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IN THE HIGH COURT
OF
JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
14/07/ 2014 |
B e f
o
r
e :
MR JUSTICE WARBY
____________________
Between:
____________________
Ms Jessica Simor QC and Mr Nikolaus Grubeck (instructed by Leigh Day) for the Claimant
Mr James Eadie QC and Ms Naina Patel (instructed by the Treasury Solicitor) for the Defendant
Hearing date 3 July
2014
____________________
HTML
VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Mr Justice Warby:
- This is an application for permission to apply for judicial
review
of
the conduct
of
the
Secretary
of
State
for
International
Development
in connection with the grant
of
development
assistance to Ethiopia under Section 1
of
the
International
Development
Act 2002.
- The Claimant is an Ethiopian citizen who claims to have been a
victim
of
human
rights
abuses perpetrated in the course
of
an Ethiopian Government programme for the
resettlement
of
individuals from
rural
communities in new and larger "communes". This programme is known
officially
as the Commune
Development
Programme ("CDP") but also known as "
villagisation".
It is said to involve forced
internal
relocation
and consequent
or
related
human
rights
violations.
Following what he says is brutal treatment at the hands
of
State
actors in the course
of
this programme in 2012 the Claimant fled to Kenya, it is said, leaving his family in Ethiopia. The Claimant alleges that he is far from being alone in suffering in this way, and
refers
to evidence gathered by human
rights
organisations
and NGOs
of
widespread human
rights
abuses in Ethiopia in the context
of
the
villagisation
programme and
otherwise.
- The Claimant maintains that UK
development
assistance money provided by the Defendant to the Ethiopian Government contributes to such human
rights
violations,
including those allegedly carried
out
in connection with the
villagisation
programme from which he claims to have suffered. He alleges, in particular, that there is evidence that the
villagisation
programme is partly funded by payments made by the Defendant and
others
into a programme called the Promotion
of
Basic Services Programme ("PBS"). The PBS is a
very
large programme, currently in its third phase, with a budget
of
some £510 million allocated until the end
of
January 2018. It aims to channel money to
regional
and district governments.
- The grant
of
development
assistance under s 1
of
the Act
of
2002 is governed by policies set
out
in a policy paper
of
2005, in the production
of
which the Defendant participated, entitled Partnerships for Poverty
Reduction:
Rethinking
Conditionality. These policies acknowledge the need for governments which are partners in the grant and
receipt
of
aid to
respect
and uphold human
rights,
and the need for the UK government as a donor to
reconsider
aid decisions if
recipient
countries are found to be in significant
violation
of
human
rights.
A "How to note"
of
2009 sets
out
guidance
on
the implementation
of
such policies, including the methodology by which compliance with human
rights
is to be assessed. The Defendant's policies also contain provision as to transparency. Commitments to transparency and accountability are
reflected
in the 2005 paper, the "How to note"
of
2009, and the Defendant's "
Open
Data Strategy April 2012 – March
2014".
- It was against that background that between 2012 and
2014
the Claimant's solicitors corresponded with the Defendant complaining
of
a failure to apply properly
or
at all her policies
on
conditionality and transparency and,
on
14 February
2014,
the Claimant issued these proceedings. The claim advances two grounds
of
challenge. First, it is alleged that the Defendant has failed to have in place any sufficient process to assess Ethiopia's compliance with the express conditions for
receiving
UK aid which are mentioned above,
or
to follow any such process,
or
both. Secondly, the Claimant alleges that the Defendant has acted unlawfully in
refusing
to make her assessment public, in breach
of
her
stated
policies
on
transparency.
- The first ground is focused
on
the Defendant's most
recent
Partnership Principles Assessment in
relation
to Ethiopia, dated November 2013 ("the PPA"). This is a substantial document setting
out,
among
other
things, details
of
evidence assembled as to the Ethiopian Government's human
rights
record,
assessments
of
that evidence, and conclusions as to the actions to be taken by the Defendant, based upon that assessment. Extracts
of
the PPA were sent to the Claimant's solicitors
on
19 November 2013 under cover
of
a letter
of
from the Treasury Solicitor, acting
on
behalf
of
the Defendant. The Claimant's second ground
of
challenge arises from a further letter from the Treasury Solicitor dated 10 December 2013 by which the Defendant made clear that she
objected
to the extracts
of
the PPA which she had provided earlier being put into the public domain.
