Trending… in public law
The policy agenda is pushing public law cases away from the courts: this and nine other key developments are one silk's top 10 for 2013
As the year draws to a close, weekend papers fill up with Top 10s for the past 12 months – films, books, celebrities, comedy moments…
So here are my top 10 public law trends of 2013.
At number 10 – guidance on Convention rights damages
Because damages are not generally available for breach of public law duties at common law, public law cases seeking monetary awards often proceed on the basis of “just satisfaction” damages under s 8 of the Human Rights Act 1998. R (on the application of Sturnham) v Parole Board  UKSC 23;  2 WLR 1157 contains the most important guidance from the Supreme Court about claiming Convention rights damages since R (Greenfield) v Secretary of State for the Home Department  UKHL 14;  1 WLR 673.
Sturnham was about appropriate levels of compensation for violations of article 5 where prisoners have had delayed Parole Board hearings. It is relevant to the high number of “copycat” petitions currently going through the Scottish courts, both on the Sturnham Parole Board delay point, but also on the James v United Kingdom (application 25119/09) (2013) 56 EHRR 12 point about insufficient availability of prison courses: see, e.g. M v The Scottish Ministers  CSOH 112; 2013 SLT 875.
The guidance of general application in Sturnham can be summarised as follows. Courts should be guided by clear and consistent practice of the Strasbourg court. Awards should reflect the awards in comparable Strasbourg cases, but also bear in mind that Strasbourg cases reflect the cost of living in the countries they come from and may need to be scaled accordingly. Domestic courts should resolve disputes of fact relevant to damages. There is a de minimis principle below which damages will not be awarded. In any case where substantial numbers of Strasbourg authorities are to be cited, the court requires them to be presented by (i) using an agreed schedule setting out specified information about the cases; (ii) a chronological list of the cases; and finally (iii) clear submissions explaining the principles sought to be derived from any authority cited. Otherwise “the citation of authorities is liable to amount to little more than one damn thing after another; or even… the same damn thing over and over again” (para 103).
(It is not unknown for judges of the Supreme Court to be uncomplimentary about their brethren’s opinions, and here is a classic from this case. Lord Reed gave the main judgment, which was a characteristic detailed analysis explaining the law and summarising conclusions, in 103 paragraphs. It provoked Lord Carnwath to give a “concurring” judgment, so he could demonstrate what he termed a “less laborious” route to the same end…)
At number 9 – delay pleas: an Indian summer
Soon, once the Courts Reform (Scotland) Bill is enacted, statutory time limits for bringing applications for judicial review will exist in Scotland. It is intended that the time limits will be three months, or such longer period as the court considers equitable having regard to all the circumstances. This is broadly in line with time limits which have operated for some time in England.
Until those reforms are made, Scottish respondents have to rely on mora pleas in response to dilatory petitions. 2013 was a bumper year for mora pleas, but as usual they almost always failed (e.g. McGinty v Scottish Ministers  CSIH 78; Anderson v Secretary of State for the Home Department  CSOH 52; Donnelly v Governor of HMP Shotts  CSOH 103). On the rare occasions where mora pleas were strong, the courts were willing to reject them on purely procedural grounds (NJ and EH v Lord Advocate  CSOH 27; 2013 SLT 347).
The current trend is for judges to concentrate on the elements of taciturnity and acquiescence, and to stress that mere delay is not enough. Their approach may be criticised as one sided, focusing on whether the petitioner’s actions in the past demonstrate they have effectively given up their case. They give little if any weight to respondent issues like the interests of good administration and knowing what provision for liabilities they require to make (cf Lord Rodger in King v East Ayrshire Council 1998 SC 182, 196; Crossan v South Lanarkshire Council 2006 SLT 441, para 38).
The nub of the problem is that judges are applying private law concepts to public law cases. This is out of step with the trend of modern public law to treat private and public cases differently (e.g. Axa General Insurance, Petitioners  UKSC 46;  1 AC 868; Walton v Scottish Ministers  UKSC 44; 2013 SC (UKSC) 67, or more recently, para 31 of the Supreme Court decision in Financial Services Authority v Sinaloa Gold plc  UKSC 11;  2 AC 28).
Hendrick v Chief Constable of Strathclyde  CSOH 66, a rare case where a mora plea succeeded, is due to be heard on appeal to the Inner House. But since the Inner House has very recently considered mora (Portobello Park Action Group v City of Edinburgh Council  CSIH 69; 2013 SC 184), and the Scottish courts are not inundated with petitions for judicial review (342 in 2010-2011), it is likely any change in approach will be left to the Courts Reform (Scotland) Act.
