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Neutral Citation Number: [2012] EWHC 2579 (Admin) |
|
|
CO/6312/2011 |
IN
THE
HIGH COURT
OF
JUSTICE
QUEEN'S BENCH DIVISION
THE
ADMINISTRATIVE COURT
|
|
Royal Courts of Justice Strand London WC2A 2LL |
|
|
17 July 2012 |
B e f o r e :
MR JUSTICE SINGH
____________________
Between:
|
THE QUEEN ON APPLICATION OF CHILD POVERTY ACTION GROUP |
Claimant |
|
v |
|
|
SECRETARY OF STATE FOR WORK AND PENSIONS |
First Defendant |
|
SECRETARY OF STATE FOR EDUCATION |
Second Defendant |
____________________
Computer-Aided Transcript
of the
Stenograph Notes
of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to
the
Court)
____________________
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
____________________
Crown Copyright ©
MR JUSTICE SINGH:
Introduction
- 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.
"(4) ....
'
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.
Issues
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 [1991] 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 [2006] 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 [1980] 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 [1998] 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 [2003] 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 [1969] 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 [2012] 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 [1999] 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 [1993] 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 [1956] 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 [2011] 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 [1985] 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 [2008] 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 [2008] 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 [1986] 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 [1978] 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 [2012] 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."
Conclusion
- 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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