- The
relief
sought by the Claimant is first, a declaration that the Defendant has acted unlawfully in failing to have
or
to apply a proper assessment process so far as Ethiopia's compliance with human
rights
is concerned, and secondly an
order
requiring
the publication
of
the most
recent
assessment
of
Ethiopia's compliance, namely the PPA
of
November 2013. No challenge is made, and no
relief
is sought, in
respect
of
any decisions by the Defendant to grant aid to Ethiopia.
On
26 March
2014
the Defendant filed an Acknowledgment
of
Service and Summary Grounds
of
Resistance.
The Grounds
of
Resistance
assert that significant parts
of
the claim are
out
of
time, that the Claimant does not have standing to bring the claim, and that in any event there is no properly arguable basis for any aspect
of
the claim. When the papers came before Nicola Davies J
on
2 May
2014
she granted the Claimant anonymity and directed that the application for permission be adjourned into court for
oral
hearing,
observing
that besides the general merits two preliminary points
required
determination: whether parts
of
the challenge were
out
of
time, and the legal standing
of
the Claimant to bring the claim. Nicola Davies J noted that no Witness
Statement
had been filed
on
behalf
of
the Claimant.
- Subsequently,
on
1 July
2014,
a Witness
Statement
was filed in the name
of
the Claimant. Unsigned and undated, it had been confirmed by telephone by the Claimant whom I was told does not
read
or
write. Its contents
reflected
broadly what had been alleged in the
Statement
of
Facts and Grounds accompanying the Claim Form. The matter then came before me
on
3 July
2014
for consideration
of
the three issues then arising: the time issue, the standing issue, and the question
of
whether the claim was arguable
on
its merits.
Time
- This aspect
of
the case proved uncontroversial in the event. The Claimant's Grounds made
reference
to documents
of
earlier dates than the November 2013 PPA. Mr Eadie QC explained that for this
reason
the Defendant had put a marker down, to ensure that she could not be suggested that some free-standing ground
of
challenge arose, based
on
earlier decisions. Ms Simor QC made clear that the Claimant's challenge
related
only
to the November 2013 PPA. That assessment made
reference
to information contained in
other,
earlier documents. It is
only
in that
respect,
however, that the Claimant
relied
on
such documents. None
of
the earlier matters are separately challenged.
Standing
Legal principles
- The
right
to seek judicial
review
of
administrative action is governed by s 31
of
the Senior Courts Act 1981. Section 31(3) provides that:-
"No application for judicial
review
shall be made unless the leave
of
the High Court has been
obtained
in accordance with
rules
of
court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application
relates."
- The
requirement
of
a sufficient interest is a jurisdictional threshold, and whether a person has a sufficient interest is a matter
of
judgment, not a matter
of
discretion. It is also clear, however, that the sufficient interest
requirement
is
one
which allows the court "to decide what in its
own
good judgment it considers to be a 'sufficient interest'
on
the part
of
[a claimant] in the particular circumstances
of
the case before it":
R
v
Inland
Revenue
Commissioners, ex parte National Federation
of
Self-Employed and Small Businesses [1982] AC 617, 642 per Lord Diplock. The test excludes a claimant who is a mere "busybody" (ibid. 646 per Lord Fraser) but is
otherwise
liberal and inclusive. Standing
ought
not to be treated narrowly, as a preliminary issue, but should be assessed in the legal and factual context
of
the whole case:
R
v
Secretary
of
State
ex parte World
Development
Movement [1995] 1 WLR 38, 395E-396A. Thus, where the circumstances justify it, the court has been
ready
to
recognise
standing
on
the part
of
persons and
organisations
who cannot demonstrate that they are directly and individually affected by an administrative measure, such as NGOs and
representative
bodies.
- The
requirement
of
standing to seek judicial
review
has been
recently
considered by the Supreme Court in two Scottish cases, AXA General Insurance Ltd &
Ors
v
HM Advocate &
Ors
[2011] UKSC 46, [2012] 1 AC 868 and Walton
v
The Scottish Ministers [2012] UKSC 44. It was common ground that these cases, whilst dealing with the supervisory jurisdiction in Scottish law, are to be treated as giving authoritative guidance
on
the English law
requirement
of
standing. In Walton Lord
Reed
summarised the position in this way:
"90 In AXA General Insurance Ltd and
others
v
HM Advocate and
others
[2011] UKSC 46; [2012] 1 AC 868; 2011 SLT 1061, this court clarified the approach which should be adopted to the question
of
standing to bring an application to the supervisory jurisdiction. In doing so, it intended to put an end to an unduly
restrictive
approach which had too
often
obstructed
the proper administration
of
justice: an approach which presupposed that the
only
function
of
the court's supervisory jurisdiction was to
redress
individual grievances, and ignored its constitutional function
of
maintaining the
rule
of
law.
