On Without Prejudice this week, Charon QC chairs as Kim Evans, commissioning editor of The Justice Gap and I discuss:
- the conviction of the Spectator over Rod Liddle’s piece on the Stephen Lawrence retrial;
- Hunt, Warsi and the ministerial code;
- the meaning of “quasi-judicial” (I have a fairly good rant against the term), and
- Richard Moorhead’s “case for code” – a plea for simpler laws.
It was great to welcome Kim – and I think it’s a good hour’s discussion.
Listen in the player below, subscribe to our RSS feed or subscribe to the podcast through iTunes.
I have to say, sadly, that I found all parts of this discussion disappointing. It was more like listening in to a better than average pub discussion than gaining insight from informed debate.
The discussion about Liddle sought to polarise choices as between freedom of expression and criminal behaviour and between criminal behaviour and public interest as if it had to be one or the other. We had another example only this morning on the radio, as a government minister sought to justify a proposal to “criminalise” forced marriages. The interesting, and constructive, debate is always as to what lies between the extremes.
The time devoted to “quasi-judicial” struck me as particularly self-indulgent and opinionated. I have to accept that time has moved on but anyone completing their legal education 35 years ago and anyone entering the public service up to the mid-80s would have been schooled in the term and should have no trouble understanding what it conveyed and demanded: a process of decision making that while not carried out by a judicial body is required to conform to judicial standards of independence, impartiality and the exclusion of extraneous considerations: quasi – “in the manner of” – judicial – “[standards] pertaining to judges and the legal process”.
If I have a problem with the current bandying of the term it is not that no-one knows what it means but that, as with so many over-used expressions, no-one is thinking about what it does mean – government included, it seems. So it come to signify nothing; becomes an ornament when it should be a defining statement of principle.
And that seems to me to sum up the Jeremy Hunt case too. Not a bad man, he clearly was not trained to act as a minister should act and not disciplined by his department in conduct becoming one. It is disingenuous to regard private discussions with vested interests a new corruption. They have always gone on. They are simply greatly facilitated by modern technology. But it should have been clear, and clearly stated, that Hunt must not use private communication for public business and must not use SPADs to bridge the gap made essentially by the process he was engaged in.
But where parties win what they consider to be the “right” to govern, and officials have learned to kow-tow to those they take to be their masters, these vital lessons in legitimacy will not be conveyed.
In the past, we knew that the way things look can seriously damage even the best efforts to do the right thing. The corruption of our times is that nothing really matters except the way things look.
Iain M Spardagus
I’m sorry you felt like that, Iain – we do our best.
On quasi-judicial, I know I bang on about it, but I do so because I think it’s really important. I must do a proper long blogpost about it, as I don’t think I’m managing to properly convey what my issue with it is. It’s not so much that people don’t understand it. They do, or think they do.
The problem is twofold: first, it implies there’s a separate large category of powers – let’s call them “less than QJ” – which ministers can lawfully exercise in a biased way. But there isn’t. Second, if there were such a category – less than QJ – then under the old 1950s approach, in which judges really did used to decide whether or not things were QJ, Hunt’s decision would not have been found to be QJ. It’s not quasi-judicial at all.
The actual logic of thinking in terms of 1950s public law concludes by saying Hunt’s decision was not QJ – he didn’t have to make findings of fact, or decide a specific two-party dispute, or sanction anyone, or hear evidence – and therefore his bias was lawful. That’s plainly wrong, and it’s why using the term QJ in the first place is misleading.
Of course I’ve gone on about it again now. I’m afraid I’ll probably keep doing so!
It’s okay, Carl. You are not banging on, now, you are explaining your position, and very cogently if I may say. And if it was not clear, I am with you on the danger of using terms as a substitute for meaning.
My response is that actually yes there is a large body of administrative decision making that is not “q-j”: decision making where the right of the minister to his policy is acknowledged, or where the power to appoint includes an amount of discretion. By contrast, there was no right to policy involved here and no room for personal discretion. He had to exercise judgment based on the evidence presented. If he had had to exercise it (mercifully, he was spared), in this case Hunt’s pre-disposition and subsequent conduct would have made it highly unlikely that he could have met the standards of independence or impartiality. He lacked or undermined those characteristics. I think we agree on that.
