Rebecca Williams: No Pyrrhic victories. The ‘Makes a Difference’ Rule and the Nature of Judicial Review
‘The principles of judicial review’, as Lord Hoffmann noted in Alconbury, ‘give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament’. It is therefore a matter of particular concern that in England and Wales s 84 of the Criminal Justice and Courts Act 2015 has now inserted s 31(2A) and (3D) into the Senior Courts Act 1982, provisions which have the potential substantially to inhibit courts’ power to maintain the rule of law in this way. S 84 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.
(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
The Court must certify that these conditions are fulfilled when it does grant relief or make an award. It must consider this question if the defendant asks it to do so, and can raise the issue of its own motion. These provisions also apply to the Upper Tribunal.
The government’s supposed justification for these provisions was the ‘undue pressure’ put on ‘the courts and other essential public services’, which can ‘unduly frustrate decisions that were properly made’. But of course what the provisions do is to try to deny a remedy in cases where the decision was not ‘properly made’ at all, but where the impact on a particular individual may be relatively small. As Paul Craig has pointed out, ‘While the ‘burden of judicial review’ was the avowed purpose of the exercise, Banquo’s ghost hovering in the background was the government’s irritation with the impediments that review could place on pursuit of its desired policy,’ particularly given that the clause was accompanied in the statute by provisions which increase the financial risk of bringing judicial review actions by reducing the ability to cap litigation costs and requiring claimants to demonstrate their ability to bear this risk when bringing the action, while simultaneously reducing the availability of legal aid for the bringing of judicial review claims.
It is possible that any such attempt to constrain judicial review is constitutionally improper. In the House of Lords debate on the issue Lord Brown called it a ‘heresy’ to regard judicial review as a proper subject for legislation at all, given that ‘judicial review is no more and no less than the exercise of the courts’ inherent jurisdiction to ensure that the decision-making of the Government, its executive action, remains within the bounds of legal propriety’. As Mark Elliott has pointed out, the statute at the very least raises ‘significant separation-of-powers issues, given that it is that very administration (among others) whose decisions fall to be scrutinised by way of judicial review.’
But even if we take the view that a Sovereign Parliament can do what it wants by legislation (even when that means legislation supported by the executive for the purpose of limiting the executive’s accountability to the judiciary), the statute fundamentally misconceives the role and operation of judicial review.
First, it runs contrary to an understanding of the role of courts which exists well beyond the confines of the UK. The well known decision of the ECJ in Costa v ENEL, for example, establishing the precedence of (what was then) EU law over that of the Member States, concerned a dispute over 1925 lire, hardly a ‘substantial’ amount of money. This leads immediately to a second point, which is that the provisions are also practically misconceived in that, as Lord Woolf pointed out in the House of Lords debate on the provision, ‘It may well be possible to have a case … where what is at stake is a matter of only a few pounds, but where the citizens in general will all be affected by a few pounds. We do not want, in that situation, to have more than one application; otherwise it is simply duplicating the work of the court.’ Test cases may not concern substantial amounts of money, but this makes them no less important and the ability to hear them works towards efficiency and the reduction of burdens, not against it.
Third, the new s 2A runs directly contrary to the direction taken by judicial review in the UK in recent years. As Sedley LJ pointed out in R v Somerset CC ex p Dixon: ‘Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs.’ It is for this reason that the rules of standing for judicial review in England and Wales are as wide as they are, allowing ‘interested taxpayers’ and journalists, as ‘guardians of the public interest’ to bring judicial review actions even when they are not directly affected by the decision in question to any greater extent than anyone else. And ironically (and indeed fortunately), these standing rules were left untouched by the 2015 Act, the government explicitly recognising that there were both practical and principled reasons not to try to reform standing as part of the provisions.
Fourth, as is well known, when a court grants a remedy such as a quashing order, this does not create the unlawfulness of the decision-maker’s action, it merely declares the existence of that unlawfulness and the fact that the decision is therefore, as it always has been, void ab initio. A quashing order is therefore only a means of ensuring that the defendant acts in accordance with this finding, in the sense that a failure to comply with the quashing order would place the decision-maker in contempt of court.
