21st February 2021
The news item is dramatic.
The high court in London has decided that a government department – or a specific secretary of state – has acted illegally or unlawfully.
The department or minister has, as the saying goes, broken the law!
There will then be a flurry of tweets, retweets and likes – and then demands for resignations, or prosecutions, or whatnot – followed by complaints that the news media (usually the BBC) have not adopted a similarly breathless approach.
And then there will be a sense of anti-climax or disappointment as the news fades and nothing significant seems to happen.
Nobody resigns, nobody is sacked, nobody is prosecuted, nobody has any personal legal liability.
Why is this?
Surely breaking the law has consequences?
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Well.
Part of the problem is that the words ‘illegal’ and ‘unlawful’ are wide in their meaning.
(For convenience, the terms ‘illegal’ and ‘unlawful’ will be used as synonyms n this post – though some lawyers will have very strong opinions as their distinction in certain contexts.)
Their core meaning of being ‘illegal’ and ‘unlawful’, of course, is that there has not been compliance with a law – or that a thing has been done without a lawful basis.
That core meaning, by itself, does not tell you what laws have been broken, how they were broken, and what the consequences (if any) are for that breach.
And in the case of there not being a lawful basis for a thing, it may even mean no specific law has been broken as such.
There are many ways in which a thing may be ‘illegal’ or ‘unlawful’.
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Yet for many the phrase ‘broken the law’ will mean a person has done something criminally wrong.
That such a person has breached a prohibition for which the criminal law provides a sanction for that breach.
But that is only one way the law can be breached.
This is because criminal law is only a sub-set of the law.
And so the illegality that gives rise to criminal liability is just a sub-set of illegality.
There are other ways a thing can be ‘illegal’ or ‘unlawful’ without any criminal offence being committed.
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Another way a thing can be ‘illegal’ or ‘unlawful’ is when a person does not comply with the conditions of a contract, or with the terms of a licence, or commits a wrong such as trespass or negligence.
Such an action or inaction will be to ‘break the law‘ – but these will not usually result in any criminal sanction.
Such wrongs are usually enforced, if at all, by a wronged party suing in a court.
This is what the law regards as ‘civil’ law as opposed to ‘criminal’ law.
Some people can commit dozens – if not hundreds – of such breaches – and nothing happens, because nobody is able or willing to sue for the wrong.
People act unlawfully and illegally every day.
People just like you.
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Another way a thing can be ‘illegal’ or ‘unlawful’ is when a public body does not comply with the provisions of the law or its relevant legal duties.
Here the relevant law is called ‘public law’ – a general term for the special laws that regulate what public bodies can and cannot do.
As a general rule, a public body can only do what the law provides for that body to do, and when doing so that body also has to comply with certain duties.
And if that public body does not do so, then it will be acting ‘illegally’ or ‘unlawfully’.
This means the public body, as a matter of law, has not done what it should have done.
The common way for such bodies to be held legally to account for the lawfulness of what they do is called ‘judicial review’ – though the question of legality can also sometimes be raised other legal proceedings.
Judicial review is, in England and Wales, usually before the high court.
When the question of legality is raised, the high court will ascertain the relevant laws and legal duties of the public body, and the court will then determine whether the public body has acted in accordance with those laws and duties or not.
If not, the court can decide whether the public body (or minister in charge of a government department in their official capacity) has acted illegally/unlawfully.
And that…
…is it.
At least that is it, in respect of the substance of the case.
If necessary, the court can then make a ‘quashing order’ that will render the act – a decision, or measure, or policy – as unlawful.
The quashing order will then, by legal magic, remove any legal meaning from what was done (or not done).
In practice, this usually means the public body (or minister) can make the quashed decision (or measure or policy) again, but this time lawfully.
A court may sometimes think a quashing order is not necessary, and may make what is called a ‘declaration’ instead – where the high court declares what the relevant legal position is (or is not).
And sometimes a court can even view that neither a quashing order nor a declaration as having any practical use, and regard the breach as moot or academic.
So a finding by the high court of illegality by a public body may mean there is a remedy, on not, depending on the circumstances.
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The role of the court in judicial review is to, literally, review a thing judicially – to see if a thing done or not done by a public body was lawful or not.
And if so, to see if anything practically needs to be done as a consequence.
Nothing more.
No automatic orders to pay damages, still less impositions of criminal convictions.
And sometimes not even a quashing order or other order, or a declaration, as not even that remedy is required to put right the wrong.
