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||Neutral Citation Number:  EWHC 2579 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||17 July 2012
B e f o r e :
MR JUSTICE SINGH
||THE QUEEN ON APPLICATION OF CHILD POVERTY ACTION GROUP
||SECRETARY OF STATE FOR WORK AND PENSIONS
||SECRETARY OF STATE FOR EDUCATION
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Mr Richard Drabble QC (instructed by Child Poverty Action Group) appeared on behalf of the Claimant
Mr Paul Nicholls QC (instructed by Legal Department, Department for Work and Pensions ) appeared on behalf of the First Defendant
The Second Defendant was not represented, did not attend
HTML VERSION OF JUDGMENT
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MR JUSTICE SINGH:
- Permission to bring this claim for judicial review was granted by Mr Justice Bean on 11 November 2011. The claimant is a well-known charity founded in 1965 with a long history of involvement in both campaigning to help disadvantaged people in this country, especially children, and in test cases.
- The claimant's challenge is to a strategy document published on 5 April 2010 called "A new Approach to Child Poverty: Tackling the Causes of Disadvantage and Transforming Families' Lives".
Child Poverty Act 2010 as enacted
- Section 1 of the Child Poverty Act 2010 provides:
"(1) The Secretary of State must, as soon as reasonably practicable after the end of the 2010 target year and in any event not later than 30 June 2012, lay before Parliament a report on whether the 2010 target has been met.
(2) The 2010 target is that in the financial year beginning with 1 April 2010, 1.7 million children or fewer live in qualifying households in the United Kingdom that fell within the relevant income group for the purposes of section 3 (the relative low income target).
(5) If the target has not been met, the report must explain why it has not been met.
(6) The 2010 target year is the financial year beginning with 1 April 2010."
- Section 2 of the Act imposes a duty on the Secretary of State to ensure that the following targets are met in relation to the United Kingdom in relation to the target year:
(a) the relative low income target in section 3,
(b)the combined low income and material deprivation target in section 4,
(c) the absolute low income target in section 5, and,
(d) the persistent poverty target in section 6.
(2) The target year [for this purpose] is the financial year beginning with 1 April 2020."
- Section 3, as we have seen, defines the relative low income target. That is to be -
"(1) ..... that less ten per cent of children who live in qualifying households live in households that fall within the relevant income group."
The relevant income group is defined to be a household where -
"(2) ..... if its equivalised net income for the financial year is less than sixty per cent of median equivalised net household income for the financial year."
- The interpretation in Section 7 (3) explains that -
(3) In this Part 'equivalised', in relation to household income, means adjusted to take account of variations in household size and composition."
- Section 4 refers to the combined low income and material deprivation target. That target is -
"(1) ..... that less than five per cent of children who live in qualifying households -
(a) live in households that fall within the relevant income group, and
(b) experience material deprivation."
For this purpose -
" ..... a household falls within the relevant income group ..... if its equivalised net income ..... is less than seventy per cent of median equivalised net household income for the financial year."
- Section 5 relates to the absolute low income target which is -
"(1) ..... that less than five per cent of children who live in qualifying households live in households falling within the relevant income group."
For this purpose -
"(2) ..... a household falls within the relevant income group ..... if its equivalised net income ..... is less than sixty per cent of the adjusted base amount.
(3) 'The adjusted base amount' ..... is the base amount adjusted in a prescribed manner to take account of changes in the value of money since the base year.
'the base amount' means the amount of median equivalised net household income for the base year;
'the base year' means the financial year beginning with 1 April 2010."
- Finally in relation to the targets, reference should be made to Section 6 which relates to the persistent poverty target. This is -
"(1) ..... that less than the target percentage of children who have lived in qualifying households during each of the survey years have lived in households that have been within the relevant income group in at least three of the survey years.
(2) The survey years are —
(a) the calendar year that ends in the relevant financial year, and
(b) the three previous calendar years.
(3) For the purposes of this section, the target percentage is a percentage to be prescribed by regulations made before 2015.
(4) For the purposes of this section, a household falls within the relevant income group ..... if its equivalised net income for the year is less than sixty per cent of median equivalised net household income for the year."
- Section 8 of the 2010 Act provided that -
"(1) There is to be a body called the Child Poverty Commission .....
(2) The Commission's functions are those conferred on it by or under this Act.
(3) Schedule 1 contains further provisions about the Commission.
(4) The Secretary of State may by order provide for the Commission to cease to exist on a day —
(a) specified in or determined in accordance with the order, and
(b) falling after the target year.
- Before leaving that provision, it is important to observe that, although the Secretary of State was given an express power to provide for the Commission to cease to exist, he was not given power, for example, by order or other subordinate legislation to delay its coming into existence or indeed to decide that the Commission should never come into existence.
- Schedule 1, as indicated by Section 8 (3), made more detailed provision in relation to the Child Poverty Commission which Parliament ordained should be established. One finds in Schedule 1 the sort of matters going to its membership and appointment and terms of office that one would expect to find in such legislation. Particular attention was drawn on behalf of the claimant to paragraph 1 (4) of Schedule 1 which provides that -
"(1) The Secretary of State must have regard to the desirability of securing that the Commission (taken as a whole) has experience in or knowledge of -
(a) the formulation, implementation and evaluation of policy relating to child poverty;
(b) research in connection with child poverty; and
(c) work with children and families experiencing poverty."