91 As was said by Lord Hope and myself at paras 62 and 170
respectively,
an applicant has to have sufficient interest: that is to say, an interest which is sufficient to justify his bringing the application before the court. In further explanation
of
that concept, Lord Hope said (para 63):
"I would not like to
risk
a definition
of
what constitutes standing in the public law context. But I would hold that the words 'directly affected' which appear in
rule
58.8(2) capture the essence
of
what is to be looked for.
One
must,
of
course, distinguish between the mere busybody, to whom Lord Fraser
of
Tullybelton
referred
in
R
v
Inland
Revenue
Comrs, Ex p National Federation
of
Self-Employed and Small Businesses Ltd [1982] AC 617, 646, and the interest
of
the person affected by
or
having a
reasonable
concern in the matter to which the application
related.
The inclusion
of
the word 'directly' provides the necessary qualification to the word 'affected' to enable the court to draw that distinction. A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section
of
the public that he seeks to
represent."
92 As is clear from that passage, a distinction must be drawn between the mere busybody and the person affected by
or
having a
reasonable
concern in the matter to which the application
relates.
The words "directly affected", upon which the Extra Division focused, were intended to enable the court to draw that distinction. A busybody is someone who interferes in something with which he has no legitimate concern. The circumstances which justify the conclusion that a person is affected by the matter to which an application
relates,
or
has a
reasonable
concern in it,
or
is
on
the
other
hand interfering in a matter with which he has no legitimate concern, will plainly differ from
one
case to another, depending upon the particular context and the grounds
of
the application. As Lord Hope made plain in the final sentence, there are circumstances in which a personal interest need not be shown.
93 I also sought to emphasise that what constitutes sufficient interest has to be considered in the context
of
the issues
raised.
I
stated
(para 170):
"A
requirement
that the applicant demonstrate an interest in the matter complained
of
will not however
operate
satisfactorily if it is applied in the same way in all contexts. In some contexts, it is appropriate to
require
an applicant for judicial
review
to demonstrate that he has a particular interest in the matter complained
of:
the type
of
interest which is
relevant,
and therefore
required
in
order
to have standing, will depend upon the particular context. In
other
situations, such as where the excess
of
misuse
of
power affects the public generally, insistence upon a particular interest could prevent the matter being brought before the court, and that in turn might disable the court from performing its function to protect the
rule
of
law … What is to be
regarded
as a sufficient interest to justify a particular applicant's bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes
of
judicial
review
in that context."
94 In many contexts it will be necessary for a person to demonstrate some particular interest in
order
to demonstrate that he is not a mere busybody. Not every member
of
the public can complain
of
every potential breach
of
duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority's
violation
of
the law to the attention
of
the court, without having to demonstrate any greater impact upon himself than upon
other
members
of
the public. The
rule
of
law would not be maintained if, because everyone was equally affected by an unlawful act, no-
one
was able to bring proceedings to challenge it."
Facts
- The CDP involves the
resettlement
of
very
large numbers
of
people living in four
remote
areas
of
Ethiopia, its aim being to move populations from small and scattered
rural
settlements into larger, planned settlements, with the
stated
aim
of
improving the delivery
of
basic services to those communities. Estimates
of
the
overall
numbers involved
range
from 1.5 million to as many as 4 million people including, according to a DFID submission
of
6 June 2012, "all the
rural
population
of
Gambella".
- The Claimant's witness
statement
gives an account
of
his
own
experiences which can be summarised as follows. He was a subsistence farmer in Gambella, with a wife and six children, living and working
on
land that had been passed from generation to generation from time immemorial. In November 2011 the Claimant's
village
was
visited
by soldiers, police
officers
and civilian district
officials
who had forced the population to leave their land immediately. Many were said to have been beaten up for
raising
objection.
