One consultation size does not fit all

The last few months have been busy for judicial review. The spotlight has been on reforms which local and central government are seeking to implement, with bedroom tax, closure of elderly persons’ homes, quality assurance schemes, back-to-work schemes and funding arrangements all considered in the past quarter.

There was also a resounding defeat of key elements of the government’s plans to reform judicial review in the House of Lords at the end of October. The three blows concerned the proposals contained in part 4 of the Criminal Justice and Courts Bill, which included a provision to deny judicial review where a defendant could show:

• the decision taken made no difference to a claimant’s situation (even if the decision itself was unlawful);

• a requirement that organisations who apply to the court to intervene in cases must meet their own costs and the costs occasioned by their intervention; and

• the requirement that applicants for judicial review disclose detailed information about their financial resources.

The matter has now gone back to the House of Commons, signalling it is not the end of the road for judicial review, nor the executive’s plans to change access to it.

Advocate assessment

Access to the courts features again in the determination of the Administrative Court in the case of R (on the application of Lumsdon and others) v Legal Services Board [2014] EWCA Civ, following the implementation of the Quality Assurance Scheme for Advocates (QASA).

The Court of Appeal dismissed the appeal, brought by claimants who sought to challenge the Scheme’s introduction, on the basis it would erode advocates’ independence.

Concern over advocacy quality in the criminal courts has led to the idea that judges should be able to assess advocates. In order for advocates to practise at a certain level of complexity, they would need to receive three consecutive favourable assessments from judges in front of whom they appear.

It was argued the LSB failed to properly consider whether QASA would give rise to a perception of the advocate’s dependency on the judge, corroding their impartiality to fight for their client fearlessly.

The Court of Appeal, however, considered that progression within the profession has always been reliant on judges. References were often acquired for applications for Queen’s Counsel or panel applications.

The Court of Appeal rebuffed these submissions on the basis that “the pool of referees for QC and other appointments is much wider than under QASA. We accept that these differences exist. But they are differences of degree. They do not accept the principle” (paragraph 29).

The course of the argument was about just that degree: “Thirdly, the principle of advocates’ independence is not absolute. There is no legal requirement for the advocate to be shielded
from any possible pressure to act otherwise
than independently in the client’s interest”
(paragraph 21).

It may be there is a significant difference in degree of perception of an advocate’s independence between when a reference or assessment furthers a career and when it decides whether or not one has a career at all. Nevertheless, the Court of Appeal found the LSB had considered whether there would be a perception that the advocate was not independent, and ultimately rejected it. There were further concerns raised as to the impact on the independence of the judiciary because of the exposure to claims for adverse assessments and the communications of the assessment to the advocate in the midst of proceedings, contrary to the administration of justice.

The LSB rejected this risk as very low and the Court of Appeal agreed, stating the potential risk of litigation from an advocate would not impact the conduct of proceedings, nor would assessments evoke discussions about the case at hand. There were further challenges concerning the availability of an appeal system and what the appropriate standard of review should have been applied when reviewing QASA. Both of those were unsuccessful. The appeal regime, though perhaps not ideal, was not sufficiently flawed to provide a sound basis for rejecting the scheme. Finally, the court considered the LSB’s decisions had been properly dealt by a Wednesbury standard of review.

Duty solicitor contracts

Reforms to the criminal justice system do not end here. The Administrative Court considered the provision of duty work contracts to solicitors in R (on application of London Criminal Courts Solicitors Association and Criminal Law Solicitors Association) v Lord Chancellor [2014] EWHC.

Currently, there are 1,600 firms who undertake duty solicitor work in police stations and magistrate’s courts in England and Wales. Following a consultation, the Lord Chancellor awarded 525 duty-provided work contracts under new arrangements for legal aid, some say to encourage certain criminal firms to merge and obtain efficiency by economy of size.

The claimants successfully challenged the original consultation procedure, which led to the provision of the contracts.

In coming to a conclusion on the appropriate number of contracts, the Ministry of Justice had not given interested parties and firms the opportunity to consider the findings of reports prepared by Otterburn Legal Consulting, the organisation who conducted research into the financial circumstances of criminal firms and the viability of the proposals.

On reaching his decision to uphold the judicial review, Justice Burnett said the Ministry of Justice’s failure to fully disclose the findings of the report was “so unfair as to amount to illegality”.

Fact-sensitive consultations

In a more commercial setting, the Court of Appeal considered the London Metal Exchange’s proposal for solving delays when storing metal in warehouses (R (on the application of United Company Rusal Plc) v London Metal Exchange [2014] EWCA).

It determined that the London Metal Exchange’s consultation on solutions for delays had not been unfair, and reiterated that the fairness of a consultation would be fact-sensitive. To that end, the considerations the applicant complained of related to matters that had been well-established within the knowledge of the industry, ie rent bans and competition issues.

As such, the applicant had not been
denied sufficient information to make these representations or move the London Metal Exchange to be explicit in its rejection of certain proposals for reasons clear to the industry.

The Supreme Court also considered the efficiency of consultations in R (on the application of M) v Haringey London Borough Council [2014] UKSC. The case concerned the power given to local authorities to construct their own council tax reduction schemes to decide whether people would be able to receive a reduction owing to their low income status. This would have substituted the previously proposed council
tax benefit.

The issue that arose for Haringey Council was that the monies it received from the central government for council tax relief were to be reduced by
10 per cent.

However, with a third of the borough in receipt
of council tax benefit, the net effect would have meant the shortfall would be covered by Haringey. Haringey’s consultation document, sent to households within the area, did not contain references to other options for meeting the shortfall created by the reduction of monies received, other than reducing the relief from council tax.

The consultation exercise was challenged by two single mothers in the area who were in receipt of full council tax benefit (or relief). Although unsuccessful in the lower courts, the applicants successfully challenged the consultation. The Supreme Court found that the statutory regime required the council to consult the residents and beneficiaries of council tax relief to ensure there was public participation in the decision-making process.

For a meaningful consultation to take place where the general public may not be as familiar with the wider political and economic considerations, the consultees should have been provided with a summary of alternatives for them to consider
so they could offer intelligent thought-through responses. When read against the decision in London Metal Exchange, the message is clear: one consultation size does not fit all.

It is interesting that this was the quarter of consultation challenges, considering we witnessed the Scottish independence referendum welcome a whopping 84 per cent of voter turnout, the highest figure since universal suffrage was granted. Both of these developments indicate the ways in which society, whether with a commercial or public interest, can participate in the discourse of the policy decision-making being conducted around them.

It has been nigh on impossible in this judicial review update to cover all of the interesting judicial review cases which have taken place over the past quarter. Hopefully, any number of wide-ranging challenges will continue to keep us engaged over the next few months, and will present a helpful reminder that the restrictions to judicial review may also amount to restraints in public confidence. SJ

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