Public law roundup: Openness in public affairs, policies as to discretionary powers, and parliamentary scrutiny

There has, over the years, been widespread dissatisfaction as to transparency in the public sector, aligned with discontent with the Freedom of Information Act and the lack of compliance with the duty of candour in judicial review. In its manifesto and election campaign, the now Labour Government promised to restore high ethical integrity and standards of public officials. As part of this offering, the manifesto made an explicit pledge to introduce the so-called ‘Hillsborough Law’. 

The Prime Minister has recently confirmed that this law will be introduced in Parliament before next April. The idea of the legislation is to ensure co-operation of public officials and bodies with public facing investigations under threat of facing criminal sanction. The new law will be supported by a new wider code of ethics for public bodies and, together, these are designed to address a wider culture of defensiveness seen in investigations, such as the Infected Blood Scandal, Windrush, and the Hillsborough Disaster itself. In relation to the latter, this finding has been corroborated by the report of Bishop James Jones (1 November 2017).

The last attempt to introduce this change was through a Private Member’s Bill in 2022, and the current Government has not published an updated version yet. The Public Advocate and Accountability Bill, as it is formally titled, currently proposes to introduce a general duty on public authorities to act “in the public interest” and “with transparency, candour and frankness”.  It then creates a specific duty whereby public officials should “assist court proceedings, official inquiries and investigations”. 

For the purposes of the Bill, a “Court proceeding” is defined as “all proceedings in criminal, civil or coronial courts, or tribunals set up pursuant to statute, with jurisdiction anywhere in the United Kingdom, or international courts or tribunals to which the United Kingdom government has given effect by statute or treaty.” An “inquiry” includes statutory or ad hoc, non-statutory inquiries.

It is certainly interesting to see that the Bill is currently set to apply to investigative procedures which are both adversarial and inquisitorial in nature. The Joint Committee on Human Rights (JCHR) produced a report (15 May 2024) which considered the introduction of a “Hillsborough Law”. It noted that, currently, a duty of candour applies to processes which are inquisitorial, such as inquests, inquiries, or which involve the scrutiny of a public body’s decision by the courts, such as judicial review proceedings. As found by the JCHR and Bishop James Jones, defensiveness is inappropriate in this type of proceeding. From this, a duty of candour, which is a very high duty to assist the court by being open and transparent, naturally follows. However, the detail of how this duty of candour will apply to adversarial proceedings is currently unclear. It will be interesting to see how this new duty of candour will interact with the idea that a party to adversarial proceedings is entitled to robustly defend its position.

The report of Phase 2 of the Grenfell Inquiry has been released (4 September 2024). It does not pull its punches in laying blame at the feet of private sector companies, public authorities, and members of government. It contains a number of troubling findings, including that “Government was given plenty of warning as far back as 1991 of the risks of combustible cladding panels and insulation”, in addition to reporting “deliberate and sustained strategies to… mislead the market [about safety of products]”, a “cavalier attitude to regulations affecting fire safety”, “ignoring, delaying or disregarding risk to life”, and a “pattern of concealment”. Given the high number of sizeable recommendations made, the Inquiry report will have a significant impact on the construction industry and law surrounding it; however, this piece will consider its public law position.

It is not currently known which recommendations, if any, the Government will adopt. The Government has no legal obligation to accept any of the recommendations. This may lead one to think that the recommendations of an Inquiry are susceptible to leaving issues highlighted, but not dealt with. After the Royal Liverpool Children’s Inquiry Report, only 4 of the 67 recommendations were taken on by the Government. The potential ineffectiveness of an Inquiry’s report present a high risk. This is clearly problematic in cases such as this, where a report’s recommendations are so numerous, wide-ranging and so damming.  