At number 8 – wider scope for EU arguments
A survey of 2013 Court of Session decisions shows little increased enthusiasm on the part of Scottish practitioners to take EU law points, except perhaps in public procurement cases (e.g. Healthcare at Home v Common Services Agency  CSIH 22; 2013 SC 411). But two 2013 developments are worth noting.
First, the basis on which references can be made from Scottish courts to the CJEU for a preliminary ruling has widened. On the authority of CILFIT Srl v Minister of Health (C-283/81)  ECR 3415, references were typically not made if there was previous authority on the matter, or the answer was clear. So when the Supreme Court was able to apply existing EU law and get an answer to the case before it in Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd  UKSC 18;  2 All ER 852, it might have been thought that would be an end to the matter. But in fact the court decided to refer the case to the CJEU.
The case concerned the application of copyright law to internet use and had important implications for many millions of people across the European Union. The court noted a recent CJEU recommendation in relation to references ( OJ C338/1), stating that a reference may be useful where there is a new question of interpretation of general interest for the uniform application of EU law, or where the existing case law does not appear to be applicable to a new set of facts. The Supreme Court found that the transnational dimension meant it was desirable there should be a reference to the CJEU.
Secondly, developments in the CJEU suggest it is only a matter of time before Charter-based arguments bite in Scottish courts. Many 2013 CJEU cases have considered Charter rights, but it is worth singling out Case C300/11, ZZ v Secretary of State for the Home Department  3 WLR 813 as a good example of the rights making a difference. It concerned an immigration decision to expel a French/Algerian EU national from the UK on grounds of public security. Charter article 47 fairness rights affected the court’s approach to non-disclosure on grounds of public security.
It is fair to say that Charter rights did not in the result help litigants in the Scottish courts in 2013 in cases where they were raised: see the McGeoch cases at  CSOH 6; 2013 SLT 183, and in the Supreme Court  UKSC 63;  3 WLR 1076; and Cairn Energy v Greenpeace  CSOH 50; 2013 SLT 570, para 26. But for future cases within the scope of EU law, Charter rights are likely to bolster arguments, and reinforce a proportionality based approach to review of administrative action.
At number 7 – legislative competence challenges can work
There have been many legislative competence challenges in Scotland. Almost all have failed. But in 2013 the Supreme Court upheld an Inner House decision that found a provision of an Act of the Scottish Parliament to be “not law”. In Salvesen v Riddell  UKSC 22; 2013 SC (UKSC) 236, a provision relating to agricultural tenancies was found to violate article 1 of Protocol 1 of the ECHR. It was accordingly outwith competence under s 29 of the Scotland Act 1998.
By that time Mr Riddell, the tenant farmer affected, had taken his own life (shortly after the Inner House decision). The legal aspects of the case rather pale into insignificance next to that human tragedy, particularly since the provision found disproportionate had been designed to protect tenant farmers like Mr Riddell from dissolution of their farming partnerships by landlords. But it is perhaps worth noting what the Supreme Court decided to do about the finding of legislative incompetence. The court was not prepared to make an order limiting the retrospective effect of the decision. But it recognised that the legislation had been on the statute book for some time and rights were affected. So it suspended the effect of its finding for a year under s 102 of the 1998 Act (with leave to apply for further time), to give the authorities time to legislate to regularise the position. The Scottish Government has just issued a consultation on remedial legislation, the Draft Agricultural Holdings (Scotland) Act Remedial Order 2014, open until February 2014 for responses.
Otherwise, in keeping with the normal trend, in 2013 the challenge to the minimum alcohol pricing legislation failed at first instance (The Scotch Whisky Association v Lord Advocate  CSOH 70; 2013 SLT 776), but is under appeal. The latest legislative competence challenge, launched in November 2013, is to the prohibition on prisoners voting in the Scottish independence referendum contained in s 3 of the Scottish Independence Referendum (Franchise) Act 2013, passed earlier this year by the Scottish Parliament.
At number 6 – UKSC appeals from Scotland are likely to decline
2013 may be the last bumper year of Scottish public law appeals in the Supreme Court. For some years disquiet has been expressed as to whether Scottish civil cases should be able to be appealed to the Supreme Court without leave. The current filter is whether two counsel certify the case as reasonable. Counsel on occasion refuse to certify (e.g. Singh v Napier  CSIH 5). In cases where they have certified an appeal, sometimes the Supreme Court justices are complimentary about their judgment (McGraddie v McGraddie  UKSC 58;  1 WLR 2477), but more often in recent times not (Uprichard v Scottish Ministers  UKSC 21; 2013 SC (UKSC) 219).