All
of
this took place at harvest time. The district
officials
in the Claimant's area
of
Gambella were actively involved in the
villagisation
programme, says the Claimant, "in that they were present and assisted in
our
forced movement and the appropriation
of
my land." The
villagers
were then transported to a new "
village".
Conditions there were so poor, however, that the Claimant and his family felt compelled to
return
to their home
village.
Shortly after they did so soldiers arrived, took the Claimant away, beat him, and insisted he leave and not
return.
He fled the
region
and the country to a
refugee
camp in Kenya. There, he has heard from fellow
refugees
of
other
similar experiences, including
rapes,
having taken place in Gambella. His family
remained
behind, somewhere in Gambella. He does not know where.
- Although the Claimant's
statement
did not give dates for all
of
these events, his case as set
out
in the
Statement
of
Facts and Grounds is that the
return
to the home
village
took place in early 2012 and the beating
of
the Claimant in around April 2012.
Reports
from Human
Rights
Watch
of
January and June 2012 describe similar experiences
on
the part
of
individuals from Gambella and
other
regions
of
Ethiopia. Another NGO, Survival
International,
has
reported
evidence
of
similar behaviour in the South
Omo
region.
- The link between all
of
this and UK aid is said to arise
via
the PBS programme. The PBS programme is a funding strategy designed to supplement government spending in five sectors: health, agriculture,
roads,
water and education. UK aid contributes to the PBS programme along with a number
of
other
sources
of
funding which include the World Bank. Payments by donors such as the UK are made
via
the Ethiopian Government which provides Federal Block Grants to
regional
authorities which are mandated to provide basic services. DFID funding under this programme is controlled, so that it can
only
be spent
on
local government
recurrent
expenditures (salaries,
operations
and maintenance). It is said
on
behalf
of
the Claimant, however, that Ethiopia is a highly centralised
state
in which local government implements central government strategy and that this includes the
villagisation
programme.
On
24 September 2012 two
representatives
of
a group
of
26 individuals from Gambella submitted a complaint to the Inspection Panel
of
the World Bank, alleging that the
villagisation
programme had been carried
out
by force "and accompanied by gross
violations
of
human
rights"
and that this had been made possible in part by the Bank's support for the PBS Programme.
On
9
October
2012 the
request
was found by the Bank's Inspection Panel to
raise
issues
of
harm "which may plausibly have
resulted
from the [PBS] Project and from alleged actions/
omissions
of
the Bank."
On
19 November 2012 a
report
by World Bank management
stated
that "there is no basis to claim" that the third phase
of
the PBS Programme (to which UK aid contributes) is "directly
or
indirectly linked to
villagisation".
The World Bank Inspection Panel concluded however that that an investigation was
required
in
order
to assess whether funding
of
the PBS programme had indeed been linked to the
villagisation
programme. A
report
of
August 2013
outlined
a plan
of
action for such an assessment and it appears that this is currently in progress.
Submissions
- The Defendant's submission was that the Claimant had to show either that he had himself been "affected in some identifiable way" by the decisions under challenge,
or
that the claim involved issues
of
real
and significant public interest which would not
otherwise
be
raised,
such that adherence to the
rule
of
law
required
that the challenge be allowed to proceed.
- The first
of
these tests was drawn by Mr Eadie QC from dicta
of
Arden LJ in
R
(Chandler)
v
Secretary
of
State
for Children, Schools & Families [2010] LGR 1 at [77] which were cited and applied by Eady J in
R
(Unison)
v
NHS Wiltshire Primary Care Trust [2012]
EWHC
624 (Admin). The Claimant's case was said to fail this test as the accounts
of
events given in his Grounds and witness
statement
were
internally
inconsistent and in any event an inadequate foundation for asserting any link between the Claimant's experiences and the Defendant's decision-making. Mr Eadie pointed to the World Bank management
report
of
November 2012.
- As to the second and alternative test
of
standing proposed by the Defendant,
reference
was made to paragraph [94]
of
the judgment
of
Lord
Reed
in Walton
v
The Scottish Ministers. It was submitted that the
requirement
of
a significant public interest was manifestly not met here and that the
rule
of
law did not
require
this challenge to proceed, there being plenty
of
other
mechanisms by which the Defendant could be held to account for the conduct which the Claimant seeks to challenge.