This is because the job of public law is not to deal with civil or criminal wrongs directly but to ensure lawful actions by those with public power – and to issue what corrective orders are necessary to ensure that public bodies keep within their powers and fulfil their duties.
Telling the swimmers to stay in their lanes, and blowing a whistle if required.
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There is a public interest in this discrete question of legality of public bodies being examined by courts.
Of course, there will always be a clamour for greater sanctions for those individually responsible for such unlawful conduct.
And both the civil law and criminal law do provide the means for civil claims and criminal prosecutions to also be brought in certain circumstances.
Judicial review is not the only legal redress.
Such claims and prosecutions can, however, be complex and time-consuming, involving extensive witness and other evidence, and the need for witness evidence to be examined and cross-examined.
It is harder to impose individual culpability than to review generally whether a public body has acted lawfully or not – especially if intention has to be proved or causation of damage to be shown.
This is not to say there should be no role for civil and criminal liability when things go wrong in the public sphere – but to aver instead that the allocations and inflictions of such liabilities on individuals raise wider legal issues than the narrow question of whether a public body acted within or without its legal powers and duties.
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So when the news is that the high court has found that a public body (including a secretary of state) has acted unlawfully or illegally then this means the court has reviewed what has happened and found it legally wanting.
A ‘cross’ rather than a ‘tick’ against the public body’s action or inaction.
The swimmer is in the wrong lane.
And, if required, an order or declaration so as to correct what has gone wrong.
That this does not carry any personal legal consequences for the ministers or officials involved will disappoint some of those following the news.
But to insist that there also has to be personal legal consequences for the ministers or officials whenever there are unlawful or illegal actions by a public body would be to make judicial review ineffective as a useful tool.
And there would be no public interest in that.
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Is it the case that ministers are held or defined not to be ‘public officers’, and so are relieved from prosecution for misconduct in a public office. One imagines a judicial review or enquiry finding unlawful action would be compelling evidence in such a prosecution.
@Adam Dowling Ministers are most certainly public officers (R v Friar (1819) 1 Chit Rep (KB) 702), but any prosecution would require far more than simply an unlawful act by a public officer. The offence of misconduct in public office requires either that the officer intentionally breached the law, or acted with reckless disregard as to whether what they were doing was lawful. This almost always involves showing that there was a malicious, dishonest, or corrupt motive; in contrast, an honest mistake is wholly insufficient, and in almost all cases, it is not possible to prove that the unlawful act was anything more than an honest mistake.
Many thanks David.
One might hope that, even if no sanction were imposed by the courts, such a ruling could incur some reputational damage to the minister or public body that might deter them from breaking such rules in future. That would, of course, depend upon the ruling being widely reported so that the public are made aware. If not reported widely, the reputational damage only has limited impact and therefore there is less incentive for the minister or public body to discontinue such behaviour.
Have you considered doing a blog on the courts comments about politicians joining the case?
Would be interesting considering the ramifications to the court process from actions like that and the Brexit cases and Government response to reforming judiciary.
I may blog on that point
The vogue for judicial review claims by politicians seems to be generating quite the Justice League in litigious unions: https://www.bbc.co.uk/news/uk-northern-ireland-56148441
It puzzles me why judges so often duck even making a declaration despite having held, after much time and expense, that a breach has occurred.
Judicial parsimony is also evident in the tendency to avoid determining argued points if a conclusion can be found regardless. This saves us from hasty precedents but prolongs the suffering of anyone affected by the law’s continued uncertainty. If only there were some non-corruptible way for laws to be refined to resolve perceived ambiguity and infelicity before disputes and injustices arise: fleshing out legislation with something defter than an Act, more constructive than regulations and more robust than statutory guidance.
Mr Greenhill, I am presently (March 2024) suing a Family Court at the High Court, by way of judicial review of proceedings that to date have lasted nearly five years, for unlawful conduct. I am seeking a change to the FPR 2010 5.7 and CPR 39.8 that communications with the court and parties should (with very few permitted exceptions) be copied contemporaneously to the opposing party. In brief the Head of Investigations HMCTS has determined that there exists an Order (which I have never seen) that compels me to transfer all ownership of my legal estate to my ex-wife, which was never agreed. The Court has been manually altering applications and Orders and acting ultra vires and contrary to the FPR which states that no linguistic, grammatical or textual amendments may be made by a Court Officer to an Order and the numbering must never be altered. Your final paragraph above impressed on me, do I have your permission to use it? THANKS
Valuable – I will refer to this when next discussing ‘illegality’. But why were the legal fees expended so high? Is it that there is no redress for going to such lengths and then ‘losing’ the case?
