Jersey Unreported Judgments

Judicial Review.

[2020]JRC095

Royal Court

(Samedi)

28 May 2020

Before     :

J A Clyde-Smith OBE., Commissioner, sitting alone

 

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY JONATHAN TINDALL SCOTT

Mr Scott appeared in person.

Advocate S. A. Meiklejohn for the First and Second Respondents.

judgment

the commissioner:

1.        The Applicant seeks leave to apply for a judicial review of the decision of the First Respondent ("the Minister") to distribute monies (transferred from the States of Jersey Strategic Reserve into other funds) to businesses under the Government Co-Funded Payroll Scheme.  He states in his application that the decision may have been made in conjunction with other Ministers or the Council of Ministers, but is challenged whoever and however it is made. 

2.        On 1^st May, 2020, the Deputy Bailiff listed the matter for an oral hearing, pursuant to Rule 16/2(4) of the Royal Court Rules.  In discussion with the Applicant, it was clear that he was concerned principally with phase 2 of the Government Co-Funded Payroll Scheme and the decision to approve and fund that phase of the Scheme (which I will refer to as "the Scheme") was made by the Minister on 24^th April, 2020, following its earlier announcement. 

3.        The relief sought by the Applicant is nothing if not bold: 

"1.      To place an immediate moratorium on spending under the proposed scheme or other scheme with broadly the same features.

2.        To overturn the decision.

3.        to invite alternative solutions or proposals into consideration; or,

4.        To consider the matter concluded (with the possibility that similar proceedings will arise if the Applicant decides they are necessary); or,

5.        Agree an immediate but significantly reduced level of support in-line with basic established income support levels.  A 'fair' and equal level of support that optimises public spending and minimises future taxation; or,

6.        Stipulate such conditions as may be deemed appropriate for the equitable operation of the scheme.

7.        To take into consideration the Applicant's suggestions for alternative options and give directions at the will of the Court."

4.        The grounds upon which this relief was sought, expanded upon at the hearing, can I think be distilled down to the following brief summary: 

(i)        The Applicant was made redundant on 1^st April 2020 and after a month, he will be entitled to income support but he will not benefit from the Scheme. 

(ii)       The Scheme does not treat islanders equally and discriminates against workers made redundant.  By way of example, a person made redundant will only be entitled to £100 per week after four weeks by way of income support, whereas a person who continues to be employed can indirectly benefit by up to £1600 per month, even if the business that employs him may not be viable and ultimately fails. 

(iii)      The Scheme risks squandering the finite reserves set aside for sustaining Jersey in what may become a very prolonged period of minimal economic activity. 

(iv)      In essence, the Scheme is unfair and the Island's reserve should be distributed more equally.  There is no justification in supporting business profits, but there is every justification for supporting individuals on an equal basis.  He, for example, has a mortgage but will receive no help towards it. 

5.        There are two hurdles which the Applicant has to overcome if leave for judicial review is to be granted:

(i)        Pursuant to Rule 16/2(11), leave will not be granted unless the Court considers that the Applicant has a sufficient interest in the matter to which the application relates, and

(ii)       The Court needs to be satisfied that there is an arguable ground for judicial review having a realistic prospect of success, and not subject to any discretionary bar, such as delay or any alternative remedy. 

6.        The arguable ground test was recently confirmed by Commissioner Beloff in Warren v Lieutenant Governor [2017] (1) JLR 291:

"3. The test for such leave in this jurisdiction, as applied in Welsh v Deputy Judicial Greffier [2009] JLR Note 37, is that set out by the Privy Council in Sharma v  Browne-Antoine (6) [2007] 1 WLR 780 at para 14(4):

'The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: see R -v- Legal Aid Board, Ex p Hughes (19692) 5 Admin LR 623, 628 and Fordham, Judicial review Handbook 4th ed (2004), p426.  But arguability cannot be judged without reference to the nature and gravity of the issue to be argued.  It is a test which is flexible in its application.'

4.        For an application for judicial review to succeed, the Royal Court would have to be satisfied that His Excellency's decision was unlawful, irrational or flawed by procedural impropriety (Planning & Environment Cttee -v- Lesquende Ltd (4) and for present purposes I must be satisfied that one or more of those grounds is arguably established on the material before me."

7.        In Sharma v Browne-Antoine & Others [2006] UKPC 57 the Privy Council added at page 787 that:-

"It is not enough that a case is potentially arguable: an Applicant cannot plead potential arguability to 'justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory process of the court may strengthen'.  Matalulu v Director of Public Prosecutions [2003] 4 LRC712, 733."

