Public law and the third sector

1. public law processes in Wales.
Michael Imperato
Solicitor
Watkins & Gunn

2. How to Challenge
• 1 – Ombudsman
• 2 – Tribunals
• 3 – Judicial review

3. Ombudsman

4. Ombudsman
• The Public Services Ombudsman for Wales brings together
the jurisdictions of various offices he replaced, namely the
Local Government Ombudsman for Wales, the Health
Service Ombudsman for Wales, the Welsh Administration
Ombudsman and the Social Housing Ombudsman for
Wales.
• The Ombudsman has a dual role. Firstly, he investigates
complaints by members of the public concerning
maladministration, failure in a relevant service or failure to
provide a relevant service by any "listed authority" in
Wales. Secondly, under the Local Government Act 2000, he
is responsible for policing ethical standards in local
authorities.

5. Tribunals – Appeals from
• One may be able to appeal to the Upper Tribunal
(Administrative Appeals Chamber) if you think
there was a legal mistake with a decision made
against you by certain lower tribunals and
organisations.
• One might be able to appeal if the case was
about:
• social security or child support
• mental health
• special education needs or disabilities

6. Discrimination/HR
• Another Way to challenge Government
Decisions is to look at how they impact on
vulnerable groups
• This may give rise to a Discrimination or HR
Challenge

7. Bedroom Tax Case

8. Bedroom Tax Case
• The Court of Appeal has ruled that the so-called
bedroom tax discriminates against a domestic
violence victim and the family of a disabled teenager.
• The ruling followed legal challenges by a woman who
has a panic room in her home, and the grandparents of
a 15-year-old who requires overnight care.
• The removal in 2013 of what the government calls the
spare room subsidy cuts benefits for social housing
tenants with a "spare" room.

9. Bedroom Tax Case
• Both claimants argued that reg.B13 unlawfully
discriminated against them.
• The question was therefore whether the discrimination
was justified.
• In Rutherford, the Court of Appeal could find no
rational reason for why disabled adults, who required
an overnight carer, were entitled to a spare bedroom
and yet disabled children, who also required an
overnight carer, were not. This was especially so where
the Secretary of State was obliged to treat the rights of
the child as a primary consideration

10. Bedroom Tax case
• Re Rutherford v Sec of State for Work &
Pensions (2016) EWCA Civ 29 Court of Appeal.
• http://www.bailii.org/ew/cases/EWCA/Civ/20
16/29.html

11. Growth of Welsh Law

12. The Growth of Welsh Law
• For the first time since the early 16th century it
is meaningful to speak once again of Welsh
law.
• Mr. Justice David Lloyd Jones, 2010.]

13. • In 2011 Wales obtained primary law making power in
devolved areas. Although there have been now some
Welsh made pieces of primary legislation so far,
‘subordinate legislation is a bigger source of law in
terms of volume.’ In 2012 Maria Navarro sought to
quantify the impact of Welsh subordinate legislation
and concluded that:
• There have been more than 2000 statutory
instruments made in Wales since 1999 which
potentially could amount to a substantial body of
different legislation … A couple of hundred of pieces
and Welsh law which are different to English
equivalents every year from the inception of Welsh
devolution soon equals a substantial body of Welsh
law.

14. • Just as the new National Assembly primary
law making powers from 2011 will lead to
more legislative activity in the National
Assembly, so any move to a reserved powers
model should substantially increase legislative
activity further. In the 10 years in 2000 - 2009
the Scottish Parliament produced 146 acts and
another 45 in the years 2010 - 2012. The
Northern Ireland Assembly has had periods of
being in suspension but from 2007 – 12 had
passed 65 acts. The Welsh Government has
passed c 25 Acts since 2011.

15. New ‘Wales Bill’
• In simple terms, the Bill takes the law that
governs the assembly and Welsh devolution and
turns it inside out.
• Currently Wales' devolved powers are explicitly
set out in a list of so-called "conferred" powers.
• The Wales Bill tries to move Wales to a system
more like the Northern Ireland assembly and the
Scottish parliament.
• There, powers kept by Westminster are defined in
a set of "reservations". Everything else is
assumed to be devolved.

16. • The Bill's critics argue the legislation, as it
stood, does not achieve the Govs stated aim
of producing a clearer settlement that would
stand the test of time.
• There are three specific areas which have
attracted criticism:
• The size and content of the reservation list:
The reservation list is pretty sizeable, with at
least 260 reservations in the original Bill.