However, this very misconception at the heart of the provisions is already proving to be the undoing of some of the impact of those provisions. As Elliott has pointed out, it is difficult to see how a court could ever begin to examine the question of whether a particular ultra vires action or decision ‘made a substantial difference’ to the claimant, without first establishing whether or not the action or decision was indeed ultra vires, and indeed this is precisely what has happened in the first two decisions to consider the new s 31(2A). In R (Logan) v London Borough of Havering  EWHC 3193 (Admin) the question of the ‘makes a difference’ rule was first discussed in the substantive hearing of the case. Blake J made it clear, first, that the rule would not be triggered easily. It would not be sufficient to base it on ‘post-decision speculation by an individual decision-maker’
‘…Any other course runs the risk of reducing the importance of compliance with duties of procedural fairness and statutory or other requirements that certain matters be taken into account and others disregarded. Indeed, it would undermine the efficacy of judicial review as an instrument to ensure that the rule of law applies to decision making by public authorities, by deterring claimants from bringing a case or the court from granting permission by a declaration by a decision maker who has failed to obey the law to the effect that obedience would have made no difference. 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…’
And, even more significantly, Blake J went on to state that s 2A would not prevent him giving what he called ‘a declaratory judgment’. This was an approach also taken by Holman J in the subsequent case of R (Hawke) v Secretary of State for Justice  EWHC 3599 (Admin). And as Holman J went on to point out at ,
If even after a “declaratory judgment” a public authority persisted in failing to discharge its public sector equality duty under section 149, then there may come a time when, on proof of that failure, a claimant may be able successfully to persuade the court that enough is enough and that the exceptional public interest under subsection (2B) has become engaged. Alternatively (without in any way deciding the point), it may be that if a body such as the Equality Commission, which has very express responsibilities in this field, reached a considered decision that a public authority was in such continuing breach of the public sector equality duty that it was necessary to obtain a formal declaration from the court, then such a body may be able to persuade the court that the exception in subsection (2B) is engaged, even though, by the nature of the body, it would not be able to show that the outcome for it would have been substantially different.
All of which might lead one to question what precisely the difference might be between a declaration and a ‘declaratory judgment’, and what, therefore, is the point of the new s 2A. But the situation becomes even more ridiculous if one reads the whole of the report of the decision in Hawke. Counsel for the defendant in Hawke only realised the applicability of the new provisions towards the end of the proceedings, when the Court was considering the matter of costs. From that point onwards the court then sat and rose five further times, including rescheduling a further hearing for the following day in order to establish the implications of the new provisions, only to end up issuing ‘a declaratory judgment’. And it is worth noting, as did Lord Woolf in the House of Lords debate that even absent the new provisions a court ‘will refuse relief—indeed, they will refuse permission to make the application—if they are of the view that the application is misconceived and it is not appropriate that it should go forward’. If the outcome really would make no difference, a claimant was unlikely even before s 2A to get anything other than a declaration in any case, and now such a claimant will get ‘a declaratory judgment’. It is certainly difficult, therefore, in the light of the Hawke decision, to regard the provision as having in any sense relieved the burden on decision-makers or rendered judicial review any more efficient.
Of course, Blake J did note in Logan that the ‘declaratory judgment’ option would not be so easy to take at the permission stage, adding that he did not
‘rejoice in the prospect of having to make such assessments in cases like the present at the permission stage. It seems to me to have the potential for increasing the length, cost and complexity of the proceedings and bringing an unwelcome constraint on the court’s flexible assessment of the interests of justice. 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.’
And as Craig has pointed out, given that there can already be a disparity between judges in their willingness to grant permission, that situation can only be exacerbated by the need to make such assessments. However, even at the permission stage all is not lost. There is a series of arguments that can be made.
First, even at this stage the court can refuse to be satisfied too easily that a remedy would indeed ‘make no substantial difference’. After all, as Megarry J first pointed out in the procedural fairness context of John v Rees, one never knows what difference the remedy might make, particularly when the issue is being considered at such an early stage. Second, the word ‘substantial’ can be interpreted to mean ‘of substance’ as well as ‘significant’, and the former interpretation is much easier to satisfy. That is precisely the forgiving approach taken to the ‘sufficient interest’ test in standing. Third, Elliott has pointed out that even if there is a duty to give reasons in a particular instance these will not necessarily make a difference to anything, and one might also argue that Parliament could not have intended to abolish declarations by default, and yet they too will not make a substantial difference to anything, as is evidenced by their very interchangeablility with ‘declaratory judgments’. Since as Blake J points out, there must be a limit to what Parliament can be taken to have intended to abolish by these provisions, this too provides a good reason for giving a limited reading to s 2A, particularly at the permission stage.
The hope, therefore, is that both at the permission and the substantive stages of the hearing, courts will continue as the courts in Logan and Hawke have begun, giving as narrow an interpretation as possible to s 2A so that they can continue to fulfil their constitutional role and protect the rule of law.
Rebecca Williams is an Associate Professor of Law at Pembroke College, Oxford.