Admin court grabs bull by the horns

20 April 2011 by Rosalind English

R (on the application of K and AC Jackson and Son) v DEFRA – read judgment.

An interesting ruling in the Administrative Court this week touches on some issues fundamental to public law – the extent to which “macro” policy (such as EC law) should trump principles of good administration; the role of factual evidence in judicial review proceedings, and the connection between public law wrongs and liability in tort.

It all started with Boxster the pedigree bull and notices issued by DEFRA which sealed his fate, or at least appeared to do so when his owners received them in April and July 2010. They were directed to arrange  the slaughter of the animal as a result of a positive bovine tuberculosis (bTB) test that had been carried out by DEFRA technicians earlier in the year. The notices of intended slaughter were issued under paragraph 4 of the Tuberculosis (England) Order 2007, an Order made under powers contained in the Animal Health Act 1981.

Any proceedings involving the words “animal health” are invariably bad news for the animal concerned, and in this case they were also disastrous for the owners, who clearly thought it worth resisting the order by applying for judicial review of the notices. They claimed that DEFRA had

1.  relied on a bovine tuberculosis (“bTB”) test produced on the basis of a sample taken in a manner not compliant with its own operating procedure;
2.  failed to follow its own policy of re-testing when the initial test had not been carried out properly; and
3. interfered with the claimants’ right to peaceful enjoyment of their possessions under Article 1 of the First Protocol of the European Convention on Human Rights, in that it determined upon the slaughter of Boxster “without proper, and self-imposed, procedural safeguards to check that the interference with that right was justified”.

As it turned out the judge did not find it necessary to consider the A1P1 claim since he rested his conclusions on traditional judicial review grounds. Less traditional was the order obtained by the claimants to call evidence on issues of fact.

Judicial review proceedings and witnesses of fact

The established rule is that it is not the Administrative Court’s role to enter into questions of primary fact. Judicial review is generally conducted on written evidence. In a 1995 case the Divisional Court said it was “usually undesirable that a person holding a quasi-judicial office should be exposed to cross-examination”. A lot of water has passed under the bridge since then, and with it the Human Rights Act, but it remains the case that the judicial review court is “not well-equipped” to carry out a sufficient review of the factual merits of the case because it is not used to hearing oral evidence and cross-examination (R(MH) v Secretary of State for Health [2005] UKHL 60).

But it seems from this case that, where there is a procedural challenge, and there is a stark dispute of fact as to the procedure actually adopted, there was, in the judge’s words

no alternative but for the court to resolve the issue of fact in order to adjudicate upon the challenge.

– and this even without the benefit of a proportionality review of the defendant’s actions under A1P1.

The dispute in question was over whether the sampling had been done in such a way as to risk contamination. The claimants argued that  this factual issue went to underlying procedural irregularity. The mixing of Boxster’s blood samples, they said,  contravened DEFRA’s established practice as to how the sampling process should be carried out, giving rise to “evidence that [a..] diagnostic test has not been carried out properly” and requiring DEFRA to engage its “standard policy” to re-test.  The fact of the contamination was therefore  at the heart of the dispute.

McCombe J decided to allow the cross-examination to proceed so that he could resolve the issue of fact and he did – in the claimants’ favour. He reached the conclusion that Boxster’s samples had been improperly mixed without the assistance of expert evidence, even though the defendants argued that the laboratory testing of Boxster’s sample revealed no contamination. This dispute –  whether contamination would in fact have been detected by the controls – was not amenable to resolution on the evidence available, particularly in the absence of cross-examination of the scientists.

Legitimate expectation and “macro” policy

So, the question of improper sampling, and DEFRA’s self-avowed policy of  not assuming bTB infection if there is reason to doubt that the test has been properly carried out, constituted a species of legitimate expectation that the claimants could rely on in these proceedings.

The old distinction between “substantive” and “legitimate” expectations, the source of much spirited academic and judicial discussion in the eighties and nineties, has now largely fallen away.  Laws LJ’s distillation of the current position is worth citing in full:

Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial and no punishment without law. (Nadarajah v Secretary of State[2005] EWCA Civ 1363)

Whether a promise should be honoured depends upon the respective force of the competing interests in the case. Instances where the denial of the expectation is likely to be harder to justify are

1. where the representation relied upon amounts to an unambiguous promise;
2. where there is detrimental reliance;
3. where a promise is made to an individual or specific group;

On the other hand where the government decision maker is concerned to raise wide ranging or “macro-political” issues of policy, the expectation’s enforcement in the courts will encounter, in Laws LJ’s words,  a “steeper climb.”