- Ms Simor QC argued for the Claimant that the test
of
standing derived from Chandler and applied in Unison was specific to its context, and narrower than the general test. She emphasised that the general test is a liberal
one,
and that standing
ought
not to be treated narrowly, but in the
overall
legal and factual context
of
the case. Ms Simor drew particular attention to Lord
Reed's
warning in paragraph [90]
of
Walton against an "unduly
restrictive
approach" to
review,
and to the encapsulation in paragraph [91]
of
Walton: that a sufficient interest is "an interest which is sufficient to justify his bringing the application before the court".
- Ms Simor submitted that the present claim
raises
serious public interest issues arising from the acknowledged need to ensure that
development
aid does not go to governments involved in grave human
rights
breaches. In
relation
to those issues the Claimant is not a mere busybody advancing a bare allegation
of
public law error. The Claimant has a direct interest in the grant
of
aid to his government. That includes, in particular, a direct interest in having his government's human
rights
compliance properly assessed for that purpose. He has been directly affected by the CDP, which has
resulted
in the seizure
of
his land and brutality affecting him personally, in a context where similar
or
worse abuses have been carried
out
against
others.
There is a credible basis, she submitted, for contending that UK aid has contributed to the CDP and hence to the human
rights
violations
of
which complaint is made.
Discussion
- Ms Simor is
right,
in my
view,
when she says that Unison should not be treated as providing authoritative guidance
on
the
right
approach to standing in the present case. It is important to
recall
the point made so clearly by Lord
Reed
in AXA at [170], and
repeated
in Walton at [93], that the
requirements
of
standing in any particular case depend critically upon context.
- In Unison the issue was whether the trade union claimants had standing to challenge decisions
of
the defendant Primary Care Trusts to
outsource
Family Health Services which had previously been provided in-house. The
outsourcing
decisions were said to have involved breaches
of
the Public Contract
Regulations
2006.
Regulation
47
of
those
Regulations
imposes certain duties
on
pubic bodies towards "economic
operators"
enabling the latter to pursue statutory civil
remedies
in the event
of
breach. This
raised
the question
of
the extent, if any, to which public law
remedies
could be available in addition to and alongside the specific private law
remedies
provided for. In Chandler Arden LJ had
observed
that the Court was inclined to the
view
that a public law
remedy
could in principle be available for non-compliance with the
Regulations
at the instance
of
an individual who was not an "economic
operator"
but was "affected in some identifiable way" by the alleged breach
of
the
Regulations.
In Unison Eady J adopted and applied that criterion, holding that the trade union claimants were not so affected.
- The context was however entirely different from that
of
the present case. It was
one
in which it was, in Lord
Reed's
words, "appropriate to
require
an applicant for judicial
review
to demonstrate that he has a particular interest in the matter complained
of".
- I should instead take my lead from the guidance given by Supreme Court in AXA and Walton, which both Counsel agreed is the latest word
on
the subject. Key points which I derive from the passages cited above are these. First, the court should avoid an unduly
restrictive
approach, which treats judicial
review
exclusively as a means
of
redressing
individual grievances. Secondly, the concept
of
a "sufficient interest" is not
one
that lends itself to exhaustive definition, but is inherently elastic depending
on
the particular context and circumstances. Third, a person will not have standing if they are a mere busybody in the sense that they are interfering in a matter in which they have no personal interest and no
reasonable
or
legitimate concern; but it is not necessary to demonstrate a personal interest if the individual is acting in the public interest and can genuinely say that the issue directly affects the section
of
the public that he seeks to
represent.
This, to my mind, is a less
rigid
and more graduated standard than the binary approach advocated by Mr Eadie.
- In applying these considerations I also bear in mind that the issue
of
standing should normally be disposed
of
at the permission stage
only
if the issue is
obvious:
R
v
IRC ex parte National Federation
of
Self-Employed and Small Businesses [1982] AC 617. This is a matter
of
particular significance if, as is the position here, there are factual issues the
resolution
of
which may be material to the question
of
what interest
or
reasonable
concern the Claimant has in
respect
of
the matters complained
of.
- I should at this stage treat the account
of
the facts contained in the Claimant's witness
statement
as an accurate
one.