Attention was also drawn to paragraph 10 which enabled the Commission -
"(10) ..... at any time [to] request the Secretary of State to carry out, or commission others to carry out, such research on behalf of the Commission for the purpose of the carrying out of the Commission's functions as the Commission may specify in the request."
- It was also submitted on behalf of the claimant that an important provision can be found in paragraph 17 of Schedule 1, in particular (3), which provides that as soon as reasonably practicable after giving advice under either of those sections referred to, which includes Section 10 to which I will return, the Commission "must publish the advice in such manner as it thinks fit." That requirement for publication is something which has been emphasised on behalf of the claimant before me.
- I return to the main body of the 2010 Act. Section 9 has the sidenote "UK Strategies" and provides:
"(1) The Secretary of State must, before the end of the period of 12 months beginning with the day on which this Act is passed, publish and lay before Parliament the first UK strategy.
(2) A 'UK strategy' is a strategy under this section setting out the measures that the Secretary of State proposes to take —
(a) for the purpose of complying with section 2 (duty to ensure that targets are met), and
(b) for the purpose of ensuring as far as possible that children in the United Kingdom do not experience socio-economic disadvantage.
(4) Before the end of the period to which a UK strategy relates, the Secretary of State must review the strategy and publish and lay before Parliament a revised UK strategy, but this subsection does not apply after the beginning of the target year.
(7) A UK strategy must —
(a) where it relates to a period ending before the end of the target year —
(i) describe the progress that the Secretary of State considers needs to be made by the end of the period to which the strategy relates if the targets in sections 3 to 6 are to be met in relation to the United Kingdom in relation to the target year, and
(ii) describe the other progress that the Secretary of State intends to make by the end of the period to which the strategy relates in achieving the purpose mentioned in subsection (2) (b), and
(b) describe the progress that the Secretary of State intends to make by the end of the target year in achieving the purpose mentioned in subsection (2) (b), otherwise than by ensuring that the targets are met.
- Section 10 provides that -
"(1) In preparing a UK strategy, the Secretary of State must request the advice of the Commission, and specify in the request the date by which the advice is to be given.
(3) The Secretary of State must have regard to any advice given by the Commission under this section.
(4) In preparing a UK strategy, the Secretary of State —
(a) must consult such local authorities and associations of local authorities in England as the Secretary of State thinks fit,
(b) must consult the Scottish Ministers, the Welsh Ministers and the relevant Northern Ireland department,
(c) must consult such children, and organisations working with or representing children, as the Secretary of State thinks fit,
(d) must consult such parents, and organisations working with or representing parents, as the Secretary of State thinks fit, and
(e) may consult such other persons as the Secretary of State thinks fit.
Welfare Reform Act 2012
- The Child Poverty Act 2010 has been amended by the Welfare Reform Act 2012. I will refer to the key provisions which have been amended and which are material to the present proceedings. The 2012 Act received royal assent on 8 May 2012. Relevant provisions came into force on that date. However they were not given, as they might have been in principle, any retrospective effect. A new Section 8 has been substituted into the 2010 Act. Section 8 now provides that there is to be a body called "The Social Mobility and Child Poverty Commission". This Commission's functions are those conferred on it by or under the Act and Schedule 1 contains further provision about the Commission. It is not necessary to set out in detail the provisions of Schedule 1. However, it should be noted that a new schedule 1 consisting of paragraphs 1 to 15 has replaced the old schedule 1. In particular, for example, the old paragraph 17 is no longer in schedule 1.
- Turning again to the body of the Act, a new section 8A is inserted into the 2010 Act. This provides that the Commission must, on request, give advice to a Minister of the Crown about how to measure socio-economic disadvantage, social mobility and child poverty. It also provides that advice given under this section must be published. Section 8B provides for annual reports to be published by the Commission setting out its views on the progress made towards the goals in sub-section (2). Those goals are -
"(a) improving social mobility in the United Kingdom, and
(b) reducing child poverty in the United Kingdom and, in particular -
(i) meeting the targets in sections 3 to 6, and
(ii) implementing the most recent UK strategy."
Sub-section (6) provides that the Minister of the Crown must lay a report by the Commission under that section before Parliament.
- Section 9 of the 2010 Act has been amended so far as material so that sub-section (7) no longer uses the word "progress" but instead requires that -
"(7) A UK strategy must -
(a) where it relates to a period ending before the end of the target year -
(i) describe the measures that the Secretary of State considers need to be taken by the end of the period to which the strategy relates if the targets in sections 3 to 6 are to be met in relation to the United Kingdom in relation to the target year; .....
- Another very important thing to note about the amendments to the 2010 Act made by the 2012 Act is that section 10 (1), which required advice to be taken from the old Commission in the process leading up to the formation of a United Kingdom strategy, has been repealed.
- The claimant's challenge raises two main grounds: (1) whether the strategy published on 5 April 2010 was in accordance with the requirements of section 10 (1) of the Act of 2010; (2) whether the strategy was in accordance with the requirements of section 9 (7) of that Act.
- A further issue may arise - and was the subject of some argument both in writing and at the hearing before me - as to remedies. If either or both of the claimant's grounds succeed, the issue may arise as to what remedy, if any, should be granted by the court in the exercise of its discretion.
