.

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Badgers’ expectations dashed

29 August 2014 by David Hart KC

R (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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You cannot be serious! Peers call ‘out’ on Government’s judicial review reforms – Angela Patrick

1 July 2014 by Guest Contributor

Last night saw the House of Lords’ first reaction to the Government’s proposed changes to judicial review as the Criminal Justice and Courts Bill had its second reading.   Already dissected at some length in this blog, the proposals have been roundly criticised by both the senior judiciary and the Joint Committee on Human Rights.   Consultations responses, including from JUSTICE, expressed concern that the measures appear, by design or coincidence, to undermine the rule of law, inhibit transparency and shield the Government from judicial scrutiny. Two key concerns arise from the Government proposals: restricting access for individuals without substantial means and limiting the courts’ discretion to do justice in the public interest. Yesterday’s debate was robust and eloquent, with former Law Lords joined by bishops and backbenchers alike to condemn the new measures.  

Metaphors were rife. Descriptions of the Government’s proposals ranged from Lord Woolf’s invocation of the image of Governmental wolves among some unlikely judicial sheep, to the titular and topical tennis imagery used with devastating effect by Lord Brown of Eaton –under-Heywood:

“More and more areas of our lives are controlled by public authorities. At the same time we have become understandably, I suggest, less trusting and certainly less deferential towards those with authority over us. I sometimes wonder whether it did not all start with John McEnroe’s outraged questioning of line calls at Wimbledon way back in the 1970s. However, we should consider how in the long run his behaviour has contributed to the hugely improved policing of those lines that is in operation today…By the same token, the use of judicial review has to my mind undoubtedly raised the standards of public decision-making in recent years.” (Col 1591)
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