The defendants contended that mere failure to follow policy was “not enough to show unlawfulness, causation is required”. In  this case, they said, it was “plain”  that if the policy had applied the outcome would have been the same (meaning, presumably, that the animal on retesting would have shown positive results for bTB).

But this is a circular argument, since the core of the claimants’ case was that the test had been corrupt in some way and that DEFRA should have admitted as much, then, having admitted it, they would have been bound by their policy either to retest (which they didn’t), or assume the animal was TB free. It all of course turns on causation, in other words whether it makes any difference that the decision maker could and would have reached the same decision without breaching the public law duty in question. So for example it might be argued that, if Boxster had been slaughtered, pursuant to the wide statutory power contained in section 32 of the  1981 Act, that slaughter might not have been unlawful in such a manner as to render DEFRA liable in damages for wrongful interference with goods.

This brings us to the contentious issue of private and public law illegality and the extent to which the one is consequent on the other. A series of recent cases on the detention of aliens examines the relationship between (public law) procedural impropriety and the (private law) tort of wrongful imprisonment. In R (SK Zimbabwe) v Secretary of State for the Home Department [2009] 1 WLR 1527  the Court of Appeal appears to suggest that not every type of public law breach, committed after an initially valid detention, would render continued detention unlawful. On the other hand in Lumba the Supreme Court  (in the teeth of very strong opposition from Lord Brown) concluded that, if it failed to apply its published policy,  a public authority could still be liable in tort even if its actions were not unlawful in public law terms (see our analysis of this ruling).

In any event the parallels between the detention rulings and this case cannot be taken too far because the claimants could say, and did, that they were entitled to judicial review and an appropriate discretionary remedy for any public law wrong that may be established. Despite what the detention cases appeared to say about causation, McCombe J did not think they made any difference to the fundamental importance of legitimate expectation in judicial review:

what Laws LJ had to say in Nadarajah (although obiter) identifies, for the present, the principles underlying our law of “legitimate expectation”, or perhaps I should say, “good administration” which has to be applied here.

The “precautionary principle” and other overwheening policies 

A related, but independently noteworthy issue in this case is the question of “macro” policy and its relative importance to the legitimate expectation concerned. DEFRA called in aid the requirement imposed in Article 15 of the relevant EU Directive 78/52/EEC that requires member states to ensure that,

…following a bacteriological, pathological or tuberculin examination, animals in which the presence of tuberculosis has been officially established and those considered by the competent authorities to be infected are slaughtered

Not entirely surprisingly, this found no favour with the judge since it begged  the question of when “the presence of tuberculosis has been officially established”.  No matter how imperative the EU direction, it amounts to nothing if there is reason to doubt that the test is “valid”,  since flawed test procedures cannot determine whether the disease is “officially established.”

This is a welcome step by the Administrative Court, all too often cowed into conceding important points of principle in the face of ill-defined EU objectives (an early, dismal example of this was the veal crate litigation ).  The 1981 Animal Health Act is a powerful piece of legislation with the full weight of European agri-policy behind it but McCombe J refused to be bamboozled. He conscientiously applied Laws LJ’s test for proportionality to DEFRA’s reasons for overriding the claimants’ legitimate expectation, and found them wanting.  Issues of  “macro policy” relating to the control of the disease do not, in Laws LJ’s words, “render too steep the climb to the enforcement of Jacksons’ legitimate expectation in this case'”

All too often, precautionary policies such as the one at issue here are allowed to prevail when the condition precedent for their application does not exist. As the judge was at pains to emphasise, the policy is to slaughter animals testing positive on either a skin test or a blood test.

It does not address the question of what is to happen if the procedures for carrying out the test have not been followed and/or the testing processes are flawed.

The “precautionary policy” to slaughter infected animals assumes the integrity of the process by which it has been determined that the animal is indeed infected. The Court of Appeal recently squared up to a similar argument in the challenge brought by the Badger Trust; it quashed the order to cull across Wales because it did not accept that such widespread action was necessary to reduce the incidence of bTB in the region. The burden is on the enforcers of that policy to establish the integrity of the process.  That is what good administration is about.

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