It is therefore logical that one of the Grenfell Inquiry Report’s recommendations was that it “be made a legal requirement for the Government to maintain a publicly accessible record of recommendation made by select committees, coroners and public inquiries together with a description of the steps taken in response”, including the reasons why rejected recommendations have not been accepted. Of course, this recommendation did not go as far as to suggest the creation of a duty on Government to accept recommendations. It would be uncontroversial that such a duty would inappropriately inflate the powers of a public inquiry. What this recommendation would do, however, would be to increase the transparency of government decisions following an inquiry, and thus the accountability of those decisions. Taking up this recommendation would also fall in line with the Government’s position on increasing accountability through a new duty of candour, under a “Hillsborough Law”. For now, it seems that the majority of the focus of the Hillsborough Law would be compliance with ongoing public investigations, rather than accountability to the recommendations or outcomes of those same investigations. Yet, it may be open to the Government to extend the current proposals in this way, either in the Bill itself, or in the wider code of ethics mentioned above.

In October, the Administrative Court published the Judicial Review Guide for 2024. This year’s edition of the Guide contained an emphasis on a current lack of compliance with procedure, such as wrongly filing out an application as urgent. It also included three larger changes, set out below.

One significant change discussed in the Guide is the introduction of e-filing. Via the CE-File system, parties are now able to issue and file documents, pay court fees, and review and track cases online. This system has already been in use in a number of other courts. The electronic system went live for the Administrative Court at the start of October, and is currently in a transition period. During the transition period, the use of the electronic system is optional for professional users, but after the transition it will only be optional for litigants in person. The Guide also makes clear that the new system should not be used for urgent cases. These should continue to be lodged using the procedure set out at section 17 of the Guide.

Further amendments made to the Guide include clarifications made surrounding the duty of candour. This is a duty imposed on public bodies under which they should be frank in assisting the court and, in practice, this usually amounts to a requirement to disclose a variety of evidence. The 2023 Guide clarified that this duty applies to all stages of a judicial review claim, but the degree of obligation on the public body is lower before and at the permission stage than it is after that point. The 2024 Guide seeks to further address the question of whether the duty requires a party to disclose particular documents or whether it is merely required to summarise their contents. The Guide stipulates that it is good practice to disclose a document which is “significant to the decision under challenge”. It is evident that the Administrative Court, in framing this piece of guidance, is torn between attempting to effectively clarify the scope of the duty without making the duty over-specific and akin to the standard disclosure rules. The duty of candour imposes a general duty, whereas standard disclosure rules are more specific. It is well established that the standard rules usually do not apply in judicial review proceedings because the process of disclosure should have been covered by the duty of candour which, in theory, constitutes a higher threshold. However, the risk is that the vagueness of the wording, “significant to the decision”, could actually result in less disclosure, not more.

Northumbrian Water Ltd (NWL) sought judicial review of Ofwat’s decision to only partially relieve it from a reduction in the prices it could charge due to weather-related supply interruptions. The regulations set by Ofwat, and under which NWL operate, set out a formula by which the performance of NWL can be calculated. This is then used to determine the amount that the appellant may charge its customers. The guidance also has a section on exclusions, which explains that NWL may make a representation to Ofwat for an exception to this performance measure to be granted on the basis of a civil emergency (as defined in the Civil Contingencies Act 2004). After Storm Arwen impacted NWL’s supply in November 2021, NWL sought to rely on this exclusion to the measurement of its performance, but Ofwat only partially relieved it from a mandatory reduction in the prices that NWL was allowed to charge its customers.

NWL brought its challenge on two grounds. The first challenge was grounded in the construction of the wording of the regulations. Here, the Court of Appeal held that the wording of the regulations were such that Ofwat were only required to consider NWL’s submission that this constitutes an exclusion, rather than being under an obligation to grant it. The second challenge was based in the common law duty of prescription. This is not a well-established duty, but is taken to mean that where a public body has a discretionary power, it must, if under the duty, publish a policy on how it will administer that power. NWL argued that these cases establish a duty of prescription, under which Ofwat must adopt a policy governing the exercise of its discretion in relation to water supply interruptions arising out of a civil emergency. Further, NWL argued that Ofwat had breached this duty because it failed to adopt such a policy. 

