⇒ In exercising public power, a public body will often have discretion as to whether and how those powers are to be used.

⇒ The courts have sought to recognise that it is the public body and not the courts that have been conferred discretion (i.e. choice). That said, the discretion must be exercised lawfully (so there are parameters to their jurisdiction)

⇒ When a public body acts (or fails to act), the courts will not apply one standard of scrutiny in respect of that public body’s decision - the standard of scrutiny varies depending on the circumstances of the case

⇒ Often, the court declines to interfere with a decision because the court defers to the decision-making of the public body.

• In other words, the court will accept the decision of the public body

⇒ Often the court does not use the word deference when it happens (as in the GCHQ case)

⇒ These notes consist of four cases on deference…

• Council of Civil Service Unions v Minister for the Civil Service [1985] (GCHQ case)
• R (Corner House Research) v Director of the Serious Fraud Office [2009]
• R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986]
• R (Javed) v Secretary of State for the Home Department [2001]

⇒ The Prime Minister (Thatcher) changed the terms and conditions of employment for workers at GCHQ (security service for intelligent gathering), such as to preclude the possibility of them going on strike. This was done using the prerogative without consultation with the unions. Thatcher claimed that the national security context (the vulnerability of the UK might be in if staff at GCHQ were to go on strike) necessitated or justified her actions, and that such decisions based on national security considerations are for her - not the courts - to make

⇒ The court agreed

• Lord Roskill said that in some areas (such as national security) “the courts must accept that the claims of executive power must take precedence over those of the individual” → this is deference

⇒ One interpretation of the case is that any national security context presented in court in judicial review proceedings will necessarily lead to the claim failing. This is not an accurate reading of the ratio of the decision, but it is certainly true that the invocation of national security makes a claim in judicial review considerably more difficult for the claimant (e.g. Bancoult No 2).

⇒ The SFO were investigating allegations of corruption at BAE Systems, in respect of a major arms deal with the Saudi Arabian Government. The investigations were high profile and well reported; the Saudi Government threatened the UK Government to drop the criminal investigation or otherwise lose their cooperation on global counter-terrorism. As if by magic, the SFO’s investigations were dropped

• The claimants (Corner House Research) brought proceedings in judicial review on the grounds that the decision to drop the investigation was unlawful, for allowing the Saudi threat to influence the SFO’s discretion.

⇒ In spite of the heavy national security context, the Administrative Court (High Court) agreed:

• “The courts fulfil their primary obligation to protect the rule of law, by ensuring that a decision-maker on whom statutory powers are conferred, exercises those powers independently and without surrendering them to a third party.” (High Court, at [67] Moses LJ).

⇒ On appeal to the House of Lords, the SFO’s appeal was allowed

• The House of Lords ruled that the decision to cease investigations, given the specific threat that goes to national security, was one that the SFO was lawfully entitled to make (so Moses LJ’s decision in the High Court is no longer good law)

⇒ Although the claimant in R (Corner House Research) v Director of the Serious Fraud Office [2009] was ultimately unsuccessful, the case represents a shift in thinking about national security and the extent to which these considerations might negate what would otherwise be a successful claim in judicial review (see the GCHQ case, for example)

• The attention of the courts in R (Corner House Research) is on whether the official directed his mind to appropriate, relevant and lawful considerations (which can include national security interests). If he did, there is no obvious basis on which to interfere with his decision

⇒ This does not change the effect of GCHQ: the national security context will often trump other considerations (the rights of the individual, in Lord Roskill’s terms).

• But it is not open to the official to simply cite national security reasons in order to ‘get away with it.’ He must show that he retained discretion and directed his mind lawfully (Corner House Research)

⇒ A public body that the courts traditionally ‘defer’ to is Parliament.

⇒ Because Parliament is sovereign and supreme, the courts cannot judicially review an Act of Parliament.

• But what if, for example, a Minister decides something, which, in a resolution, not an Act, is approved by the House of Commons? Can this be judicially reviewed? → see R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] below

⇒ Government policy - particularly where it has been subject to parliamentary scrutiny - will rarely give rise to interference by the courts.

• This deference is ‘due deference’ because Parliament is the appropriate body to scrutinise central government policy
• However, that does not prevent interference by the courts in all cases, as seen in R (Javed) v Secretary of State for the Home Department [2001]

⇒ The Minister produced a report on local authority funding, which was approved by the House of Commons in a vote (not an Act of Parliament). The report was implemented, allowing for central government contributions to local authorities to be determined with reference to the financial prudence of the local authority in the previous financial year

⇒ Nottinghamshire CC (the claimant) was a local authority whose finances were not in the best shape. They would stand to lose a significant portion of their income with these new changes - no doubt worsening their financial position. They sought to judicially review the implementation of the report by the Minister

⇒ The claim ultimately failed:

• “I can understand that there may well arise a justiciable issue… but I cannot accept that it is constitutionally appropriate, save in very exceptional circumstances, for the courts to intervene on the ground of ‘unreasonableness’ to quash guidance framed by the Secretary of State and by necessary implication approved by the House of Commons” (per Lord Scarman)
• In other words, Lord Scarman said the court should be reluctant to intervene because of the context

⇒ The Minister sought to implement a new procedure in relation to immigration and claims for asylum. Countries would be placed on a ‘white list’ if they were designated ‘safe’—that is, where the return of a failed asylum seeker would pose no risk of treatment contrary to Article 3 ECHR (inhumane and degrading treatment or torture). This would allow for the swift return of failed asylum seekers from these countries

⇒ The Minister sought to include Pakistan on the ‘white list’ of safe countries. The House of Commons approved a resolution placed before it which, amongst other things, placed Pakistan on the ‘white list’ meaning that any failed asylum seeker from Pakistan could be returned without legal barrier (specifically those barriers relating to Article 3 ECHR).

⇒ The claimant was an Ahmadi woman whose claim for asylum was rejected. Before she could be deported to Pakistan, she sought judicial review of the Minister’s decision to include Pakistan on the ‘white list.’ She argued that as an Ahmadi woman she faced specific threats to her wellbeing that had not been taken into account when the decision was made to deem Pakistan ‘safe’ for the purposes of deportation

⇒ Her claim was successful, and confirmed on appeal to the Court of Appeal. Even though both Houses of Parliament affirmed the Minister’s decision by resolution, the decision (which in law is the Minister’s) could be judicially reviewed on all grounds of review.

• Lord Phillips MR (as he then was) gave a powerful judgment dismissing the Minister’s arguments and seeing no difficulty in treating the resolutions of both Houses as relevant but not decisive - in particular, Lord Phillips scrutinised what debate had taken place in Parliament. Since the debate did not cover the position of Ahmadi women in Pakistan, the deference due to Parliament would be altered accordingly.

⇒ Rarely in these cases is the word ‘deference’ used; the courts try to account for their decisions in such a way that it leaves the possibility of judicial review open. Modern thinking on deference (e.g. Javed, Corner House Research) does not maintain a list of items or areas of public life that are routinely deferred (cf. Lord Roskill in GCHQ), but instead scrutinises the processes by which decisions are made—and consequently their legality.

⇒ That said, it cannot be denied that national security concerns, and the policy of central government (approved by Parliament), are two contexts that make judicial review difficult but never impossible.

⇒ When might the court defer to the judgement of public bodies?

• When it is to do with national security
• A policy of central government when it has been approved by the House of Commons
• When there is a domestic/local jurisdiction
• Determination of facts

⇒ What is ‘due deference’?

• Where court declines to review decision of the executive
• They adhere to the original decision on the grounds that the original decision was necessary e.g. national security/parliament