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Giving the green light to (minor) unlawfulness

Some big news for public bodies: it’s now alright to act unlawfully. Don’t get too excited though, there’s a catch: it’s only alright to act a little bit unlawfully.  Sounds silly? I agree. But depressingly this is soon likely to be law as a result of the Criminal Justice and Courts Bill currently working its way through the House of Commons.

Clause 50 of the Bill states that the High Court and Upper Tribunal must not grant permission for judicial review, and must not grant any relief, if:

“...it appears to the court to be highly likely that the outcome for the
applicant would not have been substantially different if the conduct
complained of had not occurred.”

So from now on, a public body will not be amenable to judicial review, even if it has clearly and indisputably acted unlawfully, as long as it is highly likely that its unlawful conduct did not cause the claimant’s situation to be “substantially different”.

Unhelpfully the Bill provides no definition of “substantially different”. Is it to be measured in financial terms? Emotional and psychological terms? Does it mean that the claimant’s legal situation would have been substantially different? Is it to be assessed objectively or subjectively? Public lawyers may want to go ahead and order that new kitchen extension or book that Christmas skiing trip to Val d’Isere – we can safely assume that there will be no shortage of litigation in the future as to what this term means.

The Administrative Court and the Upper Tribunal already have a discretion as to whether or not to grant permission for a judicial review to be brought. If a claim appears purely academic or it appears pointless or vexatious, the claim can be filtered out at an early stage by the refusal of permission. If the Court or Tribunal feel that a claim was pointless or a waste of the court’s time, this can be reflected in the relief the Court or Tribunal grants, as well as in any costs order. 

The real danger of the new Bill is that sometimes a case involving a seemingly minor outcome can raise serious legal issues. A case can deserve to be heard even if the practical outcome for the parties involved is modest. Countless examples abound, but I will restrict myself to just one: Congreve v Home Office [1976] Q.B. 629. In that case the price of the TV Licence was increased by £6.00. The claimant, along with 25,000 other people, rushed to renew their TV Licence just before the date when the price increase came into effect. The Home Secretary was displeased at the Treasury being deprived of this extra money, and demanded that the bargain-hunters either pay the extra £6.00 or have their TV Licences cancelled.

The Court of Appeal held that the Home Secretary was acting unlawfully by threatening to cancel the TV Licences of people if they refused to pay an extra £6.00 which they were not legally required to pay. The Court held that the Home Secretary’s power to cancel a TV Licence cannot properly be used to hold people to ransom if they renew their Licence just before a price increase takes effect.

How would Mr Congreve and the other 25,000 television viewers have fared under the Government’s new Bill? Being better or worse off by the princely sum of £6.00 can hardly be said to be “substantially different”. Yet the issue at stake in Congreve was of fundamental importance: what right the State has to use its punitive powers to demand money from the individual.  

The Bill states that if a claimant cannot satisfy the “substantially different” test, the court must refuse permission and must refuse relief. The Bill leaves no discretion for the court regardless of how important a legal or constitutional issue may be at stake. Under the new Bill, cases like Congreve will never get through the door of the court.

Clause 50 of the Bill was debated by the House of Commons in committee on 27 March 2014. To say that tempers flared is the art of understatement.

Proponents of the Bill call it a necessary protection against wasteful use of court time for making political points. Opponents call it the erosion of a fundamental right to have the sovereign powers of the state brought into question in an impartial tribunal.

There can be few areas of law where there is as much at stake as in judicial review. It is what defends the citizen from the power of the state. The restrictions which the new Bill proposes are not just liable to generate uncertainty about their meaning; they are liable to deprive access to the courts in cases of fundamental legal importance, even if their practical impact may seem modest.