UK Family Law Reform

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From: david@ukfamilylawreform.co.uk
Sent: Friday, September 1, 2017 4:24 PM
To: Jamie.Fennell@Milton-keynes.gov.uk
Subject: Acting unreasonably & unlawfully is subject to legal challenge

Dear Jamie Fennell,

All public bodies make decisions, usually many every day. The types and categories of decisions are varied, ranging from local authorities making decisions on planning applications, to government bodies deciding to issue guidance and regulatory decisions in relation to corporations and individuals.

When exercising their statutory functions, public bodies have the capacity to affect the lives of individuals, groups of citizens and industry.

Both the common law and statute lay down parameters within which such decisions should be made. The overall purpose of this is simple: to avoid the state and its agencies wielding such power in a way that is arbitrary.

Most decisions are capable of challenge by way of an appeal mechanism and, failing that, judicial review. No public body wants to bear the expense and uncertainty of challenges in courts and tribunals. More importantly, decision makers in the public sector will wish to make sure that they get their processes right so they can make robust and lasting decisions.

This Practice Note provides a practical guide to the law relating to key aspects of decision making to minimise the risks of public bodies making decisions that are unlawful and subject to legal challenge.

Legal Requirements

Declaration of Interests

Public bodies should make decisions dispassionately according to the law and the materials before them. It is important that decision makers have no personal interest in the subject on which they are adjudicating.

It is a fundamental principle of law that a decision maker should not be a “judge in his own cause”. This principle applies to all public decision makers.

In the leading case in this area, R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ungarte (No. 2) [2001] 1 AC 119, Lord Browne-Wilkinson made this clear (att 132G-133C):

“The fundamental principle is that a man may not be a judge in his own cause … If a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in the outcome is sufficient to cause his automatic disqualification …. In such a case, once it is shown that the judge is himself a party to the cause or has a relevant interest in the subject matter, he is disqualified without any investigation into whether there was a likelihood of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure”.

Examples of interests which a decision maker may have in the subject of a decision he is making which are likely to preclude his participation in the decision are as follows:

where the decision will affect a friend or relation
where the decision maker has a financial interest in its outcome
where the decision maker is a director of an organisation affected by its outcome
where the decision maker is a member of a group campaigning for one outcome or another
where the decision maker’s spouse or civil partner has an interest in the outcome

The Local Government Model Code of Conduct made under section 50 of the Local Government Act 2000 provides both a model and a template for the declaration of interests by decision makers. Part 2 of the Code provides for the declaration of personal interests by members and for them not to take part in decision-making where these are affected.

Although a very close connection with the subject of the decision will automatically disqualify a person from making the decision in question, declaration of a less direct interest before the decision is made may permit them to take part. In these circumstances, the person concerned and any colleagues participating in the decision making process must decide whether the connection would lead a fair minded and informed observer to conclude that there was a real possibility that the decision maker would be biased if they took part (Magill v Porter [2001] UKHL 67).

As a matter of practicality, the decision maker should usually raise the issue with the person affected by the decision to be made and take account of any views they express when deciding whether they should stand down. The person affected by the decision may opt to waive their right to object on grounds of apparent bias (e.g. R v Secretary of State for the Home Department, ex parte Fayed [2001] Imm AR 134 at [85]).

Following correct procedure

A decision maker will frequently be required to follow a set procedure for making its decisions. This may take the form of procedural requirements set out in statute, statutory instrument, guidance (whether statutory or non-statutory) or a procedure which the decision maker has set for itself. Any such procedure will usually have been drafted with the purpose not only of guaranteeing that the decision maker takes into account all relevant considerations but also to ensure procedural fairness for those affected by the decision it is required to make.

Departure from an established prescribed procedure in itself can give rise to a successful legal challenge, by way of judicial review for example, even if no unfairness results:

“… susceptibility to judicial review under this head [procedural impropriety] covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice” (per Lord Diplock, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 411A-B).

