BREAKFAST CHAT – Challenging States’ decisions

Certain recent controversial decisions of the States, (and in particular their bemusing decision to give the go-ahead to the ever loss-making States Airline to purchase three new ATR aircraft to replace its perfectly serviceable current fleet) have understandably provoked wider questions as to whether there is anything that can be done to challenge States decisions of questionable sense.

The general reactions of ordinary people seem to polarise between an incredulous and frustrated cry “Surely it must be possible to get this decision judicially reviewed?!?” and the equally frustrated but resigned comment that “There’s nothing to be done: the States is Parliament.”

The actual legal position is probably neither clear nor simple. This piece is therefore intended to provide some material for thought and discussion. There is an executive summary of its general tenor, followed, for those who are interested, by more detailed reasoning.

It should be noted that this article is, emphatically, not intended as legal advice, nor should the views expressed be in any way relied upon, or used other than as a subject for thought and discussion. The views expressed are not necessarily the views of the 2020 Association.

Executive summary

  • Where the States makes a decision of an executive or administrative nature, the Royal Court probably has jurisdiction to entertain a challenge by way of Judicial Review.
  • To challenge such a decision on its merits (ie apart from procedural errors) it would be necessary to show either that it was flawed for having been made on a false basis, ie without regard from some matter which should have been taken into account, or taking into account some matter which should not have been, or else that, objectively viewed, it was so unreasonable as to be outside the range of decisions which could rationally or reasonably have been made.
  • Where such a decision involved a disposition of States (ie taxpayers’) assets, even an ordinary person would have the status to bring such a challenge.
  • However, the exercise would be potentially expensive, and if the decision had been acted upon then even if the court pronounced the decision invalid, that would not necessarily undo its consequences.

Judicial review of States decisions?

For those interested in further analysis, first, a little background.

“Judicial review” is a relatively new concept in Guernsey law. Its availability was first recognised only in 1998 in the case of Bassington v H M Procureur. Its development has been slow, but has generally followed English practice.

In England the remedy was the product of judicial law-making which established such a jurisdiction during, in particular, the 25 years following World War II. The availability of some form of judicial review as a legal remedy for the citizen is regarded as a hallmark of a modern civilised and democratic state with an accountable system of government.

The scope of the concept of judicial review is, though, indicated by its full title, which is is “Judicial Review of Administrative Action” Therein lies the clue to its application, or lack of it, with regard to Parliament. Parliament is a legislature and, as such it is sovereign and not amenable to judicial review of its acts.

Judicial review operates in two distinct situations. The first is where a body acts outside the scope of its powers, as correctly interpreted. This simply involves the court deciding, authoritatively, what the legal scope of the particular power is, and whether the decision or action of the body in question is within that power, or outside it (ie ultra vires). This illustrates why the decisions of the UK Parliament enacting law are not subject to judicial review. As Parliament is sovereign, its lawmaking powers are not limited. However, where Parliament has delegated law-making powers to lesser bodies, entitling them to make subordinate legislation such as Statutory Instruments or bye-laws, then even the law-making decisions of those bodies can be challenged on the grounds of being outside the powers delegated to them.

The second situation in which judicial review operates is in relation to the administrative or executive decisions of an authority. There, in addition to the question whether the decision is within the scope of the powers conferred on that body, there is the additional point that, because the body can only use its powers for the purposes for which they are conferred, it is required to take executive or administrative decisions on a proper basis. This means: having regard to material considerations and only to material considerations, and making a decision which is not arbitrary, capricious or irrational, but is within the range of decisions which a reasonable and properly informed decision-maker could reasonably make in all the material circumstances. Offending against this lengthy rubric is referred to, in legal shorthand as being “Wednesbury unreasonable” (a reference to the case in which the principle was first stated). The principle embodies the law’s recognition of the fact that the decision in question has been lawfully confided to the judgement of the particular decision-making body and not to the court, but that, at the same time, there needs to be an ultimate oversight to set aside any flawed or extreme decision which is so capricious or unreasonable that it ought not to be allowed to stand, by any reasonably objective assessment.

How, then, does this all apply to decisions made by the States of Guernsey? Whilst the States is a legislature, it is not a legislature which operates in exactly the same way as the UK Parliament. In particular, it makes many decisions, particular those involving the disposition of States’ assets or funds, which are not the laying down of law, but are in the nature of executive or administrative decisions. In fact, the ATR decision, referred to at the outset, would seem to have been just such a decision.

On that basis, there is no need to think, or to assume, that the Royal Court would have no jurisdiction to entertain a challenge because States decisions were simply not amenable to judicial review at all. If any such decision is apparently taken on a flawed basis, or is so outrageous that it could be described as arbitrary, capricious or irrational, then there seems to be no ground for preventing it from being subject to remedy by judicial review. True, the Court might initially require some persuasion, as the notion of judicially reviewing the States appears rather bold, but it is the nature of the decision under scrutiny which decides, or ought to decide, whether there is any jurisdiction to subject it to judicial review.

As regards who could bring such an application, it is necessary to show a sufficient interest in the subject matter of the case, so as to prevent merely officious complaints. However, if a decision involved the disposition of States’ (ie taxpayers’) assets, then it would seem that any citizen of full age and capacity should be able to assert a sufficient such interest, especially if a taxpayer.

Any such application would naturally have to be made promptly; the courts look with disfavour on applications for judicial review which are made tardily, and this is likely to mean within weeks or, at the most, a very few months, of the decision being made. The exercise would, of course, be likely to be costly. (The costs of litigation generally are probably a whole new and separate subject).

And finally there would be the question whether the court would be prepared to exercise its discretion to grant the remedy and quash the decision under challenge. The court might not do so if it came to the conclusion that the material considered had been incomplete or inaccurate but that the decision would have been the same even without this flaw. More important, perhaps, would be the likely constraints of time. If the decision were to be acted on quickly, then it would be necessary to get the matter before the court urgently, before any consequences became a fait accompli. The court would likely be reluctant to set aside even a defective decision when major transactional consequences had already ensued in reliance upon it.

But the real point, for present purposes, is that there must surely be a mechanism by which the ordinary citizen can seek protection against States decisions involving outrageous and questionable expenditure, and effectively the waste, of taxpayers’ funds.

Let us imagine that our good friends, the Deputies, in a flush of goodwill or general virtue-signalling, decided by a small majority to spend £21Mn of this Island’s financial reserves (enough to buy another new ATR!) on sending overseas aid to Africa, with the justification being that this would enhance Guernsey’s reputation as a “good world citizen”. Can it really be the case that those who took the view that such a decision would be a gross breach of the government’s first duty, that of protecting and improving the lot of its own citizenry and of exercising responsibility akin to the duties of trustees in respect of States assets, and that charity begins at home, would have to sit by and accept, in effect, the giving away of Guernsey’s resources, on the grounds that this was a decision of the States, and was therefore immune from any effective form of review or challenge? Can it really be the case that the populace’s only sanction would be that of forlornly voting the offending Deputies out of office months or even years later, at the next election?

This extreme example surely illustrates that the Royal Court must have some power of review which can be invoked as, at least, a last ditch protection for Islanders against the dissipation or waste of their taxes. And come to think of it, the suggested example may not be as extreme as all that.

Bemused of Torteval.

© 2018 – The 2020 Association

BREAKFAST CHAT

By request, we are providing an irregular series of “talking point” pieces, under the heading of Breakfast Chat.

The intention is to provide talking points to provoke and stimulate discussion amongst our members and like-minded family, associates and friends, and, hopefully even produce a general “conversation”, and the airing of views. Suggestions and contributions are welcome.