Meantime on the political stage, in the past members of the Scottish Nationalist Government have threatened to stop funding for Scottish civil appeals to a London based Supreme Court, and there have been various reviews carried out. A slightly less extreme position was adopted in 2013, when the Scottish Government consulted on introducing a leave requirement. Consultation closed at the end of August 2013 and an analysis of responses was published in November 2013. It is likely there will be provision in the Courts Reform (Scotland) Bill requiring leave, and a consequent reduction in Scottish Supreme Court appeals.
But there is one small area in which the Supreme Court showed no inclination to relinquish jurisdiction in relation to Scottish appeals in 2013, illustrated in the case Kapri v Lord Advocate  UKSC 48;  1 WLR 2324. Kapri analysed changes made by the Scotland Act 2012 to the Supreme Court’s jurisdiction to deal with devolution issues (paras 14-17). Essentially the 2012 Act created a new category of “compatibility” issues in criminal cases (mainly human rights or EU issues), and it is only those which may proceed from the High Court to the Supreme Court.
Lord Hope explains the differences in the compatibility jurisdiction from the devolution issue jurisdiction, under which these types of issues formerly went to the Supreme Court. Essentially the scope of appeal is widened to include acts of courts. But at the same time it is made explicit that there are areas where the Supreme Court may not exercise jurisdiction – anything that is not a compatibility issue must be remitted to the High Court in Scotland for determination. Kapri held that extradition cases properly raise devolution issues, not compatibility issues, as they are not criminal proceedings, so the Supreme Court will retain its powers for determining devolution issues in relation to these.
At number 5 – Convention rights are a last resort
In the Court of Session in 2013 there have been some notable cases where petitioners have successfully asserted Convention rights against the state, for example the challenge to the smoking ban in the state hospital (M v State Hospital 2013 SLT 1001), or to the child protection order system (NJ and EH v Lord Advocate  CSOH 27; 2013 SLT 347).
By contrast, the Supreme Court has been putting the brakes on use by litigants of Convention rights. First there is the case Re Reilly’s Application for Judicial Review  UKSC 61;  3 WLR 1020. The message is clear. Start with domestic law first. Only go to Strasbourg jurisprudence if you absolutely have to. This is because protection of human rights already permeates the domestic system. (If you were fortunate enough to have been at the SPLG’s human rights event in March 2011, you will recognise a lot of the themes that have now become UK law in Reilly’s case from Lord Reed’s earlier talk: see http://splg.co.uk/2011/10/the-relationship-between-uk-courts-and-strasbourg/.)
Secondly, there is McGeoch v Lord President of the Council  UKSC 63;  3 WLR 1076 on prisoner voting rights. Two conjoined cases (Chester being the other one) were decided against a backdrop of the Strasbourg court consistently finding that the UK’s blanket ban on prisoners voting violated article 3 of the First Protocol to the Convention. The ratio found that there would have to be some “most egregious oversight or misunderstanding” before the court would refuse to follow a Grand Chamber decision. But while Baroness Hale and Lord Clarke in their speeches expressed some sympathy with the Strasbourg finding that the current system was arbitrary, the other judges did not. Lord Sumption even goes as far as saying he would have decided in the opposite way from Strasbourg (para 137), and clearly thinks the European Court of Human Rights is paying insufficient regard to the democratic process.
Significantly, the court refused to grant a declaration of incompatibility, because these particular appellants’ rights were not violated, given their offences and parole status. The case was subsequently described in by Baroness Hale in her Warwick Lecture as a “small rebellion against Strasbourg”: http://www.supremecourt.gov.uk/docs/speech-131128.pdf. (There was also an argument that EU law gave a right to vote, but that also failed.) The overall impression was of Supreme Court justices being very reluctant to follow Strasbourg on prisoner voting rights.
So perhaps the current Consultation on Long-term Reform of ECHR and ECtHR System, launched by the Council of Europe’s Committee, is well timed.
At number 4 – common law fairness is a powerful ground of challenge
There has been a reaffirmation of common law requirements of fairness in administrative decision making by the Supreme Court. There are two cases of note. In Reilly’s case, the Supreme Court restated fairness principles. It held that the court objectively looks for itself to see whether requirements of fairness have been observed. It is not a question of deciding whether an administrative decision maker’s decision as to procedure was Wednesbury reasonable (para 65). Next, it found that a fair hearing is required not just so there are better decisions (paras 67-71), but also for (i) reasons of “dignity”, so that a person affected is paid due respect by being able to participate; and (ii) the rule of law. Cost considerations are likely to have little bearing on the matter (para 72). Various factors specific to the particular matter before the court, oral hearings before the Parole Board, were then set out.