The
statement
was served late, and Mr Eadie was understandably critical
of
this. He also sought to cast doubt upon it by drawing attention to what were said to be discrepancies between the
statement
and the account
of
the facts in the Claimant's
Statement
of
Facts and Grounds. However, the fact
remains
that the witness
statement
has not been contradicted by the Defendant. Whilst Mr Eadie was entitled to seek to undermine it, I could not
reject
the Claimant's factual case
on
that account. The Claimant has at this stage presented a sufficient basis for asserting that he has been personally and directly affected by the CDP. It is true that the experiences
of
abuse which he
relates
occurred
in 2011 and 2012, before the decisions challenged in this action. He is entitled however to say that he
remains
affected, as someone who
remains
ousted
from his ancestral land and a
refugee
from his home country. Further, he can say that he is a family member with
relatives
from whom he has been and
remains
separated as a
result
of
the way the CDP has been implemented, with those
relatives
remaining
somewhere in Ethiopia.
- That,
of
course, is not enough to afford the Claimant a sufficient interest in the claim he brings in these proceedings. The Claimant has however also presented a sufficient factual case
of
likely linkage between the provision
of
UK aid and the CDP, and he has done so not
only
in
relation
to the past but also in
relation
to the present and future. In approving funding for PBS Phase III the Defendant
relies
on
the assessment by her department
of
Ethiopia's compliance with the partnership principles laid down in the 2005 policy paper. That includes the Department's assessment
of
compliance with the
requirement
to uphold and
respect
human
rights.
The contention that the CDP has been at least indirectly funded
via
UK contributions to the PBS certainly cannot be
rejected
at this stage. It is therefore
reasonable
for the Claimant to contend that the Defendant's approach to the assessment
of
Ethiopia's human
rights
record,
and hence to the disbursement
of
aid, may have had a causal impact
on
the implementation
of
the CDP in the past, and that the same is likely to be true as
regards
current and future disbursements.
- The impact,
or
prospective impact
on
the Claimant and his family could be described as indirect but it is not
remote.
In those circumstances it is not fanciful but fair to say that the Claimant is affected by
or
has a
reasonable
concern in the Defendant's present and future policy and practice with
regard
to the assessment
of
Ethiopia's human
rights
record.
That, in my judgment is enough to satisfy the
requirement
of
a sufficient interest. I do not consider that the Claimant can properly be described as a "busybody" interfering in something with which he has no legitimate concern. For these
reasons
I would not dismiss this application
on
the basis that the Claimant has no sufficient interest.
- I should perhaps make clear, in case
of
any doubt, that in
reaching
this conclusion I do not consider myself to be doing any more than applying to the particular facts
of
this case, as they presently appear, the law as
stated
by the authorities I have
relied
on
above and in particular the decisions
of
the Supreme Court in AXA and Walton.
Arguability and permission
- The purpose for which the
rules
of
court
require
a Claimant to
obtain
the Court's permission to seek judicial
review
is to eliminate at an early stage claims which are hopeless, frivolous
or
vexatious.
Permission should be granted
only
if the Claimant shows an arguable case that a ground for judicial
review
exists which merits full investigation at a full
oral
hearing with all the parties and all the
relevant
evidence. If such a case is shown, however, permission will
ordinarily
be granted unless there is another ground for
refusal,
such as delay
or
the availability
of
an alternative
remedy.
- The Claimant's case in support
of
ground 1, that the Defendant has unlawfully failed properly to create
or
to follow a sufficient system to assess Ethiopia's human
rights
record,
has two aspects to it. His primary complaint is that the Defendant has acted in breach
of
the duty
owed
by any public body to take
reasonable
steps to
obtain
the information
relevant
to the discharge
of
its functions:
Secretary
of
State
for Education and Science
v
Tameside Metropolitan Borough Council [1977] QC 1014. The Claimant emphasises that in contexts calling for anxious scrutiny, that is to say those involving fundamental
rights,
this duty is enhanced and encompasses a duty, where evidence calls for an explanation, to seek such an explanation:
R
v
Secretary
of
State
for the Home Department, ex p Gashi [1999] Imm AR 415 (CA). The Claimant alleges that the Defendant has no established mechanisms for collecting
or
assessing evidence as to Ethiopia's compliance with the conditions for the grant
of
aid. The Defendant has neither a system for assembling information itself, nor any mechanism for a third party to undertake inquiries
on
her behalf, nor any means
of
enabling third parties to draw
relevant
information to her attention, it is said.
- The Claimant's further complaint is that the Defendant has, without good
reason,
acted in breach
of
an express
requirement
of
her
own
policy document, namely the "How to note"
of
2009, that she formulate
objective
benchmarks against which to measure compliance.