17. • Minister of crown consents: This is where
Welsh ministers must seek consent from UK
ministers for new assembly laws which affect
something the UK government remains
responsible for. They exist already where
assembly laws put duties on non-devolved
bodies. But there were fears the way they are
implemented in the draft Bill gives rise to an
"English veto" on Welsh laws,

18. • Necessity tests: These would be needed to be
passed if the assembly would make changes to
criminal or civil law to enforce its new laws.
The assembly would need to show the new
law was necessary to perform a devolved
function. This was needed, the UK
government argued, to preserve the single
jurisdiction between England and Wales while
allowing the assembly to still make effective
laws. There were concerns that the test would
reduce the assembly's ability to make law.

19. • Stephen Crabb has now confirmed the Bill will
be delayed until May at the earliest and
revealed substantial changes to the areas
complained about.
• The necessity test will not happen and Mr
Crabb will look at shortening the reservation
list.
• There are changes for minister of crown
consents too.

20. • The issue of a separate Welsh legal jurisdiction
has now been recognised as something that
must be addressed
• A judicial working party is being created to
look at how Welsh law can be made distinctive
to deal with the growing powers of the
Assembly

21. JR Challenges in Wales
• The following are examples of where these
challenges emerge from -
• Consultation
• Lack of Consultation
• Welsh Government Codes/Guidance
• Welsh Legislation

22. Consultation
• Public consultation is not new, but citizens are
today more aware of their rights and
opportunities to contribute to public policies.
• it has now become common for voluntary,
community or campaigning groups to seek
legal advice if they believe they can challenge
a policy, a decision or a programme of action
by a public body.

23. The Gunning Principles
• The Gunning Principles can be expressed in
short form as four simple phrases
• Formative stage proposals
• Enough information to allow intelligent
consideration
• Adequate time
• Conscientious consideration

24. Rhydyfelin Library

25. Rhydyfelin Library
• Consultation late 2014
• RL was not on the ‘hit list’, but added in when
final decision made
• Not a fair consultation
• RCT backed down just before trial July 2014

26. Ysbysty Glan Clwyd

27. Ysbyty Glan Clwyd,
• The decision to close a consultant-led maternity unit at
Ysbyty Glan Clwyd, without consultation and citing a
shortage of doctors, caused outrage.
• A shortage of obstetric doctors was blamed for the
announcement in February of the closure of the consultant-
led maternity unit at Ysbyty Glan Clwyd in Denbighshire, north
Wales.
• Betsi Cadwaladr University Health Board claimed the shortage
had made the service unsafe for expectant mothers.
• The board said it would cease obstetrics and gynaecology
services at the hospital for 12 months while it tried to solve
the problem.
• The announcement came out of the blue, with no
consultation. Frontline medical staff, the wider community
and politicians of all sides were outraged at the decision.

28. Ysbyty Glan Clwyd
• This is about failure to consult
• The health board had, in secret, devised a plan
that would see expectant mothers in the area
facing a two-hour round trip to either Bangor
or Wrexham if they needed a consultant.
• They refused to consult saying it was an
emergency
• But an emergency that had been brewing for 2
years!

29. Ysbysty Glan Clwyd
• In July 2015 Court ordered there be a
consultation
• Took place Sept 2015
• LHB backed down
• Chief Executive suspended then left
• Health Board taken into Special Measures

30. School Closures
Gwernyfed High School

31. Gwernyfed High School
• Popular Powys High School
• Earmarked for clousre
• JR challenge 2015
• Challenge based on Wales School
Organizational Code – failure to follow it when
drawing up proposal
• Powys Withdrew – but trying again

32. Denbighshire School Transport

33. Denbighshire School Transport Policy
• Parents of pupils at Ysgol Brynhyfryd, Ruthin,
launched JR proceedings against the public
authority claiming that they are being
punished by the council for living in a rural
community.
• Pupils of Ysgol Brynhyfryd who live in the
Bryneglwys area, 12 miles from the school,
were previously provided with a free taxi
service to the school bus pick up point as the
route was deemed too hazardous for pupils to
walk.

34. Denbigshire
• Under the council’s plans, the free taxi service has
been cut to save costs but no alternative has been
provided for the pupils.
• Parents are now being forced to transport their
children to the bus pick up point.
• Transporting the children is a concern for many of the
parents - often snowed in during the winter months
and are unable to drive to the bottom of their steep hill
due to severe ice.
• Parents are also concerned that with work
commitments, they are unable to transport the
children before and after school.

