The ruling of the
Supreme Court in JR55 raises a host of issues which deserve a much
fuller analysis than can be developed in this post. The best reading of the
case is that its impact is largely isolated to the Northern Ireland Commissioner
for Complaints scheme involved, an ombudsman scheme which closed on 1st
April as a result of the Public
Services Ombudsman Act (Northern Ireland) 2016. In the words of Lord
Sumption who gave the only judgment:
The various [ombudsman] enactments have a strong family
resemblance. But some of them have distinctive features which mean that
considerable caution is required before principles derived from one legislative
scheme can be read across to another. [para.1]
However, the judgment leaves some rich pickings for those
who might want to reopen points of law that had previously been thought
settled.
This post will leave a detailed analysis of the implications
of the case for the ombudsman sector to another time, and focusses instead on a
much wider issue that flows from the judgment. Underpinning the judgment in JR55 is a strategic approach to judicial
reasoning that might be described as textual. In other words, most of the
effort is focussed on interpreting the legislation upon which the
Commissioner’s decisions were based and applying that interpretation to the
facts of the case. By contrast, very little energy, if any, is invested in
factoring into that interpretation the context in which the Commissioner’s
scheme operates or the purposes for which it was created. It might be thought
that the textual approach to judicial reasoning is the safest way to reduce the
potential for judicial activism: namely inappropriate judicial law-making. This
post will illustrate in the context of one case how the textual approach is
equally capable of allowing the judiciary to employ strategies that both facilitate
judicial
activism
and undermine the will of the legislature.
Problematic strategies
JR55 concerned (a)
the legality of a decision of the Commissioner in recommending that a GP pay
£10k compensation to the complainant and (b) the accompanying suggestion that
the Commissioner would consider issuing a special report to the Northern
Ireland Assembly on the matter. The judgment focussed on the interpretation and
application of the Commissioner for
Complaints (Northern Ireland) Order 1996, the correct interpretation of
which had split the lower court judges.
Strategy 1: Be opaque as to the legal grounds deployed
One aspect of the case is clear. Para.30 deals with the
respondent’s challenge to the rationality of the recommendation of £10k which
is described as being ‘plucked out of the air’ and ‘lacking any rational basis’.
The remainder of the judgment, however, slides between a finding that the
Commissioner acted beyond his legislative powers and an implicit suggestion
that the Commissioner had unreasonably used his powers under the Order in this
particular instance. This lack of clarity in the ruling creates a chilling
effect on the future use of the interpreted powers and may invite future
litigation, because it is not always clear when the particular interpretations
being given to the 1996 Order are intended to have wider effect and when not.
Frankly, it would have been much better if the ruling had
been focussed solely around an unreasonableness argument because the one thing
that is clear from the judgment is that the Court did not like the idea of an
individual general practitioner being asked to pay £10k outside of the
safeguards of the court process. Such a line of argument would have reduced the
need for sophisticated, and questionable, efforts to try and come to a clear
meaning of a complex piece of legislation based on discretionary power.
Strategy 2: Imply an interpretation to legislation without fully analysing
the implications
There were several instances in the ruling where the judge
sought to establish a restrictive meaning around the discretionary powers of
the Commissioner through textual interpretation alone. Often this was achieved
by inferring that when read together separate provisions of the 1996 Order led
to a particular conclusion. To give one example, a key part of the ombudsman
process is the initial decision to accept a complaint. Article 9
of the 1996 Order is very similar to equivalent sections in other ombudsman
schemes and states that:
[T]he Commissioner shall not conduct an investigation … in
respect of any action in respect of which the person aggrieved has or had a
remedy by way of proceedings in a court of law. The Commissioner may conduct an
investigation notwithstanding that the person aggrieved has a right or remedy …
if the Commissioner is satisfied that in the particular circumstance it is not
reasonable to expect him or her to resort or to have resorted to it.
Here is a discretionary power the meaning of which
reasonable people can disagree on, and on which the courts have disagreed in
two Court of Appeal cases, Croydon
and Liverpool. The simplest
interpretation is that article 9 leaves the discretion with the Commissioner.
But, citing only Croydon, the ruling in
JR55 read article 9 as imposing restrictions on both the scope of the
complaints that can be accepted and the nature of the remedies that could later
be recommended under article 11. On the facts of the case this interpretation meant
that because the original complaint had not suggested that the complainant
sought a financial remedy, it was unlawful for the Commissioner to recommend a
financial remedy post-investigation.
The degree to which an ombudsman is required to limit the
scope of an investigation according to the facts as known at the time of the
original complaint is a point of law that has received judicial
attention previously, and is contentious.