8.        I take the two tests in turn.

Sufficient interest

9.        The Applicant states that he had sufficient interest in the matter because he is a life-long Jersey resident with a stake in the use of public funds and has a moral duty owed to fellow islanders who may be disadvantaged by the Scheme, even if they are unaware of the implications.  At the hearing, the Applicant described himself as a stakeholder, who would benefit from the decision being overturned in that he could benefit from an alternative scheme in which the Island's reserves were more fairly distributed. 

10.      Advocate Meiklejohn, for the Minister, submitted that the Applicant did not have sufficient interest in the matter and that leave should be refused on that ground alone. 

11.      "Sufficient interest" is not defined in the Royal Court Rules, but it was considered in the case of In the matter of the representation of Cooper [1992] JLR 215, in which Mr Cooper applied by way of representation for an order requiring the Attorney General to justify certain advice given to the States Assembly and to be directed to withdraw that advice.  The Court dismissed the representation, finding inter alia that it could not see that the Representor had suffered any damage at all in respect of this matter, let alone particular, direct and substantial damage over and above that suffered by the public at large. 

12.      That decision was upheld on appeal (Cooper v AG [2005] JCA 156), where P D Smith Q.C., presiding, said this at paragraphs 14-17:-

"14.    The only mention of interest made by Mr Cooper in the documents supplied by him to this Court or the Royal Court is his statement in his representation that he claims entitlement to a fair and impartial hearing 'in common with all island residents'.  The Solicitor General contended that in the light of the seminal decision of the House of Lords in Reg v IRC, Ex p Federation of Self-Employed [1982] AC 617, Mr Cooper could not establish the requisite 'sufficient interest.'

15.      In my opinion, consideration of 'sufficient interest' at the leave stage requires examination of all the available material.  This is because standing is a relative concept to be judged in the light of the potency of the case.  The greater the possibility of an abuse of power the more likely it is that the Applicant will be deemed to have a sufficient interest, particularly if otherwise the alleged abuse would probably go unexamined.

16.      Looking at the material produced by Mr Cooper from this perspective, it is significant that the allegations in the representation and the Notice of Appeal are mere assertions, unsupported by any real evidence or argument.  If bald assertions of illegality or lack of vires were to be held sufficient to entitle Applicants to bring proceedings for judicial review of the decisions of public bodies in this Island, it would not be long before its administration would grind to a halt.  Clearly more is required.

17.      It is rather artificial to say that Mr Cooper would not have had 'sufficient interest' if he had attempted to initiate proceedings for judicial review because he has no case.  Rather, one might more realistically say that any attempt on his part to do so would be bound to fail in limine because he has no case.  Either way, of course, the result would be the same."

13.      In the House of Lords seminal decision ([1982] AC 617) cited by the Court of Appeal, a Federation representing self-employed and small businesses applied for judicial review of a decision by the Inland Revenue to grant a so called amnesty to some 6,000 casual workers in Fleet Street in respect of tax arrears in return for arrangements in which future tax would be paid.  The Divisional Court had granted leave ex parte, but at the hearing inter partes held that the Federation had not "sufficient interest" under the equivalent of our Rule 26/2(11) to claim the declaration and order sought.  That issue was taken on appeal to the Court of Appeal, who by a majority found that the Federation did have sufficient interest to apply for judicial review.  That decision was appealed to the House of Lords, where it was held -

"(1)     That it was unfortunate that the courts below had taken locus standi as a preliminary issue for whilst there might be simple cases where it was appropriate at the earliest stage to find that the Applicant for judicial review had no interest at all, or no sufficient interest to support his application and therefore it was correct at the threshold to refuse leave to apply, in other cases, of which the present was one, that would not be so, and the question of sufficient interest must be taken together with the legal and factual context of the application for R.S.C., Ord. 53, 4.3(5) required sufficient interest in the matter to which the application related, and that matter in the present case necessarily included the whole question of the statutory duties of the revenue and the breach or failure of those duties of which the federation complained....

(2)       That the appeal must be allowed since looking at the matter as a whole, the Divisional Court although justified on the ex parte application in granting leave, ought, at the hearing inter partes, having regard to the nature of "the matter" raised to have found that (per Lord Wilberforce, Lord Fraser of Tullybelton and Lord Roskill) the federation merely as a body of taxpayers had shown no sufficient interest in that matter to justify its application for relief...; (per Lord Diplock) the federation had completely failed to show any conduct of the revenue that was ultra vires or unlawful...; (per Lord Scarman) the federation, having failed to show any grounds for believing that the revenue had failed to do its statutory duty, had not shown an interest sufficient in law to justify any further proceedings by the court on its application..."

