What difference does ‘no substantial difference’ make?
Alastair Wallace considers materiality in judicial review, comparing the new no substantial difference test with the old law. He examines how the new test has been applied in practice and highlights a number of concerns.
The new test brings forward the consideration of materiality and lowers the threshold for refusing relief: the old test of inevitability is replaced by one of probability.
In his infamous Daily Mail article of 6 September 2013 (‘The judicial review system is not a promotional tool for countless left-wing campaigners’), Chris Grayling, then Lord Chancellor, stated his intention to reform judicial review to deal with what he described in Judicial review – proposals for further reform (Cm 8703, Ministry of Justice (MoJ), 6 September 2013) as ‘time and money wasted in dealing with unmeritorious cases which may be brought simply to generate publicity or to delay implementation of a decision that was properly made’ (page 3).
The government’s reforms, however, did not simply deal with objectively unmeritorious claims, but also successful ones. The government focused on judicial reviews that turned on what it described as ‘minor technicalities’ (Judicial review – proposals for further reform: the government response, MoJ, February 2014, page 3). The issue was put this way:
The government considers that judicial review can too often be used to delay perfectly reasonable decisions or actions. Often this will be part of a campaign or other public relations activity and the judicial review will be founded on a procedural defect rather than a substantive illegality. The government is considering strengthening the law and practice to enable the courts to deal more swiftly with applications where the alleged flaw complained of would have made ‘no difference’ (Judicial review – proposals for further reform, page 28, para 99).
Two changes were proposed:
•the consideration of the impact of a judicial review challenge should be considered earlier in the procedure (at the permission stage); and
•the threshold for granting relief should be raised.
These have since been implemented by the Criminal Justice and Courts Act 2015 (CJCA). In respect of threshold, the Act (s84(1)–(3)) amends the Senior Courts Act 1981 (SCA) to introduce a new statutory test: the no substantial difference (NSD) test.
Despite the many and detailed submissions that were made to the government opposing the introduction of this change, there has been some scepticism on the part of practitioners and judges as to whether the NSD test makes any real change to previous practice.
1See, for example, R (Irving) v Mid-Sussex District Council [2016] EWHC 1529 (Admin) at para 71, where Gilbart J seemed to suggest that either the NSD test or the test in Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25 may be applied. This appears to have been misplaced.
Discretionary relief
Judicial review is a discretionary remedy. In circumstances of delay, relief may be refused on the basis of, among other things, substantial hardship to any person and detriment to good administration. Relief may also be refused on the grounds of materiality.
Prior to the introduction of the CJCA, the position was (absent any other considerations) that the court would grant relief in respect of an unlawful decision unless it was shown that the decision would necessarily, or inevitably, have been the same. Thus a legal error would still be material if the court was uncertain whether the decision might have been different. The most well-known statement of this is in Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25 at para 42.
Under the principle in Simplex, the onus was on those asserting that the decision would have been the same regardless. The alternative was to require the claimant and the court to show what was in the mind of a decision-maker. This was particularly difficult in circumstances where the consideration that gave rise to the illegality had not even been considered.
The difficulty was compounded where a decision was made by a committee of members (for example, a planning committee) each of whom may have had different views, or when a decision was based on many factors some of which may not even have been separately identified. In such circumstances, it would have been virtually impossible to show what relative weight was given to these factors.
In the recent case of R (Cooper) v Ashford BC [2016] EWHC 1525 (Admin), John Howell QC (sitting as a deputy High Court judge) said (at para 86) that requiring a claimant to show, and a court to judge, what weight might be given to a matter that has not been considered by a decision-maker was to impose a task that both are ill-equipped to discharge.
Senior Courts Act 1981 s31
In any claim lodged after 13 April 2015 (see Criminal Justice and Courts Act 2015 (Commencement No 1, Saving and Transitional Provisions) Order 2015 SI No 778 Sch 2 para 6), SCA s31 (as amended by CJCA s84(1)–(2)) now provides that:
(2A) The High Court –
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application,
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.
[…]
(3C) When considering whether to grant leave to make an application for judicial review, the High Court –
(a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and
(b) must consider that question if the defendant asks it to do so.
(3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave.
It will be noted that the effect of this is to require the court to deal with the issue of legality before granting relief, and, if the defendant requests it, at the permission stage. Thus, in accordance with the government’s original proposals, the new NSD test brings forward the consideration of materiality and lowers the threshold for refusing relief: the old test of inevitability is replaced by one of probability.