The Supreme Court though appeared oblivious to this case law or the
potential ramifications of its inquiry in JR55
to other ombudsman schemes and has inferred an interpretation of article 9 (and
its equivalents) which may encourage legal argument in the future.
None of this is to argue that the conclusion of the Supreme
Court was necessarily wrong, but by focussing only on a textual interpretation
strategy the Court dodged having to address alternative legal arguments and has
thereby created uncertainty.
Strategy 3: Use case law selectively
The point made above illustrates another classic judicial activist
technique: if there is a choice of relevant cases to follow, cite only the one
that supports your analysis.
Strategy 4: Brush over contentious points of law
The respondent in the case was a
GP. The Supreme Court in JR55 was
keen to emphasise that due to the way that the 1996 Order operated the
respondent had a more limited legal capacity to resist the recommendations of
the Commissioner than an ordinary public body. Although this train of argument
rather overlooked the fact that the recommendations were non-binding, it was
correct insofar as the 1996 Order channelled different forms of Commissioner
investigation down different avenues. In order to emphasise the point that the
respondent’s legal vulnerability deserved to be treated with respect, the
Supreme Court found that a general practitioner ‘is not a public body, but
merely provides services to a public body under a contract or some other
consensual arrangement’. [para.20]
This conclusion is arguably
correct, but equally the Order is silent on the matter and it is one about
which again reasonable people could disagree. Notwithstanding this background
uncertainty as to what is and is not a public body in law, in JR55 no analysis of the point is
provided or cases cited in support of the ruling. Presumably, the Court were
persuaded by the logic of the House of Lords in the HRA case YL v Birmingham, which
found that a privately run Care Home was not operating as a public body even
though some of its residents were paid for under contract with the local
authority. But
that case can hardly be claimed to have laid down clear rules as what is and
what is not a public body such that argument on the point was not necessary. YL was also a case in which the panel
was split 3/2 for
reasons which revealed stark differences of underlying legal principle,
and led to s.145 of the Health and Social
Care Act 2008 being passed to reverse the ruling as it applied to care
homes. Even if we treat the finding only as obiter, there cannot be a starker
example of judicial activism than this perfunctory treatment of an important
point of law.
Strategy 5: Over simplify the law and the facts
Judges are required to apply the law, faithfully, to the
facts and explain their reasoning. Article 11(b)(i) of the 1996 Order states
that the Commissioner may attempt to effect a settlement of the matter
complained of and then at (b)(ii):
… if that is not possible … state what action should in his
opinion be taken by the body concerned … to
effect a fair settlement of that matter …
… the power is not relevant here, because the Complaints
Commissioner never sought to operate the settlement procedure.
Perhaps this is an appropriate conclusion to draw from what
occurred, but it rather ignores significant evidence to the contrary, as raised
at the lower stages of the case. What ‘settlement procedure’ the ruling
requires to be met is not explained, but one can only presume that the usual
process of communication between an ombudsman and the investigated body is
insufficient.
Conclusion
Triggered in part by a few instances of bold constitutional
judgments, the Human Rights Act and a series of speeches by senior judges,
including several
by Lord
Sumption, a powerful and important
debate is underway concerning the appropriate levels of restraint that the
judiciary should exercise when resolving a case, one which has echoes of a
parallel debate in the USA. A key scenario in which this debate becomes live is
when a judge is required to interpret discretionary power, as conferred by
legislation. This scenario gives rise to a number of common risks when the
judiciary venture too far from literal interpretations of legislation, as this
may result in the judiciary giving meaning to the law without due consideration
to the consequences of the interpretation applied. If a judge attempts to interpret
legislation to confine discretionary power he/she
needs to bear in mind that the court is frequently in an inferior position to
the primary decision-maker to balance up the wider public interest with that of
the needs of the individual case. These, and other, institutional risks suggest
that the judiciary should avoid the temptation to over interpret legislation as
it surreptitiously draws the court into the role of adjudicating the merits of the case,
contrary to the wishes of the legislature, under
the guise of under-analysed textual premises.
It is sometimes advocated that the solution to judicial
activism is to require the judge to focus on textual interpretations of
legislation rather than attempt a deeper examination of the purposes that lie
behind legislation. The ruling in JR55 demonstrates
that this approach is too simplistic and disguises multiple pitfalls. In JR55, rather than conceding that the
legislation conferred discretionary power on the Commissioner, the Court
allowed itself to be drawn into making interpretative choices which were
eminently defensible on a first reading, but on a deeper examination failed to
concede viable alternative interpretations or factor in the potential knock-on
consequences of the interpretations that were made. This is a form of judicial
overreach that needs to be included within any activism/restraint debate.
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