The Claimant's First Ground
- The claimant points out that the Child Poverty Act received royal assent on 25 March 2010 and that most of its provisions came into force on that date. It required publication of the first UK strategy within twelve months, in other words by 25 March 2011. Although the Act did not expressly lay down a timetable for the creation of the Child Poverty Commission, the claimant submits that it was a necessary implication of the Act, read as a whole, that the Commission had to be in existence within a reasonable time in order to allow the first UK strategy to be published by the due date, because section 10 (1) required the Secretary of State to take advice from that Commission before publishing his strategy and laying it before Parliament by the due date.
- On behalf of the defendants in this case there has been placed before the court a witness statement by Caroline Crowther, who is acting head of the Child Poverty Unit, a joint unit working, as she explains, to three Departments of State: the Department for Work and Pensions, the Department for Education and HM Treasury. At paragraph 7 of Ms Crowther's witness statement it is said:
"The coalition government which was formed in May 2010 published its programme which included a commitment to 'maintain the goal of ending child poverty in the UK by 2020."
It did not, however, contain any discussion of other aspects of the 2010 Act, such as the Child Poverty Commission.
- At paragraph 8 of her witness statement, Ms Crowther says:
"In June 2010 the Minister for the Cabinet Office, Francis Maude, wrote to the Secretary of State for Work and Pensions and the Secretary of State for Education about the Government's review of non-departmental public bodies. The principles of that review were outlined as follows:
1 If a public function is needed then it should be undertaken by a body that is democratically accountable at the national or local level;
2 A body should only exist at arm's length from government if it meets one of the three following requirements -
(a) it performs a technical function;
(b) its activities require political impartiality; or
(c) it needs to act independently to establish facts."
- At paragraph 9 of her witness statement Ms Crowther states that the Ministers responsible for establishing the Child Poverty Commission were asked to consider whether that Commission met those requirements.
- At paragraph 10 she states that during the scrutiny process that followed Ministers raised a range of other issues regarding the Commission. These included whether it should have a remit extending to related issues such as social mobility and children's life chances. It is worth quoting paragraphs 11 to 13 in full:
"11 A ministerial meeting attended by child poverty ministers was held on 26 October 2010 to discuss all of these issues. At that meeting it was agreed between Ministers that instead of the Child Poverty Commission there should be an independent body with a remit to measure progress against the Government's strategy on child poverty and life chances, acknowledging the coalition government's broader approach to the issue of child poverty. Ministers also agreed that the strategy itself should be the responsibility of ministers with the result that the independent body should not play a role in developing it. Ministers acknowledged that establishing the new body instead of the Child Poverty Commission would require amendment of the Child Poverty Act.
12 Ministers also acknowledged that these changes would mean that the original Child Poverty Commission would not be established. The implication of this was that there would not be a commission established which could provide advice on the first child poverty strategy before it was due for publication in 2011. Ministers agreed that it was better and more efficient to wait and set up the new body whilst the necessary legislation was passed than to set up the original Child Poverty Commission for the short period until the new legislation was passed. It was agreed that Ministers could defend this decision on the basis that the new legislation would be drafted before the publication of the Child Poverty Strategy, thus making the Government's intentions clear.
13 As a result of these decisions the Child Poverty Commission did not exist when the Secretary of State was preparing the UK Child Poverty Strategy and so the Secretary of State could not request advice from the Commission."
- I regard that passage as an admirable example of compliance with the duty of candour which, as is well known, is owed by public authorities to this court in judicial review proceedings, especially after permission has been granted. I will return to its legal significance later.
- Before leaving the witness statement of Ms Crowther I should make brief reference to a number of other passages. I note in particular, without setting them out here, paragraphs 14 and 15 and also paragraphs 21 to 24 in a section headed "The Commission - Mitigation".
- It is important to recall certain fundamental constitutional principles. The first is that under our constitutional system the executive has no power to make law save in those circumstances where it is granted power to do so by primary legislation. As has often been observed, the executive enjoys no sovereignty. Reference can be made, for example, to X Ltd v Morgan Grampian Ltd  1 AC 1 48, where Lord Bridge of Harwich said:
"The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations, the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law."
- The executive is perfectly entitled to invite Parliament to change primary legislation. It may, if there is an urgent need to do so, invite Parliament to legislate very quickly, for example by way of a paving Act.
- However the executive enjoys no power to amend or repeal primary legislation in the absence of delegation by Parliament itself. In the present context, however meritorious the new Government in 2010 may have thought its proposed replacement commission might be, it was not entitled, in my judgment, to pre-empt any primary legislation that Parliament might or might not pass in the future if so invited. The fact is that, as things stood in 2010 and early 2011, Parliament had enacted primary legislation requiring the establishment of the Child Poverty Commission and requiring the Secretary of State to take advice from it before publishing the strategy and laying it before Parliament, something which had to be done within twelve months of the enactment of that Act. That is something which government ministers decided consciously and as a matter of policy not to do. The new Government may have had good reason to adopt a different policy from that of the previous government. However, in my judgment, they were not entitled as a matter of law to ignore, or to fail to comply with, primary legislation as laid down by Parliament itself.
- It must be stressed again that the executive is not the same as Parliament. Under our constitution, Ministers are usually members of either House of Parliament and, indeed, by convention, are expected to become a member if they are not one already. However, HM Government is not the same constitutional entity as the Queen in Parliament.