Examples of prescribed procedures for decision makers include:

express duty to consult
express duty to serve notice
express duty to publish agenda
express duty to seek written representations
express duty to hold oral hearing if requested
express duty to give reasons for decision
express duty to be informed of right of appeal

While it is necessary for a public body making decisions to follow any set procedure, doing so does not necessarily render its procedure fair. For example, where notice has been properly served on an affected person and they have indicated an intention to serve written representations outside the prescribed timescale, fairness may require that the body adjourn to allow them to do so even though an express rule setting out requirements of service would permit it to proceed if representations have not been received within the specified timescale.

Consultation

Central Government and other public bodies are required by law to consult before making decisions, particularly in the context of making policies or issuing Guidance.

The Cabinet Office has published a Code of Practice on written consultation which sets out the following principles which apply to consultations by central government and provide a useful guide to other consultation exercises:

Timing of consultation should be built into the planning process for a policy (including legislation) or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage.
It should be clear who is being consulted, about what questions, in what timescale and for what purpose.
A consultation document should be as simple and concise as possible. It should include a summary, in two pages at most, of the main questions it seeks views on. It should make it as easy as possible for readers to respond, make contact or complain.
Documents should be made widely available, with the fullest use of electronic means (though not to the exclusion of others), and effectively drawn to the attention of all interested groups and individuals.
Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for a consultation.
Responses should be carefully and open-mindedly analysed, and the results made widely available, with an account of the views expressed, and reasons for decisions finally taken.
Departments should monitor and evaluate consultations, designating a consultation co-ordinator who will ensure the lessons are disseminated.
Failure to consult properly and adequately can lead to a policy or decision being overturned by the courts: see for example R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 Admin which was Greenpeace’s successful challenge to the government’s consultation on the future of nuclear power, it having previously made clear that it was in favour of building additional civil nuclear plant.

The legal requirements for a proper consultation exercise are known as the “Sedley requirements”, following requirements put forward by Stephen Sedley QC in argument which were adopted by Hodgson J in R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168.

The Sedley Requirements

consultation must be made at a time when proposals are at a formative stage
sufficient reasons for the proposal must be given to allow intelligent consideration and response
adequate time must be given for response
the product of the consultation must be conscientiously taken into account in finalising proposals
The Cabinet Office code of practice requires that 12 weeks should be given for responses. Shorter timescales may be appropriate in limited circumstances, for example where a full consultation process has already taken place and the public body wishes to seek additional comment on amended proposals.

Within Remit

It is a fundamental principle of administrative law that a public body may only do what it is empowered or required to do by statute, whether expressly or by necessary implication.

For decision makers this means that a public body must make a decision that lies within the requirements of its governing legislation. Equally, if they have a duty to perform in determining some question or other, they must not shirk their duty. Doing otherwise would be to render their decision ultra vires and so void.

Public bodies are also governed by the requirements of other legislation, such as the European Communities Act 1972 and the Human Rights Act 1998, which respectively implement European Law and the European Convention on Human Rights. Further there may be duties imposed generally on public bodies, for example by sections 19B and 71 of the Race Relations Act 1976 or the Sex Discrimination Act 1975. Accordingly, public bodies must make their decisions in a way that complies with all such duties placed upon them by statute.

Rational and evidence based

Whether a public body has a duty or discretion to exercise in making its decision, that decision must be rational.

An irrational or unreasonable decision is one that was not reasonably open to it, as expounded by Lord Green MR in the Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223.

Meaning of irrationality

“Unreasonableness can include anything which can objectively be adjudged to be unreasonable. It is not confined to culpability or callous indifference. It can include, where carried to excess, sentimentality, romanticism, bigotry, wild prejudice, caprice, fatuousness or excessive lack of common sense” In Re W (An Infant) [1971] AC 682, per Lord Hailsham at 699H
“a decision which does not add up” (R v Parliamentary Commissioner for Administration, ex parte Balchin [1998] 1 PLR 1)

“a decision which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, per Lord Diplock at 1064 E-F)

Decisions makers are given a degree of latitude by the courts when challenged by way of judicial review on grounds of unreasonableness. The Courts recognise that the decision was for the public body to make, not the court, and so they are reluctant to interfere where they might disagree with a decision but it is objectively rationally made.