Onus
The wording of the NSD test gives rise to the question of whether the onus of demonstrating a lack of materiality – a burden previously placed on defendants – now rests with the court. As set out above, under SCA s31(2A) and (3D) the court must consider whether to refuse relief based on circumstances as they appear to the court.
This gives rise to two potential difficulties, first, and most seriously, that the court will be drawn into a merits assessment. In Cooper, John Howell QC said that asking the court to undertake this task ‘will almost inevitably involve the court forming a judgment on what it considers the underlying merits of the case may be in substitution for that of the person in whom legislation has vested the decision’ (para 86).
Second, and alternatively, the court will be required to second-guess what was in the mind of the decision-maker, a task that John Howell QC in Cooper said it was ill-equipped to do. The point was made in R (Logan) v Havering LBC [2015] EWHC 3193 (Admin), where Blake J said:
In the absence of clear pointers at the time that the flaw was a technical one that made no difference, the court will inevitably be drawn into some degree of speculation or second guessing the decision of the public authority that has the institutional competence to make it (para 59).
The practical difficulties arising are illustrated by the case of R (Wiggins and Jones) v Neath Port Talbot County Borough Council [2015] EWHC 2266 (Admin), in which Gilbart J applied the NSD test. Having found that a local authority had failed to take into account the cost of redundancy when deciding to close a primary school, the judge was required to speculate about the impact of that omission. The matter was not appealed but the judgment illustrates the extent to which the court is now required to place itself in the position of a decision-maker (in this case, a committee of elected members) and evaluate how it would have considered information had it, in fact, done so.
Threshold
A further issue is the extent to which the NSD test makes it easier for the court to refuse relief. As set out above, under the Simplex test a defendant was required to demonstrate that a decision would ‘necessarily’ or ‘inevitably’ have been the same. The new test is that it is ‘highly likely’ that it would be so. This introduces a new element of probability. In Simplex, the court held that probability was not enough.
Concern about a watering-down of threshold was raised by Blake J in Logan. The judge expressed the view that allowing claims to be defeated simply on the basis of a declaration by a decision-maker that obedience to the law would have made no difference ‘would undermine the efficacy of judicial review’ (para 55) and would be likely to deter claimants from bringing claims. He continued:
Whatever else parliament may have intended to achieve by this legislation, I cannot infer that it included so draconian a modification of constitutional principles. It may well be that the new provision was only intended to apply to somewhat trivial procedural failings that could be said to be incapable of making a material difference to the decision made (para 55).
However, it would seem that Blake J’s formulation is closer to the Simplex test than that which applies under SCA s31.
Declarations of unlawfulness
The NSD test also limits the extent to which the court can make declarations of unlawfulness in circumstances where it has, otherwise, declined to grant relief. The issue arose in R (Hawke and Hawke) v Secretary of State for Justice [2015] EWHC 4093 (Admin) (a case involving the application of the Equality Act 2010). In this matter, Holman J initially decided that although the claimant had not suffered loss as a result of the defendant’s action, he was nevertheless prepared to make a declaration of unlawfulness.
Following later submissions on the effect of SCA s31, he changed his mind. Having accepted that it was highly likely that the outcome for the claimant would not have been substantially different if the conduct of the defendant had not occurred, in considering declaratory relief, he said:
It seems to me, first, that the word ‘relief’ where it appears in subsection (2A)(a) must refer back to the word ‘relief’ where it appears in subsection 31(1). In that subsection the relevant forms of ‘relief’ are identified, and they include ‘a declaration’. So far as is material to the present case, therefore, it seems to me that I should read subsection (2A)(a) as if it read ‘must refuse to grant a declaration …’ The words of paragraph (a) are of course mandatory and completely binding upon me … (para 325, addendum to judgment).
The consequence was that the whole of the claim for judicial review was dismissed. Nevertheless, the judge decided that he could give a declaratory judgment and stated that he was confident that the secretary of state would ‘consider and take heed of what I have said’ (para 334). It is not clear whether this had any bearing on costs but it seems reasonable to speculate that, in terms of its impact on future decision-making, a declaratory judgment is likely to carry less weight than a declaration of unlawfulness.
Troubled times ahead?
Although the new test has only been in place for a relatively short period of time, case law already suggests there is both disquiet and uncertainty about its application. It remains to be seen whether concerns about the efficacy of judicial review are well founded. ■