Richard III on the move again – pitched into the current judicial review debate
23 October 2013
I posted here on the original judgment giving the Plantagenet Alliance permission to seek judicial review of the Secretary of State’s decision to re-bury Richard III in Leicester. At the time, the judge had made a full Protective Costs Order in favour of the Alliance, so that it would not have to pay costs if it lost. The judge had also ordered what he envisaged to be a short hearing to determine in what sum the Alliance’s costs should be capped. if it won.
The judge was then somewhat surprised to be faced by a full-blown attempt by MoJ (Chris Grayling) to discharge the PCO, and seek an order for security of costs against the Alliance. The written argument in support was signed by the top barrister doing work for the Government, and the hearing about it took a day (think of the costs of that).
The application was conspicuously unsuccessful, as we shall see, but what was all this about? Something to do with proposed judicial review changes, I suspect – for reasons which will become evident.
On 6 September, so between the grant of the PCO in August and this hearing on 26 September, MoJ had published its consultation paper on further reforms to judicial review – closing date for consultation 1 November 2013.
The consultation paper does not mince its words about things it does not like. It hates weak applications – so do we all, and reforms have been instituted on this. It does not like cases where these cases are legally aided or where the public authority bears the claimant’s costs (not usually unless the claimant wins, when it is not a weak case). Even worse is where the judicial reviews are “brought by groups who seek nothing but cheap headlines”.
The last point leads to MoJ’s proposals on standing. Currently, there are relaxed rules as to standing. Courts think it better to resolve the merits of the claim that government has acted unlawfully rather than to fight about who can bring that argument – the latter a sort of courtroom equivalent of going for the man rather than the ball.
Grayling would evidently like to change this. He cites two cases in particular where he evidently thinks it is wrong that a particular person could bring a claim:
(i) Maya Evans – when you look at Maya Evans, here is what the judges say at :
The claimant is a peace activist who is opposed to the presence of UK and US armed forces in Afghanistan. The fact that she may have a wider objective in bringing her claim is, however, an irrelevance. The claim itself is brought in the public interest, with the benefit of public funding. It raises issues of real substance concerning the risk to transferees and, although the claimant’s standing to bring it was at one time in issue, the point has not been pursued by the Secretary of State.
Those “issues of real substance” led to a full and thoughtful review by the Courts of the UK policy and practice in relation to the transfer to the Afghan authorities of suspected insurgents detained by UK armed forces in the course of operations in Afghanistan, and concerns expressed by the court about some aspects of this. (Ms Evans has been in the news last week – with a further successful application arising out of this case: see post here).
(ii) the World Development Movement case. WDM was a “campaign organisation” who challenged a grant of overseas funding to the Government of Malaysia for the Pergau dam. But the consultation paper does not tell us what happened in that case. The Court found that the grant was unlawful, because Government did not have power to make it under the relevant statute, as the project was uneconomic. Its own Permanent Secretary had told it so in terms (for a fascinating account by the official involved, Sir Tim Lankester, of this extraordinary saga, see his book here) but for political reasons (Mrs Thatcher had promised it) the project had gone ahead. So a classic case where the executive was reminded by the court of the rule of law.
So a curiosity arises, if MoJ really believes, as it says, that j.r is “a crucial check to ensure lawful public administration” – Foreword, p.1. MoJ wants to stop potentially successful claims which go to the legality of important questions, whether here or abroad. And it wants to do so by asking the judges to take their eyes off the ball (of merits) as it flies across the net, and invite controversial and expensive arguments about whether people are allowed on the tennis court in the first place.
The consultation paper is well worth a read. But as you do, you should constantly think about whether the Government’s “beef” is about weak claims, or about reducing the number of judicial reviews (weak or strong). The first is fine, but the second a dangerously slippery slope, with Government deciding the rules on when citizens can sue the Government. So beware the peroration in Grayling’s Foreword:
The proposals we are putting forward are, I believe, squarely in the national interest.
