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?
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’.
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.
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.
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.
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.
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.
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.
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.
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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