14.      Quoting from the judgment of Lord Wilberforce:

"There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply.  The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications.  But in other cases this will not be so.  In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the Applicant in relation to those powers or duties, and to the breach of those said to have been committed.  In other words, the question of sufficient interest cannot, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context.  The rule requires sufficient interest in the matter to which the application relates.  This, in the present case, necessarily involves the whole question of the duties of the Inland Revenue and the breaches or failure of those duties of which the respondents complain."

15.      In R v Somerset County Council and ARC Southern Limited ex p. Dixon [1998] Env. I.R. 111, Mr Dixon applied for leave for judicial review in respect of a conditional grant of planning permissions by the Council to ARC Southern Limited to extend its limestone quarrying operations.  The Council argued that Mr Dixon did not have "sufficient interest" because he was not a landowner and had no personal right or interest threatened by the development which was the subject of the grant of planning permission.  Sedley J cited the test applied in the above cases and provided a gloss to it:

"Within this carefully elaborated proposition, it has become clear that the following elements need to be highlighted.

(a)       The threshold at the point of the application for leave is set only at the height necessary to prevent abuse.

(b)      To have 'no interest whatsoever' is not the same as having no pecuniary or special personal interest.  It is to interfere in something with which one has no legitimate concern at all; to be, in other words, a busybody.

(c)       Beyond this point, the question of standing has no materiality at the leave stage.

(d)      At the substantive hearing 'the strength of the Applicant's interest is one of the factors to be weighed in the balance': that is to say that there may well be other factors which properly affect the evaluation of whether the application in the end has a 'sufficient interest' to maintain the challenge and - what may be a distinct question - to secure relief in one form rather than another.

Nothing in the decided cases, in my judgment, compels this court to refuse leave, any more than (pace the obiter dictum of Purchas L.J cited by Otton J. in the Greenpeace case, below, at 349), it requires it to refuse relief, where the interest of the Applicant is shared with the generality of the public".

16.      Sedley J refused the application for leave but did conclude that Mr Dixon had standing:

"Mr Dixon is plainly neither a busybody nor a mere troublemaker, even if the implications of his application are troublesome for the intended respondents.  He is, on the evidence before me, perfectly entitled as a citizen to be concerned about, and to draw the attention of the court to, what he contends is an illegality in the grant of a planning consent which is bound to have an impact on our natural environment.  That his application, were it to succeed, would also unravel a series of environmentally beneficial steps represented by the nine ancillary agreements cannot reduce or qualify any illegality he can show in the grant which he seeks to challenge."

17.      I draw from these authorities the proposition that, whilst there may be simple cases in which leave should not be granted because the person has no interest at all, applications by "busybodies" which are tantamount to an abuse of the process, in other cases, as per the Court of Appeal in Cooper v The Attorney General, consideration of "sufficient interest" at the leave stage requires an examination of all the material before the Court.  As a citizen the Applicant is perfectly entitled to be concerned about decisions in relation to the Island's reserves which he contends are illegal, irrational or flawed by procedural impropriety (as per R v Somerset County Council and ARC Southern Limited ex p. Dixon) and I decline therefore to deal with the question of his sufficient interest in isolation and without considering whether he has arguable grounds for judicial review which have a reasonable prospect of success. 

Arguable grounds

18.      It is trite law, as Advocate Meiklejohn submits, that the traditional grounds for judicial review are illegality, irrationality and procedural unfairness, with these now augmented by the ground that the decision is incompatible with the Applicant's rights under the ECHR, as incorporated into domestic law in Jersey through the Human Rights (Jersey) Law, 2000. 

19.      By way of background, the Court can take judicial notice that the COVID-19 virus has caused world-wide disruption to economies and everyday life.  This is no different in Jersey where, since the Emergencies Council first met to discuss COVID-19 on 12^th March 2020, there has been wide-ranging disruptive impact to local businesses.  This was first as a result of Government advice aimed at slowing the spread of COVID-19.  This included advice for (i) only essential travel in and out of Jersey, (ii) islanders to practise social distancing from persons outside their households and to work from home where possible and (iii) advice for the elderly and vulnerable to isolate.  Then in late March, there were directions from the Government for certain businesses to close (for example, public houses, gymnasiums, night clubs, hair salons) or to radically alter/reduce their operating model (for example, restaurants and cafes only being permitted to serve take-away food) before the "Lockdown" or "Stay at Home" order came into effect on 30^th March 2020 through the COVID-19 (Restricted Movement) (Jersey) Order 2020.