- In my judgment there was a clear breach of section 10 (1) of the Act of 2010. This was the result of a deliberate decision by Ministers not to establish the Commission. It might have been different if, for example, a genuine attempt had been made to establish the Commission but it had proved impossible to find suitably qualified members or something of that sort. In such different circumstances the failure to comply timeously with the requirement to publish and lay before Parliament the relevant UK Strategy might have been seen in a different light. But those are not the circumstances which are candidly described in Ms Crowther's witness statement in the passage which I have already read.
- However, the Secretary of State submitted that this was not a material procedural error and that Parliament could not have intended it to vitiate the vires of the Secretary of State to produce the Strategy. In this context reliance was placed in particular on the decision of the House of Lords in R v Soneji  1 AC 340. The main opinion was given by Lord Steyn; it is necessary to refer to certain passages in that and in the concurring opinion of Lord Rodger of Earlsferry. At paragraph 14 Lord Steyn said:
"14 A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply. It has been the source of a great deal of litigation. In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement is mandatory, a failure to comply with it invalidates the act in question. Where it is merely directory, a failure to comply does not invalidate what follows. There were refinements. For example, a distinction was made between two types of directory requirements, namely (1) requirements of a purely regulatory character where a failure to comply would never invalidate the act, and (2) requirements where a failure to comply would not invalidate an act provided that there was substantial compliance ..... "
- Lord Steyn then considered relevant authorities, both from this jurisdiction and elsewhere in the Commonwealth. In particular he noted the changing emphasis to be found in London & Clydeside Estates Ltd v Aberdeen District Council  1 WLR 182, in particular the opinion of Lord Hailsham of Marylebone LC (at pages 189 to 190).
- Lord Steyn also noted a very important judgment of the High Court of Australia (see paragraph 21 of Lord Steyn's opinion). That decision of the High Court was in Project Blue Sky Incorporated v Australian Broadcasting Authority  194 CLR 355, in particular paragraph 93 in the joint judgment given by Justices McHugh, Gummow, Kirby and Hayne. In that passage those justices expressed the opinion that the 'continued use of the elusive distinction between directory and mandatory requirements' and a division of directory acts into those which have substantially complied with a statutory command and those which have not were classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory in their view records a result which has been reached on other grounds. That classification is the end of the inquiry, not the beginning. A better test (they suggested) for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. At paragraph 23 of his opinion, Lord Steyn expressed agreement with the High Court of Australia. And the Secretary of State invites me also to apply the test which Lord Steyn, approving the High Court of Australia, laid down.
- Ultimately, as Lord Steyn said, the question is one of statutory construction. The emphasis, as he said, ought to be on the consequences of non-compliance and posing the question whether Parliament can fairly be taken to have intended total invalidity.
- In Soneji at paragraph 30, Lord Rodger of Earlsferry gave a homely example to illustrate the proposition. He imagined a scenario where a person's young daughter wants to go out with friends for the evening and her parent agrees but tells her that she must be home by 11 o'clock. She is under a duty to return by then but this does not mean that her duty is to return by then or not at all. Rather, even if she fails to meet the deadline, she still remains under a duty to return home. On the other hand, if a person contracts with a conjuror to perform at their daughter's birthday party, they want the conjuror and his tricks only for that party. His duty is accordingly limited to performing at the party held on the daughter's birthday. If he fails to turn up then and there, he cannot discharge the duty later.
- On behalf of the claimant, an analogy was sought to be drawn with the decision of the Court of Appeal in Howker v Secretary of State for Work and Pensions  ICR 405. In that case the applicant was exempted by Regulation 27 (b) of the Social Security (Incapacity for Work) General Regulations 1995 from the all work test and had thereby been entitled to incapacity benefit since 1994. The relevant statutory provision which was considered by the court in that case was section 174 of the Social Security (Administration) Act 1992 which provided:
"(1) The Committee shall consider any proposals referred to it by the Secretary of State under section 172 above and shall make to the Secretary of State a report containing such recommendations with regard to the subject matter of the proposals that the Committee thinks appropriate.
(2) If after receiving a report of the Committee the Secretary of State lays before Parliament any regulations or draft regulations which comprise the whole or any part of the subject matter of the proposals referred to the Committee, he shall lay with the regulations or draft regulations a copy of the Committee's report and a statement showing —
(a) the extent (if any) to which he has, in framing the regulations, given effect to the Committee's recommendations; and
(b) in so far as effect has not been given to them, his reasons why not."
- The claimant relied in particular on paragraph 29 in the judgment of Lord Justice Peter Gibson:
"I summarise Mr. Drabble's arguments as follows:
(1) the Commissioner has the same jurisdiction to rule on the validity of the new Rule 27 as the Administrative Court on an application for judicial review, and can exercise that jurisdiction notwithstanding that the three-month period normally applicable for judicial review proceedings in the Administrative Court has expired;
(2) the statutory procedure for making regulations in the social security field requires that Parliament should have the assistance of the Committee in the form of a report on regulations proposed by the Secretary of State unless (so far as material in the present case) the Committee has agreed to no reference of the proposals;
(3) the Secretary of State in breach of his duty under section 170 (4), [of the 1992 Act] through his officials provided the Committee with information which was erroneous, as was obvious to anyone comparing the old Reg. 27 with the proposed Reg. 27;
(4) thereby the Committee was misled into giving its agreement to no reference;
(5) the Committee would have required the proposed Reg. 27 to be referred to it if the proposal had been correctly presented as 'adverse';
(6) Parliament was thereby deprived of the report which it should have received from the Committee;
(7) the Secretary of State through his officials being responsible for the flaw in observing the prescribed procedure for making the new Reg. 27, the new Reg. 27 made by him is invalid."
