Judicial Review Update Jonathan Moffett QC 19 February 2018 - PowerPoint PPT Presentation

Judicial Review Update Jonathan Moffett QC 19 February 2018

Introduction Five topics: 1. Right to a fair hearing 2. Consultation 3. Public sector equality duty 4. Systemic challenges 5. Costs

1. Right to a fair hearing The end of the road

1. Right to a fair hearing Poshteh v Kensington and Chelsea RLBC [2017] 2 WLR 1417 • Are decisions as to homelessness accommodation subject to art 6? • no: Ali v Birmingham CC [2010] 2 AC 39 • yes: Ali v United Kingdom (2015) EHRR 20 • Supreme Court followed its previous decision rather than the ECtHR

1. Right to a fair hearing Poshteh v Kensington and Chelsea RLBC [2017] 2 WLR 1417 • Supreme Court re-affirmed general approach of domestic courts: • it is not in the public interest for social welfare funds to be spent on legal disputes • art 6 cannot be expanded indefinitely • no civil right where an authority has discretion as to how it performs duties which call for an exercise of judgement

2. Consultation – Part 1 Be careful what you ask for

2. Consultation – Part 1 R (Derbyshire CC) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority [2016] EWHC 3355 (Admin) • Challenge to consultation on expanding Combined Authority to include Chesterfield DC • Consultation questionnaire did not actually ask whether consultees thought that Chesterfield should be part of the Combined Authority

2. Consultation – Part 1 R (Derbyshire CC) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority [2016] EWHC 3355 (Admin) • Ouseley J held that consultation was unfair: • questions asked must be ones that can be understood by consultees and which will generate answers which consulting body can properly understand in its decision- making process • questions asked around the main issue were not a proxy for a simple question on the main issue

2. Consultation – Part 2 As clear as mud

2. Consultation – Part 2 R (Jones) v Denbighshire CC) [2016] EWHC 2074 (Admin) • Challenge to decision to close two primary schools and establish a new primary school • Proposal to be implemented in two phases: (1) new school to operate on two sites of existing schools, (2) new school to move to new single site • Challenged on the basis that the consultation document was unclear

2. Consultation – Part 2 R (Jones) v Denbighshire CC) [2016] EWHC 2074 (Admin) • Divisional Court upheld the challenge: • looked at as a whole, the consultation document was “hopelessly confused” • fundamental inconsistencies as to whether Council was consulting only on phase 1 or on both phases 1 and 2 • differences between different language versions were “highly regrettable”

3. Public sector equality duty Call a spade a spade

3. Public sector equality duty R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin) • Challenge to decision to reduce funding of voluntary organisations who provide short breaks to disabled children • Councillors were provided with all the information they needed to comply with PSED and were provided with the text of s 149 of the Equality Act 2010 • But councillors were told that PSED required them to keep the welfare of service users and their families at the forefront of their minds, particularly the most disadvantaged

3. Public sector equality duty R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin) • Laing J quashed the decision: • councillors had been directed to a formula that did not accurately capture the effect of s 149 • councillors were told to focus on the wrong question • a paraphrase of a statutory requirement which includes some but not all relevant matters is insufficient

4. Systemic challenges – Part 1 Nothing is impossible

4. Systemic challenges – Part 1 R (Liverpool CC) v Secretary of State for Health [2017] EWHC (Admin) • Knock-on consequences of Cheshire West and Chester Council v P [2014] AC 896 • Local authorities were not funded to cover increased cost of applications to authorise deprivations of liberty • Argued that government’s failure to provide funding gave rise to an unacceptable risk of illegality

4. Systemic challenges – Part 1 R (Liverpool CC) v Secretary of State for Health [2017] EWHC (Admin) • Garnham J dismissed the challenge: • case law on unacceptable risk of illegality relates only to unacceptable risk of procedural unfairness • reliance on R (Hillingdon LBC) v Lord Chancellor [2008] EWHC 2683 (Admin) was misplaced: that was an irrationality case • in any event, the evidence did not show that it was impossible for local authorities to find the money

4. Systemic challenges – Part 2 Watch this space

4. Systemic challenges – Part 2 R (Woolcock) v Secretary of State for Communities and Local Government (CO/4711/2016) • Challenge to system for enforcing council tax whereby defaulters are committed to prison for non-payment • Alleged that procedure is systemically unfair • Due to be heard by a Divisional Court at the end of December

5. Costs – Part 1 The early bird catches the worm

5. Costs – Part 1 R (RSPB) v Secretary of State for Justice [2017] EWHC 2309 • Challenge to new Aarhus cost-capping rules in environmental cases • Previous rule applied for fixed £5,000/£10,000 cap on claimant’s liability and fixed £35,000 cap on defendant’s liability • New rules allow for standard costs caps to be varied or removed • Challenge based on lack of predictability and “chilling effect” of uncertainty

5. Costs – Part 1 R (RSPB) v Secretary of State for Justice [2017] EWHC 2309 • Dove J dismissed this aspect of the challenge, but held that: • any application to vary the costs cap would have to be made in the acknowledgment of service • would have to be “good reason” to apply for variation at a later stage, e.g.: • it transpires that claimant provided misleading information, or • the claimant’s financial position has changed

5. Costs – Part 2 Winning isn’t everything

5. Costs – Part 2 R (Tesfay) v Secretary of State for the Home Department [2016] 1 WLR 4853 • Challenges to decisions to remove asylum-seeker to other EU countries • Decisions withdrawn after adverse Supreme Court judgment, but dispute as to costs • Court of Appeal applied R (M) Croydon LBC [2012] 1 WLR 2607

5. Costs – Part 2 R (Tesfay) v Secretary of State for the Home Department [2016] 1 WLR 4853 • Court of Appeal awarded the claimants their costs: • success in public law proceedings must be judged against what was achievable • securing reconsideration of a decision will usually be considered a success • the fact that eventual reconsideration goes against the Claimant is not a reason for refusing costs