UK: Public Law Case Update - December 2018

The December 2018 edition of our case update features six cases each of which highlights an important point of principle or procedure. These include a focus on when differential treatment is objectively justified, whether it is unlawful discrimination for a business to refuse to express through its services a political opinion with which it disagrees, and the rules of statutory interpretation. These further include confirmation that judicial review is a remedy of last resort and that a legitimate expectation created by a public ministerial statement continues until publicly withdrawn.

In this edition, our experts examine the following cases:

  1. Supreme Court protects the freedom not to express an opinion - Lee v Ashers Baking Company Ltd and others;
  2. Judicial review as a remedy of last resort - St George's University of London and another v R (on the application of) Rafique-Aldawery and another;
  3. When is a policy creating differential treatment objectively justified? - R (on the application of T and others) v Secretary of State for Education;
  4. Rules of interpretation (1) - applying ordinary and natural meaning in the law on referendum expenses - R (The Good Law Project) v Electoral Commission and others;
  5. Rules of interpretation (2) - applying the ejusdem generis rule to determine the scope of a public body's powers - R (on the application of Muir) v Wandsworth Borough Council and Smart Pre-Schools Limited;
  6. Legitimate expectation created by a statement in a government Green Paper - R (on the application of Save Britain's Heritage v Secretary of State for Communities and Local Government.

Supreme Court protects the freedom not to express an opinion

Lee v Ashers Baking Company Ltd and others

The question before the Supreme Court was whether it was unlawful discrimination for the McArthurs, the owners of a Belfast bakery, on the basis of their religious beliefs, to refuse to supply Mr Lee with a cake iced with the message 'support gay marriage'. Following that refusal, Mr Lee brought a claim for discrimination, including on the grounds of sexual orientation and political opinion, contrary to the Equality Act (Sexual Orientation) Regulations (NI) 2006 and the Fair Employment and Treatment (NI) Order 1998 (FETO) respectively.

That claim was successful both at first instance and at the Court of Appeal. The McArthurs appealed to the Supreme Court which considered whether any discrimination had taken place and, if so, how the rights of Mr Lee under the Northern Irish equality laws should be balanced against the McArthurs' rights to freedom of religion and freedom of expression under Articles 9 and 10 of the European Convention on Human Rights (ECHR).

The Supreme Court found that there had been no discrimination on the basis of Mr Lee's sexual orientation. Mr Lee's order was rejected because of the content of the message itself, rather than any attribute of Mr Lee. The McArthurs objected to gay marriage, not to Mr Lee as a gay man. He had been served by the McArthurs previously, and a heterosexual customer requesting the same message would have been treated in the same way.

Unlike the rest of the UK, discrimination on the basis of political opinion is unlawful in Northern Ireland (for obvious historical reasons). The Supreme Court accepted that support for gay marriage was a political opinion. It also accepted that, as with the sexual discrimination claim, the objection was to the message and not Mr Lee.

Where discrimination is on the grounds not of some protected characteristic, but a proxy for or something indissociable from that characteristic, then this will amount to direct discrimination. However, in this case, while there was an argument that there was an indissociable link between the message and Mr Lee's political opinion, no such link existed with his sexuality as one does not need to be gay to support same sex marriage.

The Court therefore went on to consider whether FETO had to be read down so as to be compatible with the McArthurs' rights under the ECHR. It was noted that to compel a person to express an opinion that he or she did not hold would interfere with their rights to freedom of expression and, in this case, religion. Whilst the ECHR clearly does not permit discrimination on the grounds of political opinion, the Supreme Court held that the Northern Irish equality laws should not be interpreted so as to compel businesses to express an opinion with which they disagree.

Judicial review as a remedy of last resort

St George's University of London and another v R (on the application of) Rafique-Aldawery and another

The appellants were higher education institutions (HEIs) and the respondents were former medical students who had been studying at those institutions. The HEIs decided to terminate each of the respondents' medical courses by reason of fitness to practise issues or repeated examination failure.

The respondents both referred their cases to the Office of the Independent Adjudicator (OIA) - a body designated under statute to review certain complaints against HEIs - and commenced judicial review (JR) proceedings against the respective HEIs.

At first instance the High Court stayed the respondents' applications for JR, pending the outcome of the OIA process. In giving judgment, Hickinbottom J (as he then was) gave detailed guidance to assist students in respect of timings and procedure to be followed in three types of cases, namely where:

  • OIA proceedings have been issued, no JR proceedings have yet been issued but the student wishes to reserve the right to bring such proceedings;
  • OIA and protective JR proceedings have been issued;
  • JR proceedings have been issued but the student does not wish to refer the complaint to the OIA.

In the event, the OIA rejected both of the respondents' complaints and both applications for JR were refused permission.

However, the HEIs appealed the grant of stays in both cases and the guidance given by Hickinbottom J, on the basis that the guidance:

  • had the effect of compelling students to issue JR proceedings for fear of losing a legitimate means of protection;
  • deprived the HEIs of their normal protection of short time limits in JR proceedings, as longer timings are set out in the guidance;
  • undermined the statutory complaints procedure by encouraging students to issue protective JR applications simultaneously with complaints to the OIA.