One way that a public body can ensure that its decisions are objectively reasonable is to ensure they are evidence-based. Regulators such as the Financial Services Authority proceed to assess risk and apply their powers according to evidence-based decision-making; this is also an approach that is being promoted by the Better Regulation Executive and the Risk and Regulation Advisory Council.

Those making decisions in the public interest should not do so capriciously or on the basis of personal feeling. They should look at the available information and evidence and reach a considered view in light of their powers and duties. It does not matter if another person looking at the same material might have reached another decision. What matters is that the decision maker can be shown, objectively, to have taken the material into account and reached its own conclusion based upon the evidence.

All relevant considerations

An aspect of reaching a rational and evidence-based decision is taking all relevant factors or considerations into account. This was made clear by the House of Lords in Anisminic v Foreign Compensation Commission [1969] AC 147, but the principle is more simply enunciated by Lightman J in R v Director General of Telecommunications, ex parte Cellcom Ltd [1999] COD 105:

“The Court may interfere if the Director has taken into account an irrelevant consideration or has failed to take into account a relevant consideration”.

This does not mean that a decision maker must consider all extraneous material, but it should have before it as much information as possible that is relevant to the decision that it is about to make. Deciding what is relevant and what is not depends on the subject matter of the decision, but examples include:

the proposal
responses to consultation or written representations received
guidance on parameters for decision
cost of decision
effects of decision on others
advice from officers
Examples of irrelevant considerations include:

the need to get business finished quickly
assumptions not based on evidence
personal experience of a different situation
dislike for the person affected by the decision or what they represent

Proper Purpose

A public body must not act in bad faith, which is akin to dishonesty (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, at 229).

It must act for a proper purpose. Those making public decisions must not have ulterior motives and must apply their minds when making decisions for the correct statutory objective (Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997).

Examples of Improper Motive

exercising local authority powers for the electoral advantage of a particular political party (Magill v Porter [2001] UKHL 67)
land acquisition for re-sale at a profit
to protect an unborn child from the mother’s right to refuse medical intervention
delaying a process so that a challenge to it became time-barred

ECHR-Compliant

It is unlawful for any public body to act contrary to one of the rights contained in the European Convention on Human Rights (“ECHR”) that has been incorporated into domestic law by the Human Rights Act 1998 (“HRA”)(section 6(1) HRA).

“Public bodies” for this purpose are defined in section 6(3) of the HRA as follows:

“6(3) In this section “public authority” includes:
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.”

Schedule 1 to the Freedom of Information Act contains a list of public bodies for the purposes of that Act. This provides a useful starting point for checking whether a particular decision maker is likely to fall within the definition contained in section 6(3) HRA. However, it is only a starting point; what matters in deciding whether a decision maker falls within the definition is whether the body in question is exercising public functions.

A variety of cases have considered the question of what amounts to a functional public authority for the purposes of section 6(3)(b) of the HRA: see here.

A review of this case law provides a private body is likely to be held to be performing public functions under section 6(3)(b) if:

its structures and work are closely linked with the delegating of power or contracting out from a State body; or
it is exercising powers of a public nature directly assigned to it by statute; or
it is exercising coercive powers devolved from the State.
Other factors such as the following may all be taken into consideration, perhaps cumulatively, in determining whether a function has sufficiently public “flavour”:

the fact of delegation from a State body,
the fact of supervision by a State regulatory body,
public funding,
the public interest in the functions being performed, or
motivation of serving the public interest, rather than profit

The ECHR contains the following articles that have been incorporated into domestic law that may be relevant to public bodies making decisions.