20.      Notwithstanding that the Island is now moving through the phases of the Safe Exit Framework, there are prevailing restrictions on businesses pursuant to the COVID-19 (Workplace Restrictions) (Jersey) Order 2020 (and previously the COVID-19 Restricted Trading (Jersey) Order 2020 (as amended)), and furthermore, the continuing requirements for social/physical distancing and the travel restrictions will impact businesses for some time. 

21.      The Public Finances (Amendment of Law)(Jersey) Regulations 2020 made by the States of Jersey on the 24^th March 2020 amended the Public Finances (Jersey) Law 2019 ("the Law") to enable the Minister under Article 2 to withdraw amounts from the Consolidated Fund and other States funds if he or she is satisfied that a state of emergency has been declared under the Emergency Powers and Planning (Jersey) Law 1990 or the Minister is satisfied that there exists an immediate threat to the health and safety of any of the inhabitants of Jersey, to the stability of the economy in Jersey  or to the environment (Article 24 (2)).  The Projet to those Regulations provides at paragraph 1.1:

"1. Overview

1.1      The Coronavirus pandemic will have a significant social and financial impact on the lives of Islanders and presents a significant level of challenge for Jersey's economy.  During this unprecedented period of uncertainty for the Island, it is vital that the Minister for Treasury and Resources can make available sufficient funds to support Islanders and businesses on a timely basis.

1.2      The proposed Regulations, if approved by the Assembly, will enable the Minister to make these decisions in a timely manner.  They provide the Minister with powers to withdraw amounts from the Consolidated Fund and other States funds, under Article 24 of the Law, because a state of emergency has been declared or there exists an immediate threat to the health and safety of islanders, or to the stability of Jersey's economy or to the environment.  The current Covid-19 pandemic falling into an emergency situation as defined by Article 24 of the Law."

22.      The measures introduced include the Business Loan Disruption Scheme, the deferral of GST and Social Security payments, the Jersey COVID-19 Special Situations Fund and the Scheme.

23.      Advocate Meiklejohn pointed out that the Scheme cannot be considered in isolation as it is just one piece of the wider jigsaw of the economic and social support framework which has been adopted and/or modified to support Islanders during the COVID-19 crisis.  In addition to the measures mentioned above, there is also Income Support which those on low or no income may apply for if they have been continuously ordinarily resident in Jersey for at least five years and are not otherwise excluded from claiming benefit.  For unemployed persons with less than five years' residency in Jersey, there is also the COVID Related Emergency Support Scheme (CRESS). Advocate Meiklejohn submitted that in considering both the initial economic and social response to COVID-19 and the ongoing planning for the economic recovery of Jersey, the Government has had regard to the need to ensure suitable economic protection for all islanders. 

24.      Phase 1 was effective for the period 20^th to 31^st March for certain businesses which faced disruption during this time and is now closed.  Phase 2 covers the period 1^st April to 30^th June 2020 and is subject to review regularly and may be extended, with or without modifications, if disruption continues and the Minister considers in her discretion, and in consultation with the Council of Ministers, that it is appropriate to do so to meet the overriding objectives of the Scheme and the broader economic recovery plan for Jersey.  Phase 2 offers greater financial support over a longer period than Phase 1 and it also applies to many different types of organisations. 

25.      The Treasury and Exchequer Ministerial Decision Report of 24^th April, 2020, prepared for the purpose of the Minister's decision to approve and fund the Scheme sets out the background and the key aims of the Scheme as follows:

"2.      Background

The outbreak of COVID-19 presents a public health emergency and the measures necessary to combat the virus are precipitating acute economic crisis that presents significant risk to Jersey's economy.  To support the economy through the crisis, the Government of Jersey has announced a bold package of interventions, which includes the Government Co-Funded Payroll Scheme.

The Government Co-Funded Payroll Scheme: Phase 2 is being introduced to assist employers and employees whose businesses have suffered material detriment as a result of the COVID-19 global pandemic ("COVID-19") and the circumstances brought about by COVID-19.

The key aims of the scheme are as follows:

·         Support islanders' livelihoods, by ensuring employment and allowing workers to continue to benefit from a reasonable level of income to avoid hardship during the crisis and preserve demand to support an economic recovery once social distancing and Stay at Home restrictions are lifted.

