Volume 15: Government and Public Administration
8. Standards and accountability
The lawful use of powers and judicial review
Judicial review
The Parliamentary Commissioner for Administration (the PCA or 'Ombudsman')

Judicial review

8.18 As described in Chapter 4, several witnesses told the Inquiry how the possibility of 'judicial review' by the Courts was a factor in the Government's consideration of how to address BSE. All decisions taken by Ministers and officials were potentially subject to judicial review.

8.19 In 1987, the Treasury Solicitor's Department and the Cabinet Office produced guidance for administrators, The Judge Over Your Shoulder, about the basic principles of judicial review. This explained that the Courts addressed the question: what power or discretion had been conferred and had it been exceeded? It warned that the Courts had 'developed a means of extended statutory interpretation which goes beyond the wording of the statute or subordinate legislation itself'. ¹ Hence, civil servants could not rely on the words of the statute or their own view of these alone; they also had to take into account the views already expressed by the Courts.

8.20 There were three bases for challenging a decision:

1. Illegality: the opportunities for getting the law wrong [were] potentially very wide indeed.' ² The Courts would look at the purpose and the spirit of the Act in determining whether discretion had been used lawfully. So a power to do something 'if the Secretary of State thinks fit' was less wide than it appeared. The decision-maker had to consider the right questions and not take into account irrelevant considerations.
2. Irrationality (or unreasonableness): ie, all powers and duties had to be exercised reasonably. ³ However, the Courts had indicated that they would not substitute their view of what was reasonable for the decision-maker's; they purported only to interfere when a decision was 'so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'.
3. Procedural impropriety: 'whether a person or body affected by a decision has been given a fair hearing'. The guidance noted that Courts were tending to describe this in more general terms as 'a duty to act fairly', and that this was 'difficult to define' and would 'depend upon the facts and circumstances of the case'. ⁴

8.21 The guide drew attention to the need to avoid 'fettering one's discretion'. This meant that although it was legitimate to have a policy about how to treat cases so as to be consistent, a Department could not close its mind 'to the circumstances of a particular case which might lead to the policy not being applied in that case'. ⁵ Another aspect was bias - even the appearance or suspicion of bias - such as a conflict of interest. ⁶ The duty to act fairly was further complicated by the doctrine of 'legitimate expectations', which were rights 'over and above rights which derive from express statutory provision'. For example, a party could have a legitimate expectation to be consulted, basing this on case law or on past custom and practice. ⁷

8.22 The guidance also mentioned what appeared to be a new development, citing a case where the Court would have been prepared to hold the Inland Revenue to an agreement not to use legal powers to pursue a claim for tax:

It seems now that the courts will be prepared in certain cases to look not merely to the way in which the decision is reached but to indicate what that decision should be . . .

It is not yet clear what precisely the courts mean by 'abuse of power' or how far they will extend its meaning. ⁸

8.23 Other points mentioned were the need to avoid delegating a decision inappropriately to another Department or to an outside body, ⁹ and the fact, mentioned above, that the Courts would not substitute their own views for those of the decision-maker:

. . . even if the courts do set aside the decision made, it is usually still for the decision-maker, rather than the courts, to make a fresh decision. It can happen that the same decision is reached second time round without taint of illegality. ¹⁰

8.24 This guidance was reissued in revised form in 1995, ¹¹ covering largely the same ground as the previous edition and describing what happened in a typical judicial review case. It discussed how powers should be exercised -ie, how to make good decisions - rather than describing how a decision might be challenged, and gave many more examples.

8.25 The actions of civil servants in all parts of the United Kingdom were potentially subject to judicial review in this way. The grounds on which judicial review might be sought were 'substantially the same' in Scotland as those in England and Wales, but the mechanics were 'significantly different' in Scotland. ¹² The grounds were also the same in Northern Ireland, with minor but not significant procedural differences.

The Parliamentary Commissioner for Administration (the PCA or 'Ombudsman')

8.26 The PCA was appointed by statute to investigate complaints by individuals who felt they had suffered injustice as a result of maladministration by a Government Department. The PCA was accountable to Parliament and complaints had to be routed to him or her through an MP, in acknowledgement of the interest of Parliament in the relationship between individual citizens and the executive.

8.27 The PCA did not interpret the law, but investigated whether a Department had acted correctly and fairly in carrying out its own interpretation of the law. Complaints about government policy, the investigation of crime, commercial matters or those involving international relations, did not fall within the PCA's remit.

8.28 Guidance produced in 1995 for civil servants explained what the PCA could investigate and how the investigation would be carried out. This took the positive approach of offering guidance on good administration, rather than cataloguing what constituted maladministration. As it said:

The lessons are often simple:

treat people fairly and consistently

when giving advice, make sure it is correct and that you keep a record of all significant telephone calls and other conversations

deal with things promptly

if something goes wrong, investigate objectively, and if it is clear that the fault lies with the public authority, apologise sincerely and offer appropriate redress

follow laid down procedures

if procedures do not work, get them changed!

when introducing new procedures or schemes plan carefully and, where practical, run pilot tests in advance to make sure systems work and staff are properly trained. ¹³

8.29 Well before this guidance was produced, staff at all levels, especially those working in areas dealing with the public, would have been familiar with what was expected as good administrative practice. Senior civil servants sought to impress on their staff the need to avoid generating complaints to the PCA. For example, Mr (now Sir) Richard Packer told the Inquiry that in 1993, as Permanent Secretary of MAFF, he had issued a note of guidance to staff ¹⁴ following a case referred to the Ombudsman in which 'action had fallen short in certain respects of the sort emphasised in this note'. ¹⁵