- On behalf of the Secretaries of State, particular emphasis was placed before me on paragraph 35 in the same judgment where Lord Justice Peter Gibson said:
"I come next to the question whether in the context of the statutory scheme what occurred in the present case rendered the making of Reg. 27 by the Secretary of State invalid. Mr Drabble has concentrated attention on the role of the Committee in the statutory scheme and the part played by the Secretary of State through his officials in procuring the Committee's agreement, thereby enabling the regulation to be made. In my judgment it is clear that notwithstanding the fact that the Committee's role was, as its name implies, advisory, it was intended by the statutory scheme that the Committee's advice on the proposed regulations would be received by the Secretary of State and laid before Parliament unless the Committee agreed to no reference to it. This is emphasised by the mandatory requirement in section 172 (1) [of the 1992 Act] that the Secretary of State 'shall' refer the proposals to the Committee and by the requirement, even in a case of urgency when the Secretary of State is empowered to dispense with a reference, to refer the regulations so made to the Committee as soon as practicable after they are made, and the obligation on the Secretary of State to explain to Parliament, if he proposes not to give effect to the Committee's recommendations, his reasons why not. Plainly in the absence of the Committee's agreement Parliament was intended to have the benefit of the Committee's advice so as to be able to assess the new regulations."
- Although I accept Mr Nicholls QC's submission to me on behalf of the Secretaries of State that the statutory provisions in that case were not on all-fours with those in the present case, nevertheless I also accept Mr Drabble QC's submission to me that some analogy can be drawn with that case. In particular, in my view, the procedural requirement to obtain advice from the Child Poverty Commission laid down by Parliament in section 10 (1) of the 2010 Act was an important one.
- It is worth recalling in this context the classic statement of principle by Lord Reid in Anisminic Ltd v Foreign Compensation Commission  2 AC 147, 171. Although it is well known, it repays re-reading in this context:
"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many case where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with a question remitted to it and decided some question which was not emitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provision setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But it if decided a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide that rightly ..... "
- The continuing importance of Anisminic was confirmed recently in the judgment of Lord Dyson JSC in the Supreme Court in Lumba v Secretary of State for the Home Department  1 AC 245, 66:
" ..... A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission ..... established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law all of which rendered a decision ultra vires: see Boddington v British Transport Police  2 AC 143, 158 D-E."
- In my judgment the breach of section 10 (1) of the 2010 Act was sufficiently important that Parliament did intend it to go to the vires to produce the Strategy. The Commission was intended to be an independent body with relevant experts. It was required to publish its report. Accordingly, the scheme of the 2010 Act was that Parliament should have both the benefit of the Strategy, which had to be laid before it, and the report of the Commission, which had to be published. In my judgment it was not open to the Secretary of State simply to embark on a different policy and so ignore the will of Parliament that he should obtain a report from the Commission before laying his Strategy before Parliament.
- Accordingly I accept the claimant's first ground of challenge. I shall have to return to the issue of remedies later.
The Claimant's Ground 2
- In addressing this ground, it is important to recall the statement of principle as to how legislation such as section 9 (7) of the 2010 Act should be approached by the courts which is provided by the opinion of Lord Mustill in R v Monopolies & Mergers Commission ex p South Yorkshire Transport Ltd  1 WLR 32-33:
"Once the criterion for a judgment has been properly understood the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far no room for controversy. But this clear-cut approach cannot be applied to every case for the criterion so established may itself be so imprecise that different decision makers each acting rationally might reach differing conclusions when applying it to the facts of the given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow  AC 14. The present is such a case. Even after eliminating inappropriate sense of 'substantial' one is still left with a meaning broad enough to call for the exercise of judgment rather than exact quantitative measurement. Approaching the matter in this light I am quite satisfied that there is no ground for interference by the court, since the conclusion to which the Commission arrived was well within the permissible field of judgment."
- It was common ground before me that the test which the court should apply in this context too is one of irrationality. In the present context there are no hard-edged questions of law or terms of art to be found in section 9 (7).
- There is some suggestion, at least implicitly, in the evidence which has been filed on behalf of the claimant that there are such questions which arise. I note in particular the witness statement filed on behalf of the claimant by Alison Garnham at paragraph 22, where she says:
"22 ..... The 'strategy' document does not provide any detail about how the proposed measures for the period 2011-14 are to be judged successes or failures in terms of its obligations under section 9 (2) and (7) of the CPA 2010. In my view this document cannot be described as a proper strategy in the ordinary sense of the word, unless it explains what progress it expects will be made by the end of the period covered by the 'strategy' and how the measure it sets out will contribute towards reaching the end point set out in the Act. Without this, it is a paper with actions and indicators but that sets out no strategy."
- In my judgment it would be inappropriate for this court to seek to lay any judicial gloss on the terms which Parliament has used in section 9 (7). The words that Parliament has used are ordinary words which call for judgment and application. That function has been entrusted squarely by Parliament to the Secretary of State. It can be noted, without attempting to define or provide any judicial gloss on those ordinary words, that as a matter of etymology the word "strategy" (going back to its Greek origins) suggests the sort of thing that a "general" might do; in other words, to devise a plan at a relatively abstract level. The word is frequently contrasted in the English language to the word "tactics". Similarly, the word "progress", as a matter of etymology, can be seen to derive from the Latin "to move forward". As I have already stressed, it is important not to treat the words that Parliament has used in section 9 (7) as if they were terms of art or raised hard-edged questions of law.