·         To maintain, as far as possible, existing employment relationships so that businesses are able to retain trained and experienced staff.  As far as possible, employees should be kept in employment that is as similar as practicable to the situation they were in pre-COVID-19.

·         Along with other economic support measures being taken by the Government, to allow businesses and self-employed individuals a greater chance to remain solvent during COVID-19.  This should also allow for businesses to resume normal business activity where appropriate as soon as possible post COVID-19, once restrictions are eased.

·         Ultimately the scheme aims to accelerate the recovery of the economy post COVID-19 by ensuring that businesses and employment income can restart quickly once restrictions are eased.

·         To support Charities and their work in the community during COVID-19, and their paid employees.

26.      Thus the Law has been amended to enable the Minister to withdraw and apply amounts from the Consolidated Fund and other States funds in the circumstances that have arisen.  The Scheme was approved unanimously by the Council of Ministers on 20^th April, 2020, and has been discussed in the States Assembly and in briefings to States Members.  The Scheme guidelines have been viewed and approved by four Ministers that form the Coronavirus Government Support for Businesses Political Oversight Group. 

27.      The Applicant relies on all three traditional grounds for judicial review namely illegality, irrationality and procedural unfairness, although it is fair to say that the main thrust of his argument was as to the legality of the Minister's decision.  He does not argue that the decision of the Minister is incompatible with his rights under the ECHR.  Nor does he dispute the fact that COVID-19 presents a public health emergency and that measures are necessary to support the economy.  The centrality of his challenge, as he put it, is that the Scheme disadvantages one group and advantages another and spends reserves in a way which risks jeopardising the very thing it is trying to protect; jobs and prosperity, along with financial security for all islanders.  A law is only administered lawfully, he says, when it is administered justly and thus an unfair distribution is an unlawful one.

28.      The Applicant referred to the preamble to the States of Jersey Law 2005, which provides as follows:

"AND WHEREAS Jersey wishes to enhance and promote democratic, accountable and responsive governance in the island and implement fair, effective and efficient policies, in accordance with the international principles of human rights"

29.      In his view, the policies underlying the decision were unfair, irrational and flawed, rendering the decision fundamentally illegal.  A Minister can only make decisions that are fair and just, and it was for the Court to decide what is fair and just; if the Court decides that the decision is unfair, then it is illegal.  An unfair decision would also be perverse or irrational and constitute procedural impropriety.

30.      I agree with Advocate Meiklejohn that the Applicant has not set out any arguments that could form the basis for judicial review.  The Applicant puts forward political and fiscal arguments in respect of the Scheme, but its creation and funding are political acts that cannot be challenged, declared unlawful or struck down by the Court. 

31.      The facts in this case have some analogy with the facts in the case of In R (McLean) v First Secretary of State and Another [2017] EWHC 3174 (Admin), where the applicant, a politician in Northern Ireland, claimed that the decision of the Government to enter into a confidence and supply agreement with the DUP was unlawful and could not lawfully be carried into effect.  What was contemplated by the confidence and supply agreement was that the expenditure commitment in the agreement would be presented to Parliament and approved by Parliament, a process which left no room for doubt that Parliament had authorised the provision of monies out of a central fund for this purpose.  The applicant said this was not enough and that there was an implied limit under the common law, which governs expenditure of money by central government when using funds voted by Parliament for the relevant purposes. 

32.      It was held that there was no support for such a principle of the common law.  The case contrasted with the case of Fire Brigades Union [1995] 2 AC 513, which was concerned with the imposition of tariffs for which there was no lawful authority and Porter v Magill [2002] 2 AC 357 where powers were being exercised, not for the purpose for which they were conferred.  In McLean, Parliament itself would approve the provision of monies out of central funds pursuant to the spending commitments under the confidence and supply agreement and there was no unlawfulness involved.  The making of the confidence and supply agreement and the announcement of spending commitments were political acts which could not be challenged, declared unlawful or struck down in a court of law. 

33.      The Applicant in this case does not dispute that the Minister has the power under the Law to allocate funds to the Scheme and that in exercising her powers under the Law, she was doing so in good faith and for the purposes of that Law.  It is not suggested that she took into account irrelevant considerations or disregarded relevant considerations. He can point to nothing unlawful in the decision she made. 