The second case worth noting is Bank Mellat v HM Treasury (No 2)  UKSC 39;  3 WLR 179, because it demonstrates the strength of common law fairness. The majority considered it procedurally unfair at common law for the Executive to make an order without giving advance notice and an opportunity to make representations before exercising a “draconian statutory power”, despite the absence of any express requirement in the enabling legislation itself. (The case is also of importance in deciding that the Supreme Court has powers to hold “closed material” or secret procedure, again by majority.)
Scotland has had its own fairness decisions in 2013, and if any common theme is to be drawn from these, it is one of the principles restated in Reilly’s case: that decisions about fairness of proceedings usually turn on a consideration of the particular circumstances of a case: Re Reilly at para 80; South Lanarkshire Council v Scottish Information Commissioner  UKSC 55;  1 WLR 2421, paras 29-33; M v Law Society of Scotland  CSOH 28; 2013 SLT 462.
At number 3 – proportionality enhances judicial power
Proportionality tends to be a more intrusive standard of review of decisions than Wednesbury reasonableness. The current state of Scots public law is that proportionality is not a common law ground of review (Somerville v Scottish Ministers  UKHL 44; 2008 SC (HL) 45).
If a litigant is fortunate enough to find Convention rights or EU law arguments, then the proportionality standard of review can be invoked. Even where available, it is not an easy principle to apply, as shown by the division of judges in Bank Mellat, above. The result of the case in the Supreme Court was that a counter-terrorism order made in relation to an Iranian bank was found disproportionate by a majority of 6-3. But if the decisions in the courts below are counted too, overall more judges thought the order proportionate than did not; yet the outcome was that the order was quashed.
Lady Justice Arden said, in an article published in Public Law earlier in the year (PL 2013, Jul, 498-518): “there are aspects of proportionality that need to be addressed at the highest level in the United Kingdom”. That opportunity came and went in Bank Mellat. Lord Reed did his best, setting out a historical and comparative analysis of proportionality between paras 68 and 76, and Lord Sumption provided a pithy summary of its requirements (para 20), and they both purported to agree with each other’s analysis of the principle of proportionality, if not its application. But the end result was judges all deciding different ways.
It is an inevitable feature of a more intrusive standard of review that there is additional room for difference of opinion between judges. This has the potential to introduce significant uncertainty into what are already difficult political decisions. The Supreme Court’s willingness to intervene in Bank Mellat contrasts with the space the Edinburgh courts have been willing to afford to Parliament and Government (see e.g. The Scotch Whisky Association v Lord Advocate  CSOH 70; 2013 SLT 776; and Sinclair Collis v Lord Advocate  CSIH 80; 2013 SC 221).
At number 2 – PEOs may make litigation affordable
Probably the biggest factor keeping people out of court is the cost of proceedings. Lawyers cost a lot. But so do Scottish court fees, after they underwent a big hike as a result of amendments to the Court of Session etc Fees Order 1997 (SI 1997/688) to try to reflect the actual costs of using the courts. The ability for litigants to apply for protective expenses orders (“PEOs”) to regulate liability for expenses in advance is important. 2013 has seen a lot of activity on PEOs in Scotland, both at common law and under new rules of court, RCS chapter 58A.
Chapter 58A came into being following a Government consultation due to infraction proceedings being brought against the UK (C-530/11 Commission v UK), because of it being prohibitively expensive to challenge certain environmental decisions. Those proceedings are likely to be decided by the court at the end of this year or the beginning of next year. Meantime, chapter 58A contains provisions for PEOs that are relatively favourable to petitioners. It sets a limit of £5,000 on the exposure of the petitioner to expenses should they fail. It is important to note that chapter 58A has a limited remit as specified in the rule, and does not apply to all public law cases. The first order under chapter 58A was granted by Lord Drummond Young in July 2013, in a case called Carroll v Scottish Borders Council. Guidance was requested as to proportionate procedure to obtain these orders, and a written decision is awaited.
If cases do not fall within chapter 58A, then petitioners have to rely on common law PEOs. The criteria for the grant of common law PEOs are difficult to satisfy, as cases in 2013 have shown. In particular, the courts are adopting a relatively stringent approach to the criterion that the case must raise a point of general public importance (Newton Mearns Flood Prevention Group v East Renfrewshire Council  CSIH 70).