- It was submitted on behalf of the claimant that a numerical approach had to be adopted or a quantitative approach under section 9 (7). At the hearing before me, Mr Drabble disavowed any suggestion that the Secretary of State was required to set interim targets in order to meet the 2020 targets, as it were, in stages. However the claimant did not shrink from suggesting that a quantitative approach did have to be adopted and that it was not sufficient to express the strategy as it was, with expressions of opinion and what was described by the claimant as a "hotchpotch" of initiatives which will take place in the period of the strategy and beyond.
- It is important at this juncture of the argument actually to look at what the Strategy says. The Strategy document contains two forewords, one by the Secretary of State for Work and Pensions and the other by the Minister of State for Children and Families. It is not necessary for present purposes, in my view, to go to the contents of the Strategy in detail although the Secretary of State's counsel rightly drew the court's attention to that document in some detail. The reason for this will become apparent.
- It is sufficient if I give a flavour, as it were, of the content and tone of the Strategy document by quoting a few passages, the first of which is at page 2 in the foreword by the Secretary of State:
"All families should benefit, where possible, from the opportunities of employment. We are launching this Strategy as we seek to build a new welfare state which has at its foundation the belief that work, not welfare, is the best route out of poverty for those who are able to work."
In similar vein (at page 3) the Secretary of State says:
"With a focus on fairness and personal responsibility, not cash handouts, this is the responsible choice in this fiscal climate. Our long-term strategy for the decade ahead is to protect the most vulnerable and reform welfare so work pays as a sustainable route out of poverty."
- Later on the same page there is reference to the introduction of a universal credit from 2013 to 2017 which the Government expects to move around 600,000 adults and 350,000 children out of poverty. It will be noted that part at least of that time frame does indeed fall within the period of the first UK Strategy, that is up to 2014. The claimant accepts in these proceedings that the reference to the universal credit was an appropriate thing to include to comply with the duty in section 9 (7) even on its interpretation of that provision.
- Towards the end of his foreword, the Secretary of State (at page 5) said:
"The following Strategy has been put together across Government and covers the period 2011 to 2014 capturing the breadth of flagship policies and reform programmes put in place to tackle poverty. In setting down our commitments for the next three years and our aspirations to deliver our goals for 2010 and beyond, we hope to provide clarity of our endeavour to achieve social justice by transforming the lives of families struggling at the bottom of the social ladder and underpinning our wider approach to improving social mobility."
- In her foreword, the Minister of State (at page 6 of the document) said:
"This first national child poverty strategy fulfills our obligations under the Child Poverty Act 2010 to set out plans for tackling child poverty from 2011 to 2014. It provides a framework for ending child poverty by 2020 and delivers a comprehensive three-year plan to lay the foundations for a new and more effective approach."
- In the executive summary (which begins at page 8) the document says (at paragraph 2):
"It is set against the backdrop of the Child Poverty Act 2010 which established income targets for 2020 and a duty to minimise socio-economic disadvantage. This Strategy meets the requirements to set out the proposed measures to make progress between 2011 and 2014 ..... "
- Criticism was made on behalf of the claimant in particular of annex B to the Strategy document which, as I have indicated, was described as a "hotchpotch" of various policy measures. It was suggested that some would in fact have a detrimental effect on the state of poverty in this county although other steps might indeed have a beneficial impact, such as the introduction of universal credit referred to in annex B (at page 74).
- It is instructive in this context to recall the following passage from the decision of Mr Justice Holman in R (On the Application of Luton Borough Council and Others) v Secretary of State for Education  LGR 553, paragraph 79:
"79 ..... The law recognises that public bodies, and especially central government, must enjoy a wide discretion to change policies from time to time to reflect their perception of the public interest. 'The liberty to make such changes is something that is inherent in our form of constitutional government.'" [see Hughes v Department of Health and Social Security  IRLR 263 at 267 (paragraph 23) per Lord Diplock] "This must be especially so in the case of a different political party taking power after a general election and in the immediate aftermath of that election."
A similar passage appears in the judgment of Lord Justice Laws in R (On the Application of Bhatt Murphy (a Firm)) v Independent Assessor  EWCA Civ 755, paragraph 41.
- In my judgment it is important to emphasise these fundamental constitutional principles because they go to the heart of our democratic society. Although, as I have already said, the Government of this country enjoys no power to make the law, it does have the legitimate right to make policy and otherwise exercise its powers in the public interest as it perceives it to be. The executive is accountable to the courts for the lawfulness of its conduct. However it is accountable only to Parliament for the merits of its policies. It was accepted by the claimant that the only basis on which the court could interfere with the judgment of the Secretary of State in devising the Strategy was if it was irrational.
- This case concerns, as the forewords make clear, high government policy on issues of political controversy. They are issues on which many people take diametrically opposed views. That is the very stuff of democratic debate. It is not for the courts to intrude upon that democratic process.
- In my judgment there was no legal test which required a sort of quantitative measurement for which the claimant contends in section 9 (7). In my judgment there is no basis for finding that the judgment of the Secretaries of State - that they had produced a Strategy within the meaning of the 2010 Act - was irrational.