34.      His complaint is against the terms of the Scheme itself which he says is unfair to those, like him, who have been made redundant.  He wants the decision of the Minister to approve and fund the Scheme not only to be set aside, but for the Court to put in place another scheme which distributes the funds in a manner which he says would be more equitable and benefit him and others in his position.  He wants that new scheme to be formulated by the Court in a case involving him and the Minister and then imposed by the Court upon the Minister and the democratically elected government of Jersey, a proposition that would give him an influence over governmental policy for which he has no democratic mandate and which would have the Court usurping the role of government.  

35.      The Applicant gives no consideration to those many businesses which are currently benefitting from the Scheme and as to how their interests should be represented in the process he envisages.  Nor does he appear to consider how the millions that have already been expended under the Scheme would be recovered from the businesses who have received them, if the funding of the Scheme is held to be illegal.  The process he envisages for arriving at a scheme that he would regard as fair is simply not one which a court of law can entertain. 

36.      The Applicant does not suggest that the decision of the Minister is discriminatory in the sense prohibited under the Discrimination (Jersey) Law 2013, but asserts the very broad proposition that any decision which is otherwise lawful, can none the less be struck down by the Court as unlawful on the basis that it is unfair in some general sense, of which the Court would be the sole arbiter.  There is no authority to support such a proposition which, if accepted, would give the Court a far reaching power to involve itself in matters political, as it is fundamentally a political decision as to how the Island's reserves should be utilised and distributed in these circumstances.  It really would result in the Court being flooded and public bodies harassed by irresponsible applications.  

37.      In short the Applicant's complaints are as to political acts which cannot be challenged as unlawful through the Court by way of judicial review.  His contentions, therefore, as to the lawfulness of the Minister's decision of 24^th April, 2020 to approve and fund the Scheme have no realistic prospect of success. 

38.      Similarly, the Applicant's argument that the decision of the Minister to approve and fund the Scheme was irrational has no realistic prospect of success.  This was a scheme approved by the Council of Ministers and subjected to scrutiny by the States Assembly, I believe on three occasions.  I note it is also broadly similar to the schemes in force in the United Kingdom and numerous other jurisdictions.  The Applicant cannot point to any material defect in the decision making process or violation of our law or the constitutional principles governing the exercise of official power and cannot say that the decision was oppressive. 

39.      As to procedural impropriety, this is concerned essentially with the application of the rules of natural justice to persons likely to be directly affected by the decision.  They should be given adequate notice of what is proposed so that they can make representations, appear at a hearing (if one is to be held) and prepare their own case and answer the case they have to meet.  

40.      It cannot sensibly be argued that the Applicant is directly affected by the Scheme and as a matter of natural justice was entitled to these protections.  His arguments, such as they are, under this head have no realistic prospect of success. 

Conclusion

41.      The Applicant does not, and cannot in my view, assert any breach of his rights under the ECHR.  He is in the same position as any other person in this jurisdiction with an interest as to how the funds of the States of Jersey are to be deployed.  For the reasons he has put forward, he disagrees with the Scheme, which he regards as being unfair to those, such as him, who have been made redundant as a result of this pandemic.  Whatever the merits of his views in this respect may be, his complaint is as to political acts which cannot be challenged, declared unlawful or struck down in a court of law.  His remedy lies within the political arena.  None of the arguments he has put forward have any realistic prospect of success in an application for judicial review.  The same applies to the extent that his application relates to the decision of the Minister to approve and fund phase 1 of the Scheme. 

42.      Leave is therefore refused.

Authorities

Royal Court Rules.

Warren v Lieutenant Governor [2017] (1) JLR 291

Sharma v Browne-Antoine & Others [2006] UKPC

In the matter of the representation of Cooper [1992] JLR 215

Cooper v AG [2005] JCA 156

R v Somerset County Council and ARC Southern Limited ex p. Dixon [1998] Env. I.R. 111.

Human Rights (Jersey) Law, 2000

COVID-19 (Restricted Movement) (Jersey) Order 2020

COVID-19 (Workplace Restrictions) (Jersey) Order 2020

COVID-19 Restricted Trading (Jersey) Order 2020 (as amended)

The Public Finances (Amendment of Law)(Jersey) Regulations 2020

Public Finances (Jersey) Law 2019

Emergency Powers and Planning (Jersey) Law 1990

States of Jersey Law 2005

R (McLean) v First Secretary of State and Another [2017] EWHC 3174 (Admin)

Fire Brigades Union [1995] 2 AC 513

Porter v Magill [2002] 2 AC 357

Discrimination (Jersey) Law 2013