IN R. (Moseley) v Haringey LBC [2014] 1 W.L.R. 3947, the Supreme Court unanimously upheld a judicial review challenge to the legality of a public consultation carried out by the defendant pursuant to a statutory duty to consult on proposed changes to Council Tax. However, more significant than the outcome is the marked divergence in the reasoning of different Justices. This divergence reflects wider tensions within the field of common law judicial review which have emerged over the last year. In particular, some judges have shown renewed enthusiasm for analysing review cases in terms of “rights”, which may foreshadow a major shift in the nature of review. Common law judicial review is seemingly approaching a crossroads. Which route is taken will have significant implications for the future of the field.
There are at least two pathways for legal development. Down one path is a conception of review which emerged following the unification of review procedure in the late 1970s. This conception holds that review's principal concern is to ensure public power is exercised properly, according to precepts of good administration, and for the public purposes for which power was conferred, all for the ultimate good of the public at large. This conception has been dominant. During the 1990s and early 2000s, there was some attempt to re-orientate review towards protection of individual rights, so as to ensure compliance with the ECHR. However, the Human Rights Act 1998 stalled this trend; it was no longer necessary to stretch the common law to protect human rights. This did not mean the common law stood still. It developed in dynamic ways and consistently with its public interest origins, updated according to contemporary ideas of open and democratic governance, as evidenced by developments in requirements to give reasons, notice, publish policies, and consult.
Down another path is a conception of review which has individual rights and interests at its heart. This model is both old and new. It was once the case, for example, that standing on review often depended on whether one's personal rights had been adversely affected, and requirements of natural justice only arose in such circumstances. This “private law” model eventually gave way to the “public interest” model discussed above; for example, standing rules broadened so that even those whose rights and interests are not affected directly by administrative action can mount review challenges, on the basis that we all share a stake in ensuring proper exercise of power for the common good. However, despite a paucity of rights-based developments at common law post-HRA, the courts have, over the previous year, shown renewed interest in an individualist conception of review, drawing heavily on the HRA for inspiration (e.g. Kennedy v Charity Commission [2014] 2 W.L.R. 808; R. (Osborn) v Parole Board [2015] A.C. 1115).
It is against this backdrop that the divergent reasoning in Moseley falls to be understood.
The case concerned the law of consultation, a burgeoning area of common law development. The common law may impose a duty to consult in certain situations, such as where there is an established administrative practice or a promise of consultation. Where a public body on its own motion chooses to conduct a consultation or is under a statutory duty to consult, as well as where the duty arises at common law, the common law imposes minimum legal requirements including that sufficient information be given to consultees, the consultation take place when proposals are at a formative stage, consultees are afforded sufficient time to respond, and the authority conscientiously consider responses. The law of consultation, as developed by lower courts, is a branch of common law procedural fairness, so that the ultimate legal question in any case is what fairness demands on the facts.
The Court unanimously held the Council's statutory consultation unlawful as the consultation document provided insufficient information on plausible alternatives to the Council's favoured policy. Despite concurring in the outcome, the two Justices who gave substantial judgments adopted different reasoning, reflecting divergent conceptions of procedural fairness, and of review.
Lord Reed's judgment shows the individualist conception resurgent. Consistently with his judgment in Osborn, which espoused a largely dignitarian conception of procedural fairness inspired by human rights thinking, in Moseley, his Lordship opined that procedural fairness is concerned with how individuals are treated where their legally protected interests are adversely affected. According to this individualist conception, a common law duty to act fairly may only arise where public power has a particularized impact on specific individuals. Lord Reed considered the consultation in Moseley was not subject to the common law's minimum legal requirements, as it concerned how the Council should exercise its general revenue-raising powers. This being a matter of general finance policy, rather than a case of direct interference with personal legal rights, the common law duty of fairness did not arise. Contrary to the way lower courts have developed the law of consultation, Lord Reed considered that any legal requirements governing the Council's statutory duty to consult were to be sourced in the parent statute, not the common law. As it so happened, facilitating public participation was the underlying purpose of the statutory provisions in Moseley, by reference to which minimum legal requirements could be implied through statutory construction. The corollary is that facilitating public participation in policy formulation is not a concern of common law fairness. It has a far narrower focus on affording procedural protection to individuals’ special interests.
For Lord Wilson, procedural fairness has broader foundations. His Lordship, while acknowledging that procedural fairness guards against individual feelings of injustice, emphasized wider public interests served by the duty including good administration – fairness ensures better decision-making – and “the democratic principle at the heart of our society”. In contrast to Lord Reed, Lord Wilson considered that the common law duty may arise outside of cases of individualized impact because its concerns transcend individual rights protection, encompassing public goals of meaningful citizen participation in public life and good decision-making. Consonantly with this wider conception, Lord Wilson found that, despite this not being a case of individualized impact, a common law duty of fairness arose so that the Council was bound by the common law's minimum legal requirements for conduct of a fair consultation.
In Moseley, this split did not affect the outcome. But it could in future. The general effect of an individualist conception would be to frustrate development of the law of consultation, which has so far been developed by lower court judges more or less consonantly with the normative imperatives identified by Lord Wilson. For example, it has been axiomatic that the common law's minimum fairness requirements govern a consultation undertaken by government on its own motion and outside any statutory duty to consult, those requirements enforcing principles of good administration and facilitating meaningful participation. On an individualist conception, such a consultation may not be subject to these requirements. There is no statute from which to imply criteria. If the consultation concerns generalized policy proposals, then procedural fairness would not arise because no individual rights are implicated. How procedural fairness is conceptualized also affects when a common law duty to consult arises. For example, where government has made a general statement that it will consult on high-level policy questions of public importance, such as the future of nuclear energy, the courts have held it to that promise: R. (Greenpeace) v SOS Trade and Industry [2007] EWHC 311. But, given no individual interests are directly affected and the promise was not to any one person, within an individualist paradigm, there may be no duty to consult.
Why have judges suddenly shown renewed enthusiasm for individualist conceptions of review? Possible reasons include a fear, given ministerial pronouncements, that the HRA may be repealed, leaving rights vulnerable, so that the common law must step in; a feeling that common law review is being “outshone” by the HRA so that its priority requires reassertion; and a form of institutional competition which sees the judiciary reluctant to accept that the home-grown common law provides weaker individual protections than Convention rights. These concerns have been acute in cases where HRA and common law claims are pleaded concurrently, mostly in the field of substantive review. However, as Moseley shows, once adopted, a rights mindset may come to shape thinking outside such cases, ironically retarding development of dynamic common law fields and reducing the scope of common law protections.
A turn to rights, especially if motivated by the above concerns, is problematic. The HRA may endure, or be replaced by another rights-based instrument. The common law's priority does not require reassertion. There is no shortage of review applications on common law grounds and the field continues to develop in dynamic ways which reflect traditional, home-grown concerns for good administration and public goals. A turn to rights would not reassert the common law's priority, but render it a mere replica of human rights law, a duplication, and thus largely otiose. Those who favour “synthesis” of the two fields fail to appreciate that each field performs distinctly valuable and complementary functions. Procedural fairness, through the subfield of consultation, has promoted important societal interests, such as meaningful citizen participation in public life, and in doing so performed valuable functions distinct from those performed by individualist fields. To return common law review to a narrow individualist conception would mean that much of value is lost, with no apparent gain in rights protection, given rights are protected strongly by dedicated fields. Some paths are best left untrodden.