The Court of Appeal allowed the appeal. It confirmed that, in circumstances where the OIA provides an alternative (albeit not identical) remedy which is intended to be both swift and cost-effective, JR is a remedy of last resort. The guidance given by the Court below would, however, lead students to issue protective JR proceedings in cases where it was not appropriate to do so.

The Court offered some observations on how a student could take practical steps to protect his/her legal position without recourse to separate JR proceedings when making a complaint to the OIA.

A student could write to the HEI to put it on notice of the complaint and the possibility of future JR proceedings if the OIA did not provide a suitable remedy. That letter could then be filed in any subsequent JR proceedings should the HEI later seek to take the point that those proceedings were time barred, and it would be a significant factor in the Court's consideration of whether to exercise its discretion to extend time.

Although these matters were considered in the context of the jurisdiction of the OIA, the conclusions of the Court are equally applicable in any case in which a complainant has an alternative means to challenge a decision of a public body in circumstances where JR is also available.

When is a policy creating differential treatment objectively justified?

R (on the application of T and others) v Secretary of State for Education

The claimants in this case were single parents and their dependent children. All children between three and four are eligible for 15 hours of free childcare, no matter whether their parents are in work or not. The claimants sought to challenge the Childcare (Early Years) (Provision Free of Charge) (Extended Entitlement) Regulations 2016 under which an additional 15 hours of free childcare is available for the children of working parents.

Due to their personal circumstances, the claimant parents are unable to work and therefore ineligible for the additional 15 hours free childcare. They argued that the Regulations led to differential treatment between families with (at least) one working parent and those with a lone parent who cannot work. In doing so, they claimed that the Regulations breached Article 14 of the European Convention on Human Rights (which prohibits discrimination on any specific ground or status), read together with Article 8 (which secures respect for an individual's family life).

The Secretary of State accepted that there was indeed differential treatment for the purposes of Article 14, but argued that such treatment was objectively justified as a proportionate means of pursuing the legitimate aim of facilitating and incentivising parents back into work, or to work more hours.

The Court was satisfied that this aim was legitimate and that the policy approach taken in the Regulations was rationally connected to that aim. The Regulations did not disadvantage persons in the claimants' position by removing the existing blanket entitlement to 15 hours free childcare. It was intended to provide an additional benefit to a particular group of parents in order to better enable them to work.

The Court noted that it would be slow to interfere with economic or social choices made by the executive or legislature which led to differential treatment, save where those choices were without reasonable foundation. In this case, the choice made was to allocate resources to achieve a particular social goal - encouraging those parents who could work to do so. It was clear from the evidence that the impact of the Regulations - on women housed in refuges, for example - had been considered during the legislative process. The claimants had not been able to put forward a less intrusive means of achieving the relevant aim.

Although there was some evidence of the potential educational and developmental benefits of providing an additional 15 hours of free childcare to all children, the scale of the benefit appeared limited, or unclear at best. There were also other social policy measures in place to assist those in the claimants' position.

The Court was therefore satisfied that the Regulations were a proportionate means of achieving the legitimate social policy aim towards which they were directed, and the claim failed.

Rules of interpretation (1) - applying ordinary and natural meaning in the law on referendum expenses

R (The Good Law Project) v Electoral Commission and others

Legal proceedings relating to the 2016 Brexit referendum continue to arrive in many guises. In Good Law Project the question was whether the Electoral Commission (the Commission) had correctly interpreted the legislation which limited spending on referendum campaigns by permitted participants.

Vote Leave (a permitted participant in the referendum) made three payments to an online advertising firm used by Mr Grimes (another permitted participant). In his spending report to the Commission, Mr Grimes reported the payments as donations received by him and as his referendum expenses. Vote Leave did not report the payments as expenses but only as donations to Mr Grimes.

In its assessment of the reports, the Commission concluded that there was no incorrect reporting of campaign spending or donations and decided that the relevant payments made by Vote Leave were donations to Mr Grimes and not part of their referendum expenses.

The decision of the Commission was challenged by the Good Law Project (an interest group) on the basis that the Commission had failed to interpret correctly the requirements of the Political Parties, Elections and Referendums Act 2000 (the Act). It argued that the payments, properly classified, were referendum expenses for Vote Leave.

It was common ground between the parties that, if the payments could be said to be 'expenses incurred' (the phrase used in section 111(2) of the Act but not otherwise defined) by Vote Leave, they would be referendum expenses and not donations.

The claimant argued that an expense is incurred by a person whenever they spend money or incur a liability which reduces their financial resources. The Commission did not offer an interpretation but argued that it would be inconsistent with the legislative scheme if donations received by a permitted participant also constituted referendum expenses for the donor. Vote Leave argued that incurring an expense meant accepting a contractual liability and, as it had not accepted any contractual liability in relation to the payments, they could not be expenses incurred.

In considering the meaning of the undefined term 'expenses incurred' the Court referred to the basic principle that it should be interpreted in accordance with its ordinary and natural meaning that accords with the purposes of the legislation.

