SWALA Annual Lecture – Wednesday, 20th April – “Public Law: Solution or Swindle?”

Delivering the SWALA annual lecture at St John’s Chambers in Bristol on Wednesday 20th April 2016, Mr Justice Coulson offered an intriguing assessment of the areas of public law which he has been called on to consider during his judicial career.

Before his appointment to the bench, Mr Justice Coulson was a practitioner at the construction Bar and as a QB judge had covered the full range of QB work including crime. He has, as a result, largely become involved in public law work, other than in his specialist field, since becoming a judge.  He was therefore, after reminding us that the CPR does apply in the Administrative Court, able to provide an original and generalist’s view of the impact and importance of public law in five key areas, asking himself the question whether it served to provide solutions or rather was actually something of a swindle.

In public procurement, Mr Justice Coulson, having been initially sceptical of the effectiveness of the public procurement regime, had become convinced of its effectiveness in improving employer’s processes both in carrying out the assessment of tenders and accounting for their decisions.  And indeed in correcting real injustices.  He referred to his judgments in Bristol Missing Link v Bristol City Council [2015] EWHC 876 (TCC) and Woods Building Services v Milton Keynes Council [2015] EWHC 2011 (TCC) and expressed the hope that these cases, along with others in the procurement context, will guide contracting authorities in their decisions as to the degree of information to be disclosed to disappointed tenderers, and encourage them to adopt rigorous standards in their evaluations of bids in procurement processes.  Particularly as these often involve large sums of public money.

In planning, Mr Justice Coulson referred to the “seven familiar principles” set out by Lindblom J in Bloor Homes v SSCLG [2014] EWHC 754 (Admin) not only as a useful guide in planning cases, but also as a useful aide memoire in all other public law contexts. He noted the need for balance between the preservation of urban and rural landscapes and the provision of new, sensitive and profitable development and was confident that public law did provide solutions in this area.

In immigration, he commented on the complexity of the relevant law and commended the expertise of the specialist UTIAC judges. He regretted the proliferation of applications to the courts in individual cases, and asked whether certainty might better be served by a reduction in the number of cases which are stayed by the courts pending other judicial decisions. He also deprecated the reference to numerous authorities in relation to issues which are fundamentally matters of fact and and asked whether the number of cases which are reported and/or cited might be limited.  But noted that again, sometimes, real injustices are avoided.

In housing, he referred to the significant number of cases, and asked whether full judicial scrutiny was always the most appropriate form of review in cases with a significant social and discretionary element.

Finally, in the context of review of the decisions of regulatory bodies and ombudsmen, Mr Justice Coulson noted the rarity of cases in which intervention by the courts is necessary. However he also referred to situations in which judicial review has served as an important control on excessive or haphazard regulatory decision-making.

In conclusion, Mr Justice Coulson considered that public law could have an important function and positive impact, but that abuses were possible, and it did not necessarily follow that full judicial process was necessary in every context. He welcomed the interesting case load he has so far been asked to consider in Bristol, and looked forward to his remaining term as supervising judge for the Administrative Court for the Midlands and South West.

 

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