- Accordingly I reject the claimant's second ground of challenge.
Remedies and Discretion
- In R (On the Application of Edwards) v Environment Agency  ELR 34, paragraph 63, Lord Hoffmann said:
"63 It is well settled that 'the grant or refusal of the remedy sought by way of judicial review is, in the ultimate analysis, discretionary' ..... But the discretion must be exercised judicially and in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it ..... "
- Two cases illustrate both the breadth and the flexibility of the court's remedial jurisdiction, in particular by way of declaratory relief, in order to do justice in the individual case before it.
- The first case is R v Secretary of State for Social Services ex p Association of Metropolitan Authorities  1 WLR 1, in particular at pages 14 to 15. In that passage Mr Justice Webster quoted the well-known passage in the opinion of Lord Diplock in Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service  AC 655, 695 where he said:
"My Lords, where a statutory authority has acted ultra vires any person who would be affected by its act if it were valid is normally entitled ex debito justiciae to have it set aside, if he has proceeded by way of certiorari, or to have it declared void. If he has proceeded by way of an action for a declaration the court may exercise its discretion to refuse the remedy on grounds of laches or of acquiescence or may be, though there appears to be no reported case of this, where the ultra vires act of the authority was induced by the unlawful acts of the complainant himself."
- In the case before him, Mr Justice Webster concluded that it would not be appropriate or just to quash the regulations on the ground of a breach of the duty of consultation. However, as he made clear at page 15 H, he could see no reason whatsoever for refusing the declaration which was sought, namely -
"a declaration that before making and/or laying before Parliament the ..... regulations ..... the Secretary of State for Social Services failed to comply with the duty imposed upon him by section 36 (1) of the Social Security and Housing Benefits Act 1982."
- The other case to which I would refer to illustrate the breadth and flexibility of the remedial jurisdiction, in particular to make a declaration, is the recent decision of the Divisional Court in R (On Application of Hurley and Moore v Secretary of State for Business Innovation and Skills  EWHC 201 (Admin), in particular in the judgment of Lord Justice Elias at paragraph 99. It is not necessary for present purposes to go into the details of that case. It will suffice to observe that, although the court found that there had been a breach of the public sector equality duty in the preparation of regulations which had the effect of increasing the level of tuition fees payable by students in England, the regulations were not quashed nor were they declared to be unlawful. What the court thought was a more "proportionate" remedy in the circumstances of that case was to make a declaration that the Secretary of State failed fully to carry out his public sector equality duties before implementing the regulations under challenge.
- In the present case it is to be noted that the claimant has never sought the remedy of a quashing order in respect of the Strategy published on 5 April 2002. In its claim form what it has sought is two declarations. I can put to one side the second one because that turned on a ground which I have rejected. In relation to the ground which I have found to be established by the claimant, the claimant sought a declaration that the publication of the document entitled "A New Approach To Child Poverty etc" did not discharge the section 9 (1) duty of the Secretary of State under the Child Poverty Act 2010 "to publish and lay before Parliament the first UK Strategy".
- In my judgment the following factors are of particular importance to the exercise of discretion in the present case. I have had regard to all the circumstances of this case.
- The first factor is the importance of the vindication of the rule of law.
- The second factor is that in my judgment the requirement in section 10 (1) was an important one for reasons that I have already indicated. It would normally be inappropriate for the court to anticipate what the outcome would be if a decision were taken again following a lawful procedure.
- A third factor which I have taken into account was urged upon me by the Secretaries of State: this is that there was widespread consultation although the duty to take advice from the Commission was not complied with. I note in particular the so-called "mitigation" measures referred to in the witness statement of Ms Crowther at paragraphs 21 to 24. Nevertheless I also see force in Mr Drabble's submission on behalf of the claimant that the consultation requirement in section 10 (4) was a separate and distinct one and, under paragraph (e) of that sub-section, the Secretary of State had a discretion to consult others not specified by Parliament as he saw fit. The fact is, as Mr Drabble points out, that the Secretary of State disabled himself by conscious decision from ever being able to take advice from the Child Poverty Commission because Ministers decided not to establish that Commission at all.
- A fourth factor - and very important in my view - is that Parliament has now repealed section 10 (1). Parliament has legislated now for an entirely new Commission whose functions are not exactly the same as those of the Commission from whom advice should have been taken under section 10 (1).
- I am clearly of the view that if it had been sought, a quashing order would now be inappropriate in this case. If a decision had now to be reconsidered, it is difficult to see how the requirement could be complied with since the requirement to take advice has been repealed by Parliament with effect from 8 May 2012 and moreover the relevant Commission does not exist and will not exist. That now is Parliament's will.
- However, as I have noted, what the claimant seeks is not a quashing order but a declaration. Nevertheless, in substance, a declaration will often have - because it is intended to have and is perceived to have - the same effect as a quashing order. This is because we are a society governed by the rule of law. By constitutional convention in this country, if a court makes a declaration the executive expects, and is expected, to comply with it without the need for a coercive order in most circumstances.
- In all the circumstances therefore the conclusion to which I have come, after considering further argument by counsel as to remedies, is that justice can be done in the present case by granting a declaration that "in producing the document 'A New Approach to Child Poverty: Tackling the Causes of Disadvantage and Transforming Families' Lives' the Secretaries of State did not discharge the duty contained in section 9 (1) of the Child Poverty Act 2010 because the duties contained in sections 10 (1) and 10 (3) of the Act were not complied with."
