Judicial Review - Appropriate Facts - why no action ?

[kes]

Apologies for the length Admin please delete if necessary.

What is a JReview ?

A judicial review may occur when a person or organisation feels that a public sector “body” (e.g. local council, government department etc) has taken a decision without following the correct procedure or has overstepped the boundaries of their power (in other words, acted ultra vires) or has violated the principles in the Human Rights Act – this final cause of judicial review is one of the reasons why some politicians have accused the judiciary of becoming more politicised. However, very rarely do these judicial review cases examine primary legislation (because of the existence of parliamentary sovereignty in the UK) or the actions of MPs/Ministers.
What remedies are available.

• Injunctions – the court issues an order to the public sector body in question regarding their behaviour
• Quashing orders – the original decision is completely overturned, usually because of the principle of ultra vires (a variation of a quashing order is a prohibiting order – both aim to overturn or prevent incorrect action)
• Mandatory orders – unlike quashing order or a prohibiting order, a mandatory order requires a public sector body to do something. These are often used in cases relating to human rights, for example requiring government buildings to have disabled acces

Who may be subject to J Review

Judicial review is the legal process of having a court rule on the lawfulness of a legislative or executive decision, act or omission. Although it is most commonly thought of as a way to challenge government decisions and legislation, it is much more wide-ranging and encompasses the unlawful decisions of all bodies that exercise a public law function, including:

• The police, prison and immigration authorities

The specific case I draw comparison with in a public body using ‘Local Guidance rather than available National Guidance.
http://www.bailii.org/ew/cases/EWHC/Admin/2012/2970.html
The specific in this case.

1. The Department for Transport has produced guidance on the use of tactile paving to assist the visually impaired. The national guidance was developed in conjunction with and with the endorsement of Guide Dogs for the Blind and the RNIB. The guidance is applicable nationwide.
2. On 15 July 2010, Newham adopted guidance for use in the design and specification of tactile paving in its area. The Newham guidance does not follow the national guidance.

The test whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and the duty must be performed with "vigour and an open mind": R (Domb) v Hammersmith and Fulham London Borough Council [2009] EWCA Civ 941, [2009] LGR 843, at [52]; "rigour and an open mind" Brown at [92].
99. General awareness of the duty does not amount to the necessary due regard, being a "substantial rigorous and open-minded approach"; R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin); (2010) 13 CCLR 72 at [58], [59] and [63].
If a risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution; Kaur and others at [44], R (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin) at [35] (sub-para 8): Domb at [62].
QC for the Applicant for J Review
The specifics which run parallel to the ‘Medical Issue’

1. In short, Mr Wolfe QC contended that no reasons, let alone adequate reasons, had been given by Newham for the substantial departures from the national guidance, and the failure to provide any, or any good, justification for the departure was particularly indefensible in circumstances where the guidance in question was specifically tailor-made to promote the interests of a large and important category of disabled people.

1. As to the principal contest between the parties, namely, the status and effect of non-statutory guidance, I recognise some force in Mr O'Toole's submission that the court should be circumspect and careful so as to avoid converting what is a non-binding guidance into, in effect, mandatory rules. To do so would tend to subvert the intention of the guidance and would risk undermining the autonomy of the primary decision maker upon whom Parliament has conferred ultimate responsibility for discharging the function in question. However, this does seem to me to be yet another area which bears out Lord Steyn's famous dictum that "in law, context is everything". In my view, the weight that should be given to particular guidance depends upon the specific context in which the guidance has been produced. In particular (without intending to create an exhaustive list) I believe that it is necessary to give due regard to the authorship of the guidance, the quality and intensity of the work done in the production of the guidance, the extent to which the (possibly competing) interests of those who are likely to be affected by the guidance have been recognised and weighed, the importance of any more general public policy that the guidance has sought to promote, and the express terms of the guidance itself. In my view, it would be unwise for the court to descend into the intrinsic merits of the guidance, unless it was seriously contended that it was unlawful or very obviously defective.
2. In this case the relevant national guidance was produced at a high level and involved those with considerable experience and expertise in the applicable area. Considerable research was undertaken by skilled workers before the guidance was finalised. Those producing the guidance specifically recognised that other groups would be affected. For example, it was acknowledged that those with physical conditions could well suffer pain and discomfort from walking on tactile paving, but the risk to life and limb of the visually impaired was considered sufficient to justify the measures set out in the guidance. The guidance was furthermore issued against the background of the equality duty, by which the needs of the disabled, in casu, the visually impaired had to be given due regard. Finally, as shown by the relevant cited passages from the national guidance, the measures are set out in imperative terms, largely because, as Mr Wolfe QC emphasised, there is in the present context a compelling longer term need to achieve an acceptable level of uniformity and consistency throughout all localities.