35. Denbighshire School Transport
• This case turned on the Learner Travel (Wales0
Measure
• S3 says that children should not have to make
their way over a hazardous route
• No dispute the 2 mile route to the pick up
point hazardous
• But DCC policy says its ‘parental responsibility’
to get children to pick p point
• That is not right – if hazardous

36. Legal Aid

37. Legal Aid
• LA is not dead yet (but on life support)
• Man of straw
• Community Contribution
• Uphill Battle – Courts impose a high bar – too
high

38. The Criminal Justice and Courts Act
2015, Part 4
• The Act brings in a number of changes affecting
judicial review, including third party
interventions, the materiality threshhold by
which a claim may be refused by a court, the
degree of financial disclosure required of those
funding JR, and, new rules on Cost Capping
Orders (previously termed PCO's or Protective
Costs Orders). The interpretation and application
of this Act may have serious consequences for
individuals and organisations intending to bring
legitimate challenges to unlawful behaviour by
public authorities

39. Materiality and the “highly likely”
test (Section 84)
• Section 84 of the CJCA 2015 introduces a new
‘materiality’ threshold for judicial review
applications. This requires the High Court to
refuse to grant permission or relief “if it
appears to the court to be highly likely that
the outcome for the applicant would not have
been substantially different if the conduct
complained of had not occurred”.

40. Financial disclosure (Sections 85-86)
• Sections 85 – 86 introduce a new requirement
for claimants to disclose information about
sources of funding available for litigation or
“likely to be available”. The information
provided must be taken into consideration by
courts when deciding whether to make a costs
order. Section 88 introduces a similar
requirement for the disclosure of information
by applicants for a costs- capping order.

41. Interveners and costs (Section 87)
• These new provisions reflect existing practice
by creating a presumption that third party
interveners will not generally recover their
own costs in any case except in exceptional
circumstances. More importantly, in a change
from existing practice, the CJCA 2015 creates a
new duty to award costs against the
intervener in cases where any one of a specific
list of conditions is satisfied.

42. • a) the intervener has acted, in substance, as the
sole or principal applicant, defendant, appellant
or respondent;
• b) the intervener’s evidence and representations,
taken as a whole, have not been of significant
assistance to the court;
• c) a significant part of the intervener’s evidence
and representations relates to matters that it is
not necessary for the court to consider in order
to resolve the issues that are the subject of the
stage in the proceedings; or
• d) the intervener has behaved unreasonably.

43. Costs capping orders (Sections 88-90)
• The stated purpose of Sections 88-90 is to
place the mechanism for costs protection in
public interest cases, developed following the
guidance of the Court of Appeal in Corner
House, on a statutory footing.

44. • PCOs were developed in a series of cases
culminating in the landmark Corner House
guidelines.163 PCOs are rare.164 However,
they have represented a significant common
law safeguard for access to justice in those
important cases, the hearing of which is in the
public interest, and which, without costs
protection, would not proceed.

45. • Section 88(6) provides that a court may only
make a costs capping order if it is satisfied
both that the proceedings are “public interest
proceedings” and that without such an order,
the applicant would be acting reasonably by
withdrawing or ceasing to participate in the
proceedings.

46. • Section 88(3) CJCA 2015 provides that a costs capping
order may only be made if permission to apply for
judicial review has been granted. This is a significant
change in practice. At present, PCOs can be sought at
any stage in proceedings.
• permission stage costs may be substantial and could
pose a significant deterrent to individuals with limited
means who seek to challenge unlawful activities by
Government and public agencies. Concern was
expressed during the passage of the Act that this
change could significantly restrict the ability of costs
capping orders to serve the public interest in ensuring
that public interest issues are considered by the courts.

47. Thank You
• Michael heads the Pubic/Administrative law department at Watkins
and Gunn and has undertaken a number of high profile claimant
judicial review challenges. These have been mainly in respect of
service closures and downgrades such as hospital, schools, libraries
acing for communities challenging local and national government.
He has been involved in a number of legal challenges testing the
devolved settlement in Wales. He has experience in acting for
children with special educational needs and in admission, exclusion,
transport and school closure cases. Michael is also recognised as a
leader in the field in claimant personal injury work (See ‘Chambers
UK’ 2015). He is the principle solicitor acting for the Trade Union,
Community, in Wales and the West Country. Michael is a former
president of the Cardiff & District Law Society, a member of the Law
Society Wales Committee, a Vice Chair of the Legal Aid Agency
Special Controls review Panel. He is a longstanding school governor
and a trustee of several charities.

48. THANK YOU
• The material for this presentation has been prepared solely for the benefit
of delegates. It is designed as an integral part of the presentation. It
should not be used for giving specific advice. No responsibility for any loss
or consequential loss occasioned by any person acting or refraining to act
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& Gunn. No part of this material may be reproduced in any form without
the prior permission of Watkins & Gunn. Any comments made in the
course of the presentation which may relate to a specific matter are
expressions of opinion or suggestions only and must not be construed as
advice.