Article 6 is likely to be of particular relevance to decision makers sitting in a quasi judicial capacity and holding hearings. It provides as follows:

Article 6 Right to a fair trial

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Breach of an ECHR right by a decision maker may render its decision not only unlawful but subject to an action for damages: see section 8(3) HRA (and R (Bernard) v Enfield Borough Council [2003] HRLR 111 for an example).

Proportionate

Public decision makers should act in a way that is proportionate. While the common law does not necessarily accept proportionality as a freestanding ground for judicial review, it is a principle embedded in both EU and ECHR law and consequently touches upon most of the decisions taken by public bodies:

“[Proportionality] is one of the fundamental principles of Community law, standing alongside such other principles as those of equal treatment and legitimate expectation. it has not so far (perhaps unfortunately) found any very promising seedbed in English domestic law. It is not anywhere vouchsafed in the EC Treaty; rather it is part of what may perhaps be called the common law, or the internal law, of the Community, having been developed by the Court of Justice as an integral part of the legal discipline applied by that court to the Community institutions in relation to their implementation of the Community legal order. When member states also act to implement Community law, or to take measures necessarily relying on exemptions from Treaty obligations provided by Community law, they too will be subject to this internal law” (R v Secretary of State for the Environment, ex parte Oldham Metropolitan Borough Council [1998] ICR 367, per Laws J at 384H to 385A)

“Reference to the Human Rights Act 1998 … makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied” (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions[2001] UKHL 23, per Lord Slynn at [51]).

A decision that is proportionate, is also likely to be rational, evidence-based and reasonable (see R v Secretary of State for the Home Department, ex parte Brind[1991] 1 AC 696, per Lord Lowry at 766D-E): “reliance on proportionality is simply a way of approaching the Wednesbury formula: was the administrative act or decision so much out of proportion to the needs of the situation as to be “unreasonable” in the Wednesbury sense”.

Properly Reasoned

Procedural requirements may specify that a public body must give reasons for its decisions. It should do so in any event, not only because the common law may require it to do so, but because a well reasoned decision will inform those affected fully about the decision the body has taken. Reasoned decisions also enable those affected to consider whether to subject it to legal challenge, and on what grounds and well reasoned decisions help public bodies withstand legal challenge by explaining their thought processes.

The process of setting out written reasons for a decision also improves the decision making process by making the decision maker focus on the logic lying behind his decision (R v Brent LBC, ex parte Baruwa (1996) 28 HLR 361).

Reasons do not need to be excessively detailed, but do need to be adequate. Adequate reasons are reasons that:

deal with all the substantial points that have been raised
are sufficient for the parties to know whether the decision maker has made an error of law
set out and explain key aspects of the decision maker’s reasoning in coming to its conclusion
include all aspects of reasoning that were material to the decision made
but do not need to set out in detail all the evidence and arguments referred to the decision maker

Decision makers should record the reasons for their decisions at the time they are made. In the event of a subsequent appeal or other legal challenge, it will not usually lie open to them to elucidate, correct or add to their reasons at a later stage (see e.g. R v Secretary of State for the Home Department, ex parte Lillycrop (unrep 27.11.96)).

Practical Requirements

Reading all the papers

Decision makers are often busy people. The decision to hand may be only one of a handful of things that occupy their time on any given day. They may also have been presented with a substantial bundle of papers to read that are relevant to the decision to be made.

They must read all the papers that have been provided and that are relevant to the decision they are about to make. Failure to do so, out of laziness, insufficient time or a belief that they are irrelevant, would be a failure in their duty. It would likely lead to a decision that is unlawful on the basis that it fails to take account of relevant considerations.

Taking legal advice where necessary

Some procedural rules expressly require a decision maker to be accompanied by a legal adviser. By way of example, the disciplinary committees of the regulators of the professions (doctors, teachers, social workers etc) are often required by the rules governing their procedures to have in attendance a legal adviser or assessor to provide independent legal advice to the committee.