- The Defendant does not dispute the existence
of
the duties
of
inquiry
relied
on
by the Claimant. She
responds
however that the Tameside duty
requires
only
reasonable
steps, and that the standard which the law
requires
her to meet in discharging her functions in this
regard
is that
of
rationality
and no more. Subject to that
requirement,
it is for the public body to decide upon the manner and intensity
of
inquiry appropriate to the function in question:
R
(Khatun)
v
London Borough
of
Newham [2005]
QB
37, [35]. The principles have been
recently
rehearsed
in
R
(Plantaganet Alliance)
v
Secretary
of
State
for Justice [
2014]
EWHC
1662 (Admin) at [100] where it was emphasised, among
other
things, that
"3. The court should not intervene merely because it considers that further inquiries would have been sensible
or
desirable. It should intervene
only
if no
reasonable
authority could have been satisfied
on
the basis
of
the inquiries made that it possessed the information necessary for its decision."
- The Defendant characterises the Claimant's case in this
respect
as
one
involving a series
of
assertions as to how the Defendant should discharge her duty, by which the Claimant seeks to impose a "straightjacket"
on
the
rational
exercise
of
judgment by her.
- As for the Claimant's second complaint, the Defendant has a simple
response:
rationality
does not
require
the setting
of
benchmarks, and the policy
of
setting benchmarks that was put in place by the "How to note" was modified by an Addendum
of
June 2013, prior to the PPA
of
November 2013. The Defendant's
only
obligation
was to follow the policy in force at the time
of
the decision at issue.
- I have
only
summarised the
rival
arguments in the above paragraphs because I have
reached
the conclusion that
on
this first ground the Claimant has put forward a case that is
reasonably
arguable and deserves a full hearing. There is clearly force in the arguments advanced
on
behalf
of
the Defendant. However, I can also see force in the Claimant's
observation
that it has not been explained, either in the PPA
or
elsewhere, just how the
overall
process
of
collection and assessment
of
evidence is conducted
or
on
what basis a decision is made. The Claimant maintains that the Defendant has in effect ignored,
or
chosen not to enquire further into, factual allegations which are plainly
relevant
to the assessment. The Claimant also points to elements
of
the assessment contained in the PPA which are said to involve attention being paid to irrelevant considerations. I do not believe I can dismiss these criticisms
out
of
hand. Since these arguments will be advanced
on
a future
occasion
it is undesirable for me to say any more than that.
- I have
reached
a different conclusion
on
the Claimant's second ground. His case as to transparency is again
one
of
failure to comply with
stated
policy. The Claimant
relies
on
the undoubtedly substantial number
of
statements
contained in the Defendant's policy documents, asserting a commitment to transparency. These are framed in a
variety
of
ways but perhaps the high point is a
statement
in Part 2
of
the "How to note"
of
2009 that "We will publish all project evaluations from May 2012
onwards".
The Defendant's
response
to this ground
of
challenge is to submit that whilst many
references
to transparency can be found there is no case advanced
of
any specific commitment to transparency in the
relevant
respect
and no case that the Defendant has committed herself to publishing the PPA. This, it is said, is a classic area where what is necessary to meet transparency must be a matter for decision by the Defendant. That is especially so given the inherently sensitive nature
of
assessments
of
this kind.
- These submissions
of
the Defendant seem to me to be unanswerable. It is beyond doubt that the Defendant has made commitments to transparency in decision-making about aid. What is not arguable in my
view
is that the Defendant has, by using the term "transparency" in the ways that she has, committed herself to making the PPA as a document public either in whole
or
in part,
or
that she has made a commitment to publishing a class
of
document
of
which the PPA is an example. I do not, in saying this,
rule
out
an argument that the publication
of
aspects
of
the Defendant's assessments
of
Ethiopia's
record
is a necessary component
of
a lawful process
of
assembling and assessing
relevant
evidence. That is a separate issue from the case advanced in support
of
the Claimant's second ground
of
challenge, which is that the Defendant has failed to comply with her
stated
policy
on
conditionality by
refusing
to make the assessment public.
- I therefore grant permission to seek judicial
review
on
Ground 1, but
refuse
it
on
Ground 2. The
refusal
of
permission
on
Ground 2 is without prejudice to the Claimant's
right,
if so advised, to
rely
on
non-publication
of
the PPA in support
of Ground 1.
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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/2371.html