So, at the end of the day, I think we are close to ad idem. You don’t want q-j used because you think it prevents the right standards from being applied. I don’t want it used because it allows people to talk about the case without actually pausing to think what standards ought to apply: and those standards are the ones you think ought to apply.
So boo to quasi-judicial. Time to put it to bed. Let’s have meaning instead.
For some reason it’s not showing up on my US iTunes subscription.
I don’t understand that Alex – sorry. Does this link help? I can’t understand myself why “gb” is part of the link, and I wonder if that makes a difference for some reason.
Or try adding this feed to iTunes.
I don’t think we’re far apart, Iain, no. I agree with the first part of this (I think most of what ministers do probably falls within the “large body of administrative decision making” you mention):
but I don’t agree with what you say after “By contrast”. One of the several reasons I think QJ is misleading is that I think this was precisely a decision in which a large measure of policy was involved. There’s no objective or clear standard set in law about how much media “plurality” there has to be, against which a judge could simply assess whether a NewsCorp purchase of Sky would “be in breach” so to speak. The decision-maker’s policy judgment about how diverse media ownership must be is absolutely central to the decision.
As I said in an earlier post on all this, this decision
I think had this come to court in the early 1950s, the judges may well have said Hunt had no legal duty not to be biased precisely because his decision was not QJ. So I don’t think it’s QJ even if you believe in the concept of QJ.
Hi,
Thanks for these discussions and the cases, as I have been trying to define ‘quasi-judicial’ in another context. I think that your objection to administrative decisions being termed QJ is that this (erroneously) suggests that there is another class of decision making in public law that is not QJ where natural justice and Art 6 need not apply. Have I got that right? and if so, does QJ now mean a process that resembles an adversarial hearing, or something else?
Thanks, Julie.
To answer your last question first: I think it’s unimportant what QJ means – the point is that the phrase no longer tells us anything legally meaningful. So, no point worrying what it means.
The first thing, yes, you have got it right (although I wasn’t talking about article 6, just natural justice). I think talking as though the classification of something as QJ is what means you have to do it fairly, which is what the media have repeatedly done with Hunt, implies that any ministerial decision you would not classify as QJ – whatever that was – would not have to be made fairly. That is surely a wrong approach to public law in 2012, though it would have made legal sense 60 years ago.
Carl, nope both feedburner and iTunes both show 1st June as the most recent episode for some reason.
Annoying, Alex. I don’t understand that.
I’ve got a mad busy day tomorrow – but will see if I can solve it on Wednesday.
Great show, I thought. It left me wondering whether a decision by a prime minister to refer a minister for investigation only if they would be cleared, would be judicially reviewable (if backed by evidence)?
Also it seems you have your work cut out, as a new show may now be required given the utter cluelessness of Theresa May shortly afterwards…
Fixed, clearly it’s just slow to filter over sometimes.
Isn’t the problem with the expression ‘quasi-judicial’ that it’s now being used to mean something different from what it meant before? As Carl rightly says, the term as it was used in the old case law is now irrelevant, because it can no longer be said that only ‘quasi-judicial’ decisions need to be taken fairly. But the term now seems to be used to mean something different.
Isn’t the point rather that what fairness requires will depend on the type of decision that is being made? That would appear to be unobjectionable, and indeed obvious.
So when ministers make high policy decisions (for instance, when the Chancellor decides what to do with the economy), no one could seriously suggest that they were under a legal duty to consider representations from all sides. The minister would be perfectly entitled, for instance, to consider only the views of think-tanks that were sympathetic to the government. Of course it would be unlawful for the minister to take account of irrelevant considerations, such as inducements. But the obligation to have a fair procedure will clearly be very limited.
That’s different if the minister is making a decision that involves determining, for instance, how a policy should apply to a particular set of facts. Of course ministers are entitled to bring their political leanings and inclinations to bear when they make such decisions: that’s why the’re made by politicians rather than judges. But in these cases ministers may well be under procedural obligations, for instance, to allow the affected parties to make representations and to ensure they consider those representations properly.
Is it so daft for the government to produce guidance for ministers about how they should behave in the second category of cases? Yes, there must be a better way to describe those decisions than to call them ‘quasi-judicial’, because that term is already used to describe a distinction that is now defunct. But as long as we’re clear that QJ1 isn’t the same as QJ2, isn’t there a worthwhile distinction to be made?