Judgement

1. Given these factors, I conclude that Newham was required to follow the national guidance unless it had good reasons to depart from it. I find no such good reasons. For example, Newham has decided not to have tactile paving at new installations affecting uncontrolled crossings. Apparently, Newham believes that tactile paving is not necessary at uncontrolled crossings, but it has not addressed the grounds upon which the national guidance concluded that such paving was necessary, reaching that conclusion after specifically recognising and weighing the interests of other groups of pedestrians. It was not suggested that there were any special circumstances in Newham that made the national guidance inappropriate. Again, Newham believes that grey is an appropriate colour at controlled crossings, without addressing the reasoned basis upon which the national guidance concluded that the colour red should be used at such crossings. Newham argued that the introduction of red would be inconsistent and confusing. The national guidance was introduced against a background in which certain local authorities may not have been using the recommended red colouring. It may also well be that the national guidance is not comprehensive and that it is not suitable for all locations. However, that does not appear to me to be a good reason for departing from the national guidance for locations that are within the guidance and that are otherwise suitable for its adoption. If there are special circumstances justifying departure, that is a different matter and local authorities, as the guidance itself makes plain, remain free to exercise their best judgment to develop a solution that takes into account the specifics of the location and the interests of those affected by the proposed action. Lastly, I am not impressed by the argument that other London boroughs are also departing substantially from the national guidance. The policies of the boroughs in question were not before the court, and I do not, therefore, know the extent to which other boroughs may be departing from the national guidance or their possible reasons for doing so. I can only deal with the legal merits of the claim in this case.

1. (even if in the shorter term different colours might result), and that objective would be likely to be defeated if certain local authorities, confronting a new installation, simply adhered to their current preference. The fact that Newham consulted on its proposals, and formed its own view on how to balance the interests of other affected groups against the needs of the visually impaired (an exercise, of course, specifically embraced within the national guidance) does not, in my view, provide a good reason for departing from the guidance. The challenge here is not that Newham has adopted a manifestly unreasonable policy; the claim is that an authoritative and tailor-made national guidance has been produced and Newham has in essence maintained the status quo in the conviction that its existing guide is an adequate response to the problem.
2. It may also well be that the national guidance is not comprehensive and that it is not suitable for all locations. However, that does not appear to me to be a good reason for departing from the national guidance for locations that are within the guidance and that are otherwise suitable for its adoption. If there are special circumstances justifying departure, that is a different matter and local authorities, as the guidance itself makes plain, remain free to exercise their best judgment to develop a solution that takes into account the specifics of the location and the interests of those affected by the proposed action. Lastly, I am not impressed by the argument that other London boroughs are also departing substantially from the national guidance. The policies of the boroughs in question were not before the court, and I do not, therefore, know the extent to which other boroughs may be departing from the national guidance or their possible reasons for doing so. I can only deal with the legal merits of the claim in this case.

Costs
Costs protection may be obtained via legal aid or protective costs orders. For legal
aid, note risk of set-off (R (Burkett) v Hammersmith and Fulham BC [2004] EWCA
Civ 1342).
• No costs risk pre-issue of claim. Claimants can test water with pre-action
correspondence.
• For claimants, otherwise, general rule is that costs will follow event.

The Corner House Guidance/Rules ([2005] 1 WLR 2600):
• The issues are of general public importance.
• The public interest requires that those issues should be resolved.
• The Claimant has no private interest in the outcome of the case. Now a
relevant consideration only: Austin v MA (SW) Ltd[2014] EWCA Civ 1012.
• Having regard to the financial resources of the parties and the amount of
costs likely to be involved, it is fair and just to make the order.
• If the order is not made, the Claimant will probably discontinue the
proceedings, and will be acting reasonably in so doing.
– If those acting for the Claimant are doing so pro bono this will be likely to
enhance the merits of the PCO application.
– It is for the Court, in its discretion, to decide whether it is fair and just to make
the order in light of the above considerations [74].

Pre-action protocol
The first step in the JR procedure is to write a formal letter to the proposed defendant setting out your proposed claim and what you are seeking. This is known as a pre-action protocol (or PAP) letter. Normally a response is expected within 14 days. However, in cases challenging a grant of planning permission, the 6 week time limit to issue a claim does not leave much time for pre-action correspondence, although you must try to complete it if possible.

Permission
If the response to the PAP is unsatisfactory you may lodge a JR claim in the Administrative Court (which is a branch of the High Court handling, among other things, JR cases). The first stage is to apply for "permission" to apply for JR. The test for obtaining permission to proceed is that you have an arguable case. The court will weed out cases where it cannot see any arguable error of law. Another test at the permission stage that can be important, but is usually not a problem, is that you have "standing" - in effect, a genuine interest in bringing the case, rather than being a mere busybody.

1 Have BASC missed the boat,
2 is the JR expensive,
answers 1. Probably yes and 2 probably No - as you can see from the detail above.

Perhaps you can see why I still think a judicial review would have been effective and may yet be
Considering advice is given on the merits of the case brought, by the Appeal Court, it doesn’t have to be expensive.
The case I use as a parallel was brought by an individual who was awarded full costs.
Kes

 

[royr]

Good Afternoon Kes.

I applaud your endeavors.

At the forthcoming 2018 KWCA AGM, I shall inquire about JR and see what action can be undertaken?

I’m sure this is common knowledge, at the KWCA 2017 AGM, the membership voted to leave BASC, after 60 years of affiliation.

 

[kes]

Royr - thank you for the comment - as you will know I just want someone in a position of trust to ask a few questions - I am by no means a legal expert but it seems to me the opportunity exists to bring the police to heel over 'local guidance' bearing in mind the history and derivation of 'National Home Office firearms Guidance' . Advice doesnt get much more 'expert' than that and yet we see Kent et al ignoring it.