22nd October 2024
Not all cases of constitutional import involve the high drama of cheering campaigners and disappointed ministers – or of cheering ministers and disappointed campaigners.
But the cases set out what is constitutionally proper and improper all the same.
Last Wednesday to relative media silence (other than in local media) the Supreme Court handed down its decision in a Northern Ireland case about appropriate legal action for a complainant to take so as to prevent harmful chemical gases and noxious smells escaping from a waste disposal site.
This is perhaps not the most glamorous set of facts for any legal case – and this is perhaps a pity, as the Supreme Court decision asserts a point of fundamental constitutional importance: about the ability of a person to access the courts for judicially reviewing public bodies not doing their regulatory job.
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By way of background, there is an excuse which is deployed again and again by public bodies seeking to escape being taken to court for judicial review.
(In general terms, judicial review is the process by which a court will decide whether a public authority is correctly exercising its legal powers.)
The excuse is that the complainant has to “exhaust other remedies” as judicial review “is the remedy of last resort”.
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In this case, the complainant Mrs McAleenon was told that she could not go to court to get public bodies to properly regulate what was going on at a waste disposal site.
On the face of it, the local council and the Northern Irish Environment Agency and the Northern Ireland department of Agriculture, Environment and Rural Affairs all had powers to do something about it:
But the complainant (and other local people) believed that these public bodies were not doing what they should be doing about the problem.
And it was a problem – this was certainly not a trivial issue:
One would think that this was a straightforward position: some local people had a problem, and there were public bodies who could and should do something about problem.
This would seem to be as basic a situation for modern public law and administration as one can conceive.
The public authority regulator should do its regulatory job.
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But for Mrs McAleenon and her neighbours it was not a straightforward position.
When she threatened to take the public bodies to court so as to make them perform their public duties, she was told that she could not do this.
Instead, she was told that she had to do other, far more risky and expensive legal things first.
She was told by the public bodies, seriously, that judicial review should be not be available because she had “adequate alternative remedies”, in that she could herself launch a private prosecution against the owner of the waste disposal site, or could bring nuisance claim against the owner of the site.
Mrs McAleenon applied for judicial review anyway, and at first instance the court sided with her.
But then the public bodies appealed and the Northern Irish court of appeal went against her in a detailed judgment.
The appeal judges ruled that “there were two alternative remedies open to the appellant to provide her with the relief she required if her claims are correct, namely cessation of the alleged nuisance on the Site. Each of these remedies, we find, offered her the opportunity of obtaining relief against the alleged wrongdoer”.
She should not be able to go to court against the regulator, the judges said, because her real complaint was against the site.
Mrs McAleenon applied to appeal to the Supreme Court, and she was given permission.
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One issue in the case was that there were disputes over facts and contested evidence – and judicial reviews usually do not deal with factual disputes and contested evidence. Judicial reviews are normally about pure issues of law in respect of agreed facts. As such, cross-examination of witnesses and competing expert reports and so on are rare in judicial reviews.
This looks as if it may have influenced the appeal judges – as other legal procedures were more used to assessing evidence at trial.
But it is entirely open to a judicial review court to deal with factual and evidential conflicts.
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The Supreme Court took the view that judicial review should not be refused just because there were factual and evidential conflicts.
But the Supreme Court went far further than this, and said – in effect – that for Mrs McAleenon the availability of criminal and private law procedures were not even alternative remedies in the first place.
In essence, when the complaint is against a public body as a regulator, it is irrelevant that the complainant may also have a remedy against a party that is not being properly regulated.
In two key paragraphs, the Supreme Court set out the public importance – and public benefits – of the complainants having access to judicial review against regulators:
The Supreme Court also made the point that access to an Ombudsman may not also be an adequate alternative legal remedy:
This dicta should please those who (correctly) are concerned about the general ineffectiveness of the Ombudsman system.
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The Supreme Court remitted the case back to the Northern Irish court of appeal for it to be properly decided.
This is the press release from the successful appeal solicitors Phoenix Law, who should be congratulated for a great piece of appellate work on a crucial if unglamorous issue:
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This case may have significant implications across regulatory law, both in respect of environmental issues and otherwise.
The decision strengthens the “public” element of public regulation.
Regulated entities already often have rights of appeal as well as access to judicial review. (And many regulated entities often seem to have “captured” their regulator and have established cosy relationships.)
But members of the public who are unhappy with how the regulator is performing its public duties are now in a stronger position.
No longer can such complainants be palmed-off and-waved away by the regulator with the message that they should just directly sue – or prosecute – the regulated entity bothering them.
No longer can they just be told that they should – at great expense and risk – first exhaust “alternative remedies” and not bother the regulator.
Complainants now have Supreme Court authority for being able to go to court to get regulating public authorities to do their jobs properly.
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There is a great deal of discussion about whether the Supreme Court of the United Kingdom is small-c conservative or not.
But this case, perhaps together with the 2021 Majera case, show that when it comes to the province of judicial power, the Supreme Court will firmly assert and defend the proper role of the courts in our political system.
For not all cases of constitutional importance, limiting what the executive in its various forms can get away with doing and not doing, are glamorous actions about high politics.
Sometimes they are about other, more mundane noxious things.
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Direct links (as Bailii links can be problematic on some apps):
Supreme Court decision: https://www.bailii.org/uk/cases/UKSC/2024/31.html
Northern Irish Court of Appeal decision:
https://www.bailii.org/nie/cases/NICA/2023/15.html
2021 Majera decision:
https://www.bailii.org/uk/cases/UKSC/2021/46.html
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This is one of those cases where a detailed analysis of a court decision is an education to us all. The Supreme Court seems to have delivered a verdict based on real common sense, as well as strict reading of the law. I find this very encouraging- but also believe it should never have come to this. The only reason why outsourced services have proved irresistible to Private Equity investors is the known laxity of UK regulatory regimes. I understand that the court is not in this case able to rule on that very general issue- but somebody needs to do so soon.
This is most encouraging: the “strengthening of the ‘public’ aspect of public regulation”. I am wondering whether other people are thinking of approaching Ofwat on the same lines about its dismal inability to compel the water companies to keep effluent out of both the sea and the responses given by those same water companies to those of us that complain about it – which too often self-satisfactorily rely on the notion that “we’re going over and above what the Regulator requires us to do”. Perhaps not for much longer…
My first thought on reading this was similar: how many claims will OFWAT now receive?
There is a sort of Heisenberg uncertainty principle underlying this case. Agencies have more technical knowledge than courts, but usually less independence from industry capture. (I make an exception for the US Supreme Court, which is more captured than even the agencies.)
Liberal democracies have not yet been able to increase both independence and expertise at the same time. I think Justice Breyer in the US suggested that courts aid themselves with technically-adept special masters. Maybe this could help, although it sounds like rule by professor.
I puzzle about what the practical effect of this legal victory will be.
Surely the last thing a regulator wants to do is regulate in any effective manner – that would cost money and administrative inconvenience. So don’t. Those who live near the Runcorn waste-to-energy site experience a similar problem. If you don’t like living near a rubbish tip – move to Mayfair.
Is anyone going to relocate this rubbish pile somewhere else – certainly not, it was chucked in a convenient quarry because such was there and no other place seemed convenient or cheap. Allegedly this refuse pit is being covered over and the gasses burned for energy. The likely claim will be that within a year the covering up will be complete and any smells ‘merely residual’. So nothing much achieved apart from gingering up the closure.
Cue regulatory authorities employees squeals of anguish “but we thought we had jobs for life with no practical responsibility to anyone.”
Excellent news. Just in time for Ofwat to be abolished.