International Court of Justice and UN General Assembly do not alter the outcome of the Chagos Islands challenge
The Bloomsbury Institute (“Bloomsbury”) is a private education provider that offers business, law and accountancy courses and reinvests its profits in its college. Most of its students are mature, and many are from disadvantaged and ethnic minority backgrounds. It is an ‘Alternative Provider’ because it does not receive direct grant funding like traditional universities. Alternative Providers have to be registered with, and ‘designated’ by, the Office for Students (“OfS”) (the regulator for all higher education in England). Bloomsbury applied for registration, but its application was refused due to its performance against certain criteria.
Bloomsbury unsuccessfully challenged this refusal in the High Court but has now won its appeal. If its judicial review had failed, Bloomsbury might not have survived financially because, unless it was ‘designated’, its students would generally have been ineligible for student loans. Bloomsbury would only have been able to take on new UK students who were wholly self-funded. Now that the OfS decision has been quashed, Bloomsbury may still have a fight on its hands, but it can continue to press its case. The OfS, meanwhile, has an opportunity to tighten its approach to delegation and to make sure its policies are transparent and reflective of appropriate consultation.
Bloomsbury’s appeal was argued on three grounds:
The OfS is responsible for the registration and ‘designation’ of Alternative Providers. Under the Higher Education and Research Act 2017, the OfS must consult on and publish a regulatory framework containing the initial conditions that higher education providers must meet if they are to be registered. Under the regulatory framework published in February 2018, category B conditions were those concerning quality, reliable standards and positive outcomes for students. One of these was whether a provider was “securing successful outcomes for all its students” (“Condition B3”). The relevant thresholds in the Secret Guidance related to how Condition B3 would be applied.
In April 2018, the OfS produced the Scheme of Delegation, reserving various matters, including “changes to the regulatory framework”, to the OfS Board. Under the Scheme of Delegation, authority to make certain registration decisions was delegated to the Provider Risk Committee of the OfS. Around that time, the Director of Competition and Registration prepared the Secret Guidance.
Bloomsbury then applied to the OfS for registration. Having considered the matter, the Provider Risk Committee decided that, on the basis of unsatisfactory performance against two criteria relevant to Condition B3, Bloomsbury should receive an ‘intention to refuse registration’ letter. This provisional decision was issued in January 2019. The criteria on which Bloomsbury was said to have underperformed were continuation rates from year 1 to year 2, and progression rates to professional employment or postgraduate study. Bloomsbury made representations, but the OfS confirmed its decision to refuse registration in May 2019.
The Court of Appeal considered each of the three grounds of challenge listed above and its conclusions were as follows:
Bloomsbury argued that, if a public body has a scheme for delegating statutory decision-making, decisions must be taken by the person to whom the relevant function has been delegated. The OfS had not delegated certain policy decisions reflected in the Secret Guidance to the Director of Competition and Registration. These were changes to the regulatory framework reserved to the OfS Board. It was common ground that the Secret Guidance had been considered and noted, but never approved, by the Provider Risk Committee. The Secret Guidance was never considered by the OfS Board.
The Court of Appeal considered it to be well established that a public body can choose to whom it delegates delegable functions, and the courts will only intervene if the choice is irrational or beyond the public body’s powers. The OfS could legitimately have delegated all relevant matters to the Director of Competition and Registration, but it had not done so. The Scheme of Delegation was not the sort of document to be subjected to fine analysis, but it did need to be interpreted objectively and without speculation. The aspect of the Secret Guidance that crossed the line into being a change to the regulatory framework was the Director of Competition and Registration’s decision to make little allowance for the presence in the student population of certain providers, such as Bloomsbury, of significant numbers of students disadvantaged by socio-economic factors or having left school without A-levels. The court considered that this was clearly a policy decision of the sort reserved to the OfS Board.
Because the Director of Competition and Registration had not been delegated the power to make such policy decisions, the refusal of Bloomsbury’s application for registration in line with the Secret Guidance was rendered unlawful.
Bloomsbury argued that any internal guidance setting out how decision-makers should exercise their discretionary powers must be published; that individuals have a right to know what policy is applicable to their case, so they can make representations on it; and that decision-makers are obliged to follow published policies unless there are good reasons for departing from them. There was argued to be a statutory, as well as a common law, duty to publish any part of the Secret Guidance that affected how the OfS’s discretion would be exercised. By the time the Court of Appeal heard Bloomsbury’s claim, the relevant parts of the Secret Guidance had in fact been published (in October 2019). The OfS nevertheless maintained that it had been under no obligation to publish.
In addition, Bloomsbury argued that the OfS was obliged to consult on policy decisions about how Condition B3 would be assessed, including the matters in the Secret Guidance referred to above. This was said to arise under legislation and the common law. The requirements of fairness were said to be particularly exacting in this case because it involved depriving Bloomsbury of an existing benefit (since Bloomsbury had been registered under the previous system for many years).
The Court of Appeal reviewed past cases and noted that the test that might normally have to be met in order to successfully challenge a consultation exercise (a “finding that something has gone clearly and radically wrong”) has little application where the policy in question has been kept secret. In such cases, the issue is not that something has gone wrong in the consultation, but that insufficient information has been provided to allow informed and meaningful consultation to occur at all. The Secret Guidance was not revealed to higher education providers, so Bloomsbury and others in a similar position had no opportunity to comment on it. The published regulatory framework concerning Condition B3 was silent on the policy in the Secret Guidance to make little allowance for the presence of large numbers of disadvantages students. This should have been consulted on and, at least under the Scheme of Delegation, approved by the OfS Board. The failure to do these things also rendered the refusal of Bloomsbury’s application for registration unlawful.
Bloomsbury argued that one stage of the evaluation process, relating to ‘demographic group threshold analysis’ was irrational, including because it yielded perverse results and obscured certain factors affecting student outcomes. Lord Justice Bean did not need to decide the point, but said he found the OfS’s explanation “very hard to follow; and I believe that I was not alone in that respect”.
This case is a useful reminder of two elementary public law principles relevant to all public bodies charged with making discretionary administrative decisions (and those affected by such decisions).
First, public bodies can choose to whom they delegate delegable functions, but are then bound to follow the scheme they have put in place. It is essential that schemes of delegation are unambiguous and easily understood so they can be followed correctly.
Second, it is important that public bodies are mindful of when proposed, or actual, policies need to be promulgated. This is particularly so if statutory transparency and publication obligations apply. The requirements for lawful consultation will be difficult (if not impossible) to meet if important matters relevant to the subject matter of the consultation are kept secret.
Kingsley Napley LLP regularly represents parties in judicial review challenges. Our lawyers also blog regularly about public law matters. Follow our Public Law blog for the latest commentary.
Nick Wrightson is a Senior Associate in our Public Law team. Nick has an administrative and public law practice focused on judicial review litigation and supporting clients through public inquiries. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.
Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.
As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
Skip to content Home About Us Insights Services Contact Accessibility