- For the reasons I have given this claim for judicial review succeeds to the extent that I accept the claimant's first ground of challenge. A declaration will be made accordingly.
- MR DRABBLE: I say a word about remedy. I typed out this morning a form of declaration which will obviously need modifying because the second ground has gone, and I distinguish between the two.
- MR JUSTICE SINGH: Has Mr Nicholls seen this?
- MR DRABBLE: Yes, he has. The declaration I would seek would be in this form although there will be no need for the semi-colon dash and it will simply become "did not discharge the duty contained in section 9 (1)" because the duties contained in section 10 (1) and (3) were not complied with. Strike out the rest.
- The one substantive submission I want to make on remedy is that we are obviously keen to preserve as far as possible the potential argument that the Secretary of State now should do - as it is reasonably possible under the new regime, and I fully accept it is under the new regime - is to make good the problem that I identified in opening the case which is that what has actually happened is that a strategy has been made and has not been quashed (no one thought to quash it) at a time when no Commission existed and there simply had been no input from an expect Commission into the formulation of that strategy.
- You will recall that at the hearing I tentatively considered adding some words to the end of this declaration. I do not think that is appropriate, having thought about it. Your Lordship was right during the hearing to express the view that there may need to be further dialogue between the parties. I want to leave open the possibility that we have got a stage further than AMA. At least Mr Justice Webster certainly thought that the granting of the declaration and the refusal of certiorari in that case was the end of the story and that the Secretary of State had nothing left to do. In the very particulars, that may be wrong because of Howker. That is a different issue.
- In this particular case we wish to maintain the stance that the Secretary of State should be taking the advice of the Commission. It may not be appropriate to all of it but as to our submissions about the ingredients. It has not happened in that form though there has been input from at least two political reviews which were carried out by Mr Field and - - - - -
- MR JUSTICE SINGH: Why can you not do that anyway?
- MR DRABBLE: I can do that anyway.
- MR JUSTICE SINGH: If they agree with you, everyone is happy.
- MR DRABBLE: Yes.
- MR JUSTICE SINGH: If they disagree with you for some reason then CPAG will have to consider whether there are any grounds for legal challenge. It is not for me to give any advice at this stage or at any stage for that matter.
- MR DRABBLE: I accept that. This declaration effectively adopts that approach. The only point on the wording is that it maintains the point, the approach, on the claim form which is not just that it breached the duty but it did not discharge the duty. For the reasons I have been trying to develop, that is a consideration I would like to appear on the face of the document.
- MR JUSTICE SINGH: "Did not discharge the duty." Is that just a covert way of saying that the strategy is declared to be unlawful?
- MR DRABBLE: No. It is an overt way of saying there is still something for the Secretary of State to think about and that is to remedy the position. No, it is not intended to say that the strategy is unlawful. It is intended to say there is something more to be thought about. That is the submission.
- MR NICHOLLS: Subject to one point, we are content with a declaration in this form.
- The one point emerges from the question your Lordship put to Mr Drabble a moment ago about whether this is a coded way of saying the strategy is unlawful which shades into the second ground which you have rejected. As I listened to your question and read the declaration again in the light of it, I can see that it could be read in that way. So an alternative and narrower basis is simply to say that in producing the document the Secretary of State did not comply with the duties contained in section 10 (1) and (3) of the Act, and that avoids the potential ambiguity you have foreshadowed.
- MR DRABBLE: I am entirely happy to have whatever change in wording we have to make it clear that we are not submitting this regime has no legal effect. We are not saying that. But I am still quite keen on this form of words because the concept of not discharging the duty is important and is intended to reflect a real difference from AMA.
- MR JUSTICE SINGH: I understand. What I am minded to suggest - and I will hear any further argument that either of you may have - is to say not the publication but that in producing the document the - - shall we say Secretaries of State?
- MR NICHOLLS: Yes, I think we should. Certainly both of them appear as either Secretaries of State or a Minister on the form, so yes I think it should be Secretaries of State.
- MR JUSTICE SINGH: The Secretaries of State did not discharge. So you would insert the words, after the title of the document, "the Secretaries of State did not discharge the duty" and then carry on as before, obviously just the (i).
- MR DRABBLE: No. It becomes "it is hereby declared that in producing the document the Secretaries of State did not discharge the duty".
- MR JUSTICE SINGH: I see everyone nodding. I am content to make a declaration in those terms. If you could send me an e.mail generally with a draft order reflecting my decision. There may be some consequential matters to deal with in a moment. We will deal with those, and those can be reflected in the order. On a formal declaration I think we are now agreed what we should say.
- MR DRABBLE: The moment I get back I will produce a - - - - -
- MR JUSTICE SINGH: You have my clerk's details.
- MR DRABBLE: I have.
- MR JUSTICE SINGH: And Mr Nicholls certainly does.
- MR DRABBLE: E.mails have been going backwards and forwards so I am sure it is on my computer somewhere.
- MR JUSTICE SINGH: Is there anything else?
- MR NICHOLLS: Simply no order as to costs in accordance with Mr Justice Bean's order.
- MR JUSTICE SINGH: Yes.
- MR DRABBLE: I have no application.
- MR JUSTICE SINGH: Thank you both for your very real assistance in this case.
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