The Court accepted that if other aspects of the legislative scheme had pointed strongly in the direction of the policy that only the money which a person is liable to pay (e.g. by entering into a contract) is to be treated as expenses incurred, the meaning could have been construed in the manner argued for by Vote Leave. However, it did not find that there was such a strong direction within the legislation.

Having considered the ordinary and natural meaning and the purposes of the Act, the Court agreed with the claimant's interpretation. Accordingly, it held that the Commission erred in its interpretation of the Act and that the relevant payments made by Vote Leave were in fact referendum expenses that should have been reported as such.

Rules of interpretation (2) - applying the ejusdem generis rule to determine the scope of a public body's powers

R (on the application of Muir) v Wandsworth Borough Council and Smart Pre-Schools Limited

Does a private limited company fall within the umbrella of the word 'organisation' where the statute refers to 'clubs, societies or organisations'?

This was the question put to the Court in Muir.

Following a competitive tender, the Council decided to grant a lease of premises to Smart Pre-Schools Limited (a private limited company) for the purposes of operating a pre-school nursery at the premises. The claimant - who had also responded to the tender - challenged the Council's decision, made in reliance of Schedule 1 to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 (referred to as the '1967 Order').

The powers conferred on the Council under Article 7(1) of the 1967 Order include powers to provide and maintain in any open space (i) 'indoor facilities for any form of recreation whatsoever' (sub-paragraph (v)), and (ii) 'centres and other facilities (whether indoor or open air) for the use of clubs, societies or organisations whose objects or activities are wholly or mainly of a recreational, social or educational character' (sub-paragraph (vi)).

The claimant argued that the provision of childcare in a nursery setting which includes pre-school education did not fall within the term 'recreation' and that, on a proper interpretation, sub-paragraph (vi) provided only for non-profit making groups which shared a common interest to use the centre and facilities, and not for private companies operating a profit-making business. The lower court agreed on both counts, leading the Council to appeal.

On the first issue, the Court of Appeal agreed that the facilities provided by the pre-school nursery were not wholly or mainly recreational as they were more akin to a school and the nursery also offered other services such as childcare.

On the second issue, the appeal court considered the ejusdem generis (meaning "of the same kind") rule of statutory interpretation. This provides that where the law lists specific classes of persons or things and then refers to them in general, the general statement applies only to the same kind of persons or things that are specifically listed.

In applying this rule, the lower court agreed with the claimant and held that only non-profit making organisations could be considered to be of the same kind of organisation as clubs and societies. The Court of Appeal did not go this far but held that the term 'organisation' was to sweep up those bodies that "cannot be described as clubs or societies but which nevertheless share their principal characteristic of being run for the benefit of members sharing a common interest".

The Court held that the privately owned company providing services for clients or customers did not operate on that basis. Accordingly, it was not 'the same kind' of organisation as a club or a society and the Council was not therefore empowered to grant a lease to it in reliance of the powers conferred by the 1967 Order.

Legitimate expectation created by a statement in a government Green Paper

R (on the application of Save Britain's Heritage v Secretary of State for Communities and Local Government

In Save Britain's Heritage, the background was that the Secretary of State (SofS) decided not to 'call in' a planning application for a development known as the Paddington Cube, and the appellant challenged him for failing to give reasons for that decision.

The power of the SofS to call in a planning application (i.e. require that it is referred to him instead of being dealt with by local planning authorities) is statutory, under section 77(1) of the Town and Country Planning Act 1990 (the Act).

The appellant contended that he should have given reasons for exercising the power because -

  • There was a general duty under common law to give reasons for any decision under section 77 of the Act, but even if there was no general duty, the circumstances of the case were such that common law required reasons to be given.
  • The appellant had a legitimate expectation that reasons would be given for this type of decision by virtue of promises made in 2001 in a Green Paper and a ministerial statement in Parliament.

The Court of Appeal did not accept either that there was a general common law duty to give reasons for declining to call in a planning application, or that in the circumstances of the case the common law required a duty to be imposed where it did not otherwise exist.

However, the Court agreed that a legitimate expectation had been created by the express promises given in the Green Paper and the ministerial statement.

The SofS had argued that these promises had in fact been withdrawn by virtue of a change in practice adopted in 2014. The Court noted that there might be scope to argue that a legitimate expectation created as a result of a practice may disappear if there is a change in the practice. However, in this case the expectation did not result from a particular practice being followed but from an unequivocal promise made in Parliament and not publicly withdrawn.

Furthermore, the change in practice was not a result of a conscious decision to withdraw the promise; it had simply been forgotten that such a promise was ever made. The Court found that where a public ministerial promise has been given, good administration and transparent governance requires that any withdrawal of that promise must also be made publicly.

The general importance of the case - beyond its immediate planning context - is in the Court's finding that ministerial statements made in a Green Paper and in Parliament, even if that was many years ago, are capable of generating ongoing legitimate expectations unless they have in the meantime been explicitly disavowed by a later statement.

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