Where common law PEOs are granted, caps on the expenses recoverable may lawfully be far higher than the £5,000 in the new rules (McGinty v Scottish Ministers  CSIH 78). (Since the monetary level at which common law PEOs are capped is variable, and levels of public interest are also variable, it is not self evident why the courts do not adopt an approach of “sliding scale” PEOs. If there is only a small degree of public interest, why not just increase the caps, instead of denying any certainty as to expenses in advance, which of itself is a disincentive to litigate?) Despite the difficulties in obtaining common law PEOs, a failure to have applied for them may prejudice a party later on when seeking restriction of expenses to which they are liable: Uprichard v Scottish Ministers  UKSC 21; 2013 SC (UKSC) 219.
The Taylor report on Review of Expenses and Funding of Civil Litigation in Scotland was published in 2013, as part of the ongoing civil court reforms. It contains little specific to public law actions, but agrees that PEOs should be retained. There is no recommendation to change the current common law criteria for grant, but there is a suggestion that guidance be worked up setting out the factors judges should take into account.
And at number 1 – the exodus of public law from the courts continues
Many areas of Scots public and administrative law are now dealt with by tribunals. Tribunals which deal with reserved issues (based on the categorisation in sched 5 to the Scotland Act 1998) broadly speaking fall within the structure set up by the Tribunals, Courts and Enforcement Act 2007 (“TCEA”). This structure has its own internal system of appeals and review. Steps are currently being taken to bring devolved tribunals into a similar structure. The Tribunals (Scotland) Bill passed stage 1 in the Scottish Parliament on 7 November 2013, although the Government has indicated it may not commence its provisions once passed until 2017.
Legislative powers already exist under which particular judicial reviews can be transferred to TCEA tribunals. Section 22 of Crime and Courts Act 2013 increased these powers. Immigration and asylum judicial reviews can be transferred into the tribunal system. This transfer power is significant, because immigration and asylum cases have for some time formed the bulk of the judicial review jurisdiction of the Court of Session.
In the courts there is now a jurisprudence of deference to tribunal decisions, continued in 2013. There are two strands to this jurisprudence: (1) very few challenges to tribunal decisions from the TCEA structure will be entertained by the courts; and (2) on the rare occasions cases do make it to the courts, low intensity review is applied.
On (1), cases are only heard in the courts if they raise an important point of principle or issue of general importance, or there is some other compelling reason (the “Eba test”, from Eba v Advocate General for Scotland  UKSC 29;  1 AC 710). It is not enough that there is an error of law. For judicial review cases, Eba has proved difficult to apply in Scotland because there is no leave stage for judicial review. In A v Secretary of State for the Home Department  CSIH 62; 2013 SLT 1132 the court attempted to deal with this by providing “guidance”. It said that there should be clear averments addressing the Eba test in the petition. The point would then be dealt with by the court either on paper at first order stage or at an oral hearing lasting no longer than an hour. It was made clear that the test that has to be passed is “a stringent one designed to allow review only in rare and exceptional cases”.
For appeals from the Upper Tribunal to the Court of Session, the Eba test now also applies in Scotland. Section 23 of the Crime and Courts Act 2013 reversed the effect of KP (Pakistan) v Secretary of State for the Home Department  CSIH 38, by giving statutory powers for the Eba test to be imposed for appeals from the Upper Tribunal. An Act of Sederunt was swiftly passed on 19 August 2013, reinstating old RCS rule 41.57 and its stringent test, on which the Eba criteria were based.
On (2), on the rare occasions when tribunal decisions make it before the courts, a low intensity of review is applied. In R (Jones) v First Tier Tribunal (Social Entitlement Chamber)  UKSC 19;  2 AC 48, the Supreme Court found that courts should not be ready to classify as issues of law matters best left to determination by specialist tribunals (para 16). It also found that judicial restraint was required in relation to tribunal reasons, and it did not matter if “not every step in [the tribunal’s] reasoning is fully set out” (para 25). In a similar vein, the Court of Session has been happy to find it has no jurisdiction to consider matters which should properly have been raised before the Tribunal (Child Maintenance and Enforcement Commission Child Support Agency v Roy  CSIH 105; cf Cotter v Commissioners for HM Revenue & Customs  UKSC 69). But, on the plus side for disappointed applicants, within the tribunal system, it seems that a wide approach to error of law for internal appeals is to be adopted (Jones, paras 16 and 43-47).
Tribunals deal with many important issues. Much of the law applied by tribunals is complex. Legal representation before many tribunals is the exception rather than the rule. Courts are making it clear they will rarely intervene. No doubt this approach may lead to earlier finality in decision making and reduce legal expenditure, but it is a worrying trend for the rule of law. Anna Poole QC, Axiom Advocates. This paper is based on a talk given at the 21st Century Bar conference on 6 December 2013