Paragraph 7 of Schedule 4 to the Medical Act 1983 makes the following provision with respect to legal assessors for the General Medical Council, which provides a common model for the appointment and role of such legal advisers.:

7. (1) For the purposes of advising:

(a) the Investigation Committee where it is considering giving a warning to a person;

(b) an Interim Orders Panel; or

(c) a Fitness to Practise Panel,

on questions of law arising in proceedings before them, there shall in all such proceedings be an assessor to the Panel who shall be appointed by the General Council and shall be-

(i) a person who has a 10 year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990,

(ii) an advocate or solicitor in Scotland of at least 10 years’ standing, or

(iii) a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 10 years’ standing.

(2) An assessor may be appointed under this paragraph either generally or for any particular proceedings or class of proceedings.

(3) The General Council may make rules as to the functions of assessors appointed under this paragraph, including without prejudice to the generality of the powers to make such rules, the function of advising on the drafting of decisions.

(4) Rules made under this paragraph in connection with proceedings before the Investigation Committee, an Interim Orders Panel or a Fitness to Practise Panel may in particular contain such provisions as appear to the General Council expedient for:

(a) securing that where an assessor advises the Committee or a Panel on any question of law as to evidence, procedure or any other matter specified in the rules, he shall either-

(i) so advise in the presence of every party, or person representing a party, to the proceedings who appears at the proceedings, or

(ii) inform every such party or person of the advice that he has tendered, if the advice is tendered after the Committee or the Panel have begun their deliberations;

(b) securing that every such party or person shall be informed if in any case the Committee or the Panel do not accept the advice of the assessor on any such question, and may also contain such incidental and supplementary provisions as appear to the General Council expedient.

(5) The General Council may pay to persons appointed to act as assessors such remuneration as the Council may determine.

(6) Rules under this paragraph shall not come into force until approved by order of the Privy Council.

Other decision makers are not required to have legal advice available to them. However, any decision maker who is in any doubt about their remit should take independent legal advice. This may need to be disclosed to those affected by the decision in question.

Some decision makers find it helpful for the person giving them independent legal advice to reduce the reasoning they have expressed during their deliberations to writing. This has many advantages; but the legal adviser should faithfully reproduce the decision makers reasoning and refer to information they considered relevant, rather than interposing his own thoughts or view.

Minutes

Some decision makers’ procedural rules require minutes to be taken. Others prohibit this, either expressly or as a matter of practice.

Some public decision-makers will have rules concerning the process for agreeing Minutes, but in any event having a ready formula for doing so is usually good practice.

The relevant procedure should be followed, provided that an adequate record is kept of the decision reached and the reasons it was made.

Minutes may well be covered by a public body’s publication scheme pursuant to section 19 of the Freedom of Information Act 2000, and so be made available to the public and any interested parties following the decision-making process.

Transparency and FOIA

Public bodies do not operate in a vacuum. Even though many may deliberate in private, their papers may subsequently be disclosed to the public either in accordance with the relevant publication scheme under the Freedom of Information Act 2000 or as a result of a specific request for information under section 1 of that Act by a person affected by the decision in question.

Decision makers will wish to remember that all the material they consider and any notes they make, as well as their ultimate decision, may be disclosable in this way.

Challenge

Mechanism for challenge

Many decisions made by public bodies are subject to a specified route of review or appeal, whether that is set out in statute or not. Where a decision is not subject to such an express route of challenge, it is likely to be challenged by way of judicial review.

Ability to Review Decision

Public bodies may wish to establish mechanisms by which a decision maker can revisit and review its own decision, as where this is possible it can provide a swifter and less costly way of dealing with an application for judicial review than defending a decision through to a court hearing.

Yours Sincerely

David Mortimer

http://www.ukfamilylawreform.co.uk/