I can do no better than to quote  of the consultation
….the Government is concerned with the use of judicial review as a campaign tool with challenges brought by groups which do not have a direct or tangible interest in the claim. There is a degree of overlap between the issues of standing and the PCO regime. In particular, and to the extent that the standing rules permit “public interest” claims to be brought where there is no claimant with a direct or immediate interest, the Government questions whether it is right – as a PCO will provide – for the public body defendant to be required to fund its own costs of defending that case, if the claim fails.
Richard III: round 2
So back to this case involving a “campaigning organisation” granted a Protective Costs Order – not MoJ’s flavour of the month. The spirit of these consultation proposals found their way into MoJ’s submissions at this hearing, trying to set aside the PCO.
The general rules on PCOs I have visited lately in my post on Mrs Litvinenko, and you can find a full discussion of the principles at - of Haddon-Cave J’s judgment. So I shall stick to some specific points.
MoJ’s submissions faced the difficulty that the judge had already decided that the reburial issue was of general public importance, and he was unpersuaded that he had got this wrong.
MoJ also argued that there was no public interest in the outcome of the judicial, just a “parochial” interest by York sympathisers driving the claim. That could be “entirely served” by it being discussed in the newspapers.
No, said the judge:
….this argument is flawed and heretical. It ignores the fundamental need for the Court to ensure that the due processes of the Common Law are adhered to. It suggests that amorphous ‘public debate’ in the Press or on the Web is somehow a substitute for the adherence by public bodies to the duty at Common Law properly to consult interested parties. It also ignores the fact that the licensee (the University of Leicester) is not a disinterested party and has a personal interest in retaining possession and control of the remains whatever views might be expressed in such a public debate.
Ah, yes, this thing called the rule of law again.
One issue which arose is whether it was “fair and just” to grant a PCO. MoJ said that the case
was simply being used as a ‘campaigning or publicity tool’ to try and persuade decision-makers to re-inter the body of Richard III in York;
and it was not ‘fair or just’ that the Government should take the entire risk of defending the proceedings to grant a PCO in circumstances where the applicant had not ‘put its hand in its pocket’ and the matter was being run on the basis of CFAs.
Both got a dusty answer.
The Alliance wanted to quash the adverse decision because it was, they said, unlawful. If they are right about that, they are entitled to. If not, then not,
The grant of a PCO would depend on means. Neither the Alliance nor, its leading light ,Mr Nicolay had assets (Mr N was a self-employed gardner) and they had found it difficult even to raise the court fees of £275. And this discussion also saw the back of the application by MoJ for security for costs against the Alliance. The judge was unpersuaded by the rhetoric, to the effect that the incorporation of the company was a “device”, and the Alliance was a “busy-body”: more bluntly, he thought that such an order would simply stifle the claim – which was presumably its object.
The balance of the judgment concerned reciprocal caps, namely whether the Alliance should have its costs capped if successful as a quid pro quo for not having to pay costs if it lost. (See my post here on this in the environmental context, where some doubts have been cast on whether this is Aarhus-compliant). The judge ordered £70,000, large by ordinary standards, but as the judge observed
this case will be hard fought, despite entreaties, with no quarter being given on either side
a bit like 22 August 1485.
An open mind?
Rule 1 of consultations is that they should be conducted with an open mind. A neutral reader of the consultation paper might doubt whether that was the case here. And their views might be strengthened by looking at the arguments wheeled out in this case. Anyway, MoJ now knows what Haddon-Cave J thinks of them.
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- They paved Plantagenet ‘n put up a parking lot
- Aarhus, A-G’s opinion and the reciprocal cap
- Why Mrs Litvinenko did not get her PCO, but what if it had been an environmental claim?
- High Court orders disclosure of closed judgment in Afghanistan interrogation case
- Eating horse – and where our language comes from
- Successful challenge to closures of children’s heart surgery units
- Standing and judicial review