Okay, you’re the expert, so I accept that there shouldn’t necessarily be personal legal consequences for individuals involved in public law being breached. But I don’t think that is what the public outrage is ultimately about. It’s that there are seemingly also no political consequences for the individuals involved.
The political consequence is that – if the public is sufficiently exercised by these charlatans – they will lose their seat at the next election.
Once upon a time ministers resigned (or were asked to resign or were sacked), for far smaller misdemeanors. We shouldn’t have to wait for years, and it requiring some critical mass of outrage – especially when a lot of voting is in practice not done for the person, but for the party (i.e. “safe seats”).
This JR is one piece in the wider PPE procurement puzzle. Of itself, ‘handing homework in late’ is probably insufficient to justify political consequences. If subsequent JRs substantiate the ‘systematic’ claim about Govt behaviour or declare any PPE contract awards to be unlawful then heads will roll (politically not legally) to prevent wider reputational damage to Government. An interesting question that will come up more often if Govt loses again is why they are spending such ludicrous sums defending the indefensible (which this case surely was)?
May I suggest that there are matters that, although not legal are nevertheless legitimate? One example is private arbitration. Recognised in E&W by the arbitration Act 1996, it is not ‘legal’ in the sense that it is not a process at law. The whole purpose of ADR is, I argue, to avoid the legal system and to favour Justice above the Law.
Well, it seems the court will be making declarations that the Secretary of State failed to comply with his legal obligations. No doubt this will be a great encouragement to be more compliant in future.
Hancock has made a number of unapologetic statements today. https://www.bbc.co.uk/news/uk-politics-56145490 That (i) failing to meet the legal obligation was the “right thing to do”, (ii) his staff were working “seven days a week, often 18 hours a day” on securing PPE instead, and (iii) the necessary information was published “just after a fortnight late” on average. So really, what was the problem?
The first seems to be another interesting example of the law being breached in a specific and limited way. It seems Government ministers have arrogated the power to decide for themselves which laws to obey and which to break if they think it expedient. Which is a pretty remarkable erosion of the rule of law.
It also seems to cut across the evidence given to defend against “Issue (c)”, whether there was a policy of deprioritising compliance with transparency obligations. Hancock seems to be saying that it was right to ask people to work on other things instead. No one said “don’t publish”, they were just told to work on other things first. The delay was just an unfortunate, unintended and unavoidable by-product. Hmm.
That runs into the second, which raises the question of resources. How many people in the department, working on PPE contracts, were working 18 hours a day, 7 days a week? How long did that last? Was it really not possible to comply with this legal obligation because everyone was working on securing more PPE supplies? How much work would have been required to publish the necessary information once a contract is signed?
And on the third, “just after a fortnight late” on average seems to be referring to the average of 47 days mentioned in the judgment, versus the legal requirement 30 days. Taking nearly seven weeks to do something that should be done within just over four is not a near miss. 17 days is not “just over” a fortnight. It is almost 2.5 weeks, more than 50% longer than the requirement.
But anyway, lets see the statistics. Is there a pattern to the contracts that were published late? In fact, paragraph 60 of the judgment gives some. “by the beginning of October 2020 … the Secretary of State had spent some £15 billion on [PPE] but the value of the contracts made public by that time was only £2.68 billion. … the average time for publication of CANs was 47 days for COVID-related contracts, compared to 29 days for non-COVID-related contracts.” Somehow, despite the pandemic, the department managed to comply with the law for other contracts, but for some reason the bulk (in value terms) of COVID contracts were delayed. So what was the problem with these ones?
And that leaves aside the questions of who received contracts, and why some people did but others with a track record in this sector did not, how the contract price related to market prices, whether the products delivered met the required specification, when the products were needed and when they were actually delivered, and the piles and piles of unsuitable PPE still sitting in containers, still arriving indeed, to the extent that new staff have been engaged to work out what there is and where it is.
And then why the Secretary of State fought the case tooth and nail, rather than admitting up front “yes, we got this wrong, we’ll do our best to comply in future”.
DAG writes that a quashing order usually means that a public body or minister can make a quashed decision again, but this time lawfully. It’s worth considering the implications of that scenario as it may mean in some cases that a claimant achieves a pyrrhic victory – after being quashed (the most common remedy) the decision is remitted for redetermination by the decision maker and the ultimate outcome may be the same, provided the fresh decision was properly reasoned this time or procedurally fair, etc. As every law student knows, judicial review is concerned with the lawfulness of a decision, not its merits.