The potential establishment of the duty has largely grown from two cases, R (ZLL) v Secretary of State for Housing, Communities and Local Government [2022] EWHC 85 (Admin), [2022] 1 WLUK 140 and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 1 AC 245. The Court of Appeal held that there was no general duty of prescription on public bodies. R (ZLL) v Secretary of State for Housing, Communities and Local Government [2022] EWHC 85 (Admin), [2022] 1 WLUK 140 stood for the idea that a public body may not adopt an “unpublished position in non-conformity with published government policy”. R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 1 AC 245 similarly held that a policy, if unpublished, must not be inconsistent with an already established government policy, and further that a public authority must publish policies which are in place but are currently not published. What neither of these cases stood for, the Court held, was that there is a duty to adopt a policy wherever a discretion is conferred upon a public body. Of course, where there is statutory or regulatory discretion, it may well be good practice for a public body to publish guidance setting out criteria for exercising discretionary powers. 

Finding a general duty of prescription would have been a monumental finding by the Court of Appeal. If found, public bodies would have to review all discretionary powers afforded to them and publish policies on how they would be used. Though not mentioned in the judgment, it would be hard to argue that such an overhaul would be in the public interest. Further, it would have certainly conflicted with the reported lack of funding to public bodies over the coming year.

The Public Order Act 1986 permits the police to intervene in a public procession or assembly to prevent “serious disruption to the life of the community”. In 2023, the Government tried to amend the Public Order Bill going through Parliament to change the definition of “serious disruption” to be that which is “more than minor”, but the proposed amendments were unsuccessful. However, the Police, Crime, Sentencing and Courts Act 2022, passed before the Public Order Bill was laid before Parliament, had given the Secretary of State the power to amend the definition of “serious disruption” by secondary legislation. These types of powers are sometimes known as ‘Henry VIII powers’. Instead of making further attempts to make the change by primary legislation, the Government exercised the Henry VIII power to introduce the “more than minor” definition by secondary legislation.

The claimant challenged that amendment on the grounds that: (1) the regulations were outside the scope of the Henry VIII power as granted by the 2022 Act; (2) the secondary legislation subverts Parliamentary sovereignty as the Government is amending primary legislation; and (3) the secondary legislation is unlawful as there was not a procedurally fair consultation process concerning this amendment. The court unsurprisingly construed “more than minor” as a lower standard than “serious”. The secondary legislation was therefore ultra vires as this was a changing of the standard, rather than a clarification. This outcome was not impacted by the Secretary of State’s argument that the affirmative resolution procedure by which the secondary legislation was passed entailed a higher level of scrutiny than a routine primary legislation amendment. The court emphasised that it would be inappropriate for it to perform an evaluation of the level of scrutiny actually present. Secondly, the court found that the use of the Henry VIII power cannot subvert sovereignty, as it was Parliament that had created the power in the first instance. Thirdly, a consultation process had been undertaken voluntarily, but it was nonetheless not a procedurally fair one. The Court gave a useful explanation of the duty to consult, and in this case, as it was voluntarily exercised, the evaluation of fairness should be fact-specific, with the Gunning criteria serving as a guide only (R v Brent London Borough Council ex p Gunning [1985] 4 WLUK 200). A variety of factors were considered by the courts, including that those adversely affected were readily identifiable for consultation, conducting a broader consultation would not have been onerous, fundamental common law rights were engaged, and the presence of parliamentary scrutiny was not an appropriate answer to a lack of a fair consultation.

This case provides an interesting insight into the separation of powers doctrine under the UK constitution. In its finding that it would be inappropriate to evaluate the level of scrutiny, the courts rightly show that holding the Government accountable from a policy perspective is within the remit of Parliament only. For the court, it is a question of form, not of substance, whether Parliament is adequately provided with that opportunity. Separation of powers further features in the court’s finding that a Henry VIII power does not subvert sovereignty of Parliament. This illustrates that Parliament, despite being sovereign, may bind itself by delegating its functions, and without offending the separation of powers. However, the court did note that this is exceptional, and so the legislation giving rise to the Henry VIII power should be very strictly construed. It is for this reason that the court heavily emphasised that this Henry VIII power could only serve to clarify, not amend, the definition of “serious disruption”.