Jersey Unreported Judgments

Court of Appeal - Judicial Review.

[2020]JCA114

Court of Appeal

16 June 2020

judgment on the papers

montgomery JA:

Introduction

1.        This is an application by Jonathan Tindall Scott  ("the Applicant") made to me as a single judge pursuant to article 13 of the Court of Appeal (Jersey) Law 1961, for leave to appeal a judgment dated 28 May, 2020 given by J A Clyde Smith, Commissioner, ("the Commissioner") Scott v The Minister for Treasury and Resources and the AG [2020] JRC 095 sitting alone in the Royal Court (Samedi Division) refusing to grant the Applicant leave to apply for a Judicial Review of the decision of the Minister for Treasury and Resources ("the First Respondent") to distribute the States of Jersey strategic reserve or other funds to businesses under phase 2 of the Government Co-Funded Payroll Scheme ("the Scheme").  The circumstances leading up to the introduction of the Scheme and the Applicant's criticisms of it are set out in the judgment of the Commissioner and I do not need to repeat them here. 

The issues

2.        The Applicant seeks to bring his application in the interests of the citizens of Jersey and in his own interest as a person who has been denied any benefit under the Scheme.  The Respondents argue that the Applicant does not have a sufficient interest in the Scheme to bring a challenge by way of judicial review.  This was a point that was left unresolved in the judgment of the Commissioner.  I shall deal with this first issue under the heading "Standing" below.  

3.        The principal issue on this application however is whether the Applicant has any arguable claim for judicial review.  The Applicant argues in summary that the Scheme discriminates unfairly against persons who do not qualify for support under the Scheme and is ultimately likely to be wasteful of the resources of the Government of Jersey.  He wants the matters raised in his evidence to be reconsidered by the First Respondent and different policy decisions taken in the light of guidance from the court.  He considers that the law should provide a remedy in response to his complaints of unequal treatment and unfairness. 

4.        The Respondents submit that the Scheme is the product of political judgment and is not susceptible to public law challenge.  The First Respondent has lawful authority to apply amounts from the Consolidated Fund and other States funds in support of the Scheme.  The Scheme has been discussed in the States Assembly and in briefings to States Members.  It was approved unanimously by the Council of Ministers on 20 April, 2020.  The Scheme guidelines have been approved by Ministers on the Coronavirus Government Support for Businesses Political Oversight Group.  The Respondents contend that the decision to implement and fund the Scheme is neither unlawful nor irrational and has been taken in a procedurally appropriate manner.  I shall deal with these arguments under the heading "The merits"

Standing

5.        A person may not bring an application for judicial review unless that person has a "sufficient interest" in the matter to which the claim relates, see Cooper v AG [2005] JCA 156 and Rule 16/2(11).  The modern approach to the question of standing (or locus standi) is to consider standing in the context of the particular claim.  The sufficient interest requirement is case specific and there is no general definition.  Some claimants may be considered to have sufficient standing where a claim is brought in the public interest even if they do not have any direct financial interest in the outcome.  As  Sedley J observed in R v Somerset County Council, Ex p Dixon [1998] Env LR 111, 117, that "there will be, in public life, a certain number of cases of apparent abuse of power in which any individual, simply as a citizen, has a sufficient interest to bring the matter before the court".  In my judgment if his claim has any merit the Applicant arguably has sufficient standing, at least at the leave stage, to bring this application for judicial review.  

The merits

6.        The ordinary rule is that the court will refuse leave to apply for judicial review unless it is satisfied that there is an arguable ground for judicial review having a realistic prospect of success.  For an application for judicial review to succeed in this case, the Court would have to be satisfied that the decision to implement the Scheme was arguably unlawful, irrational or flawed by procedural impropriety, see Warren v Lieutenant Governor [2017] (1) JLR 291 [3-4].  It follows that it is not enough for the Applicant to point to inequality or unfairness.  He must succeed in bringing his claim within the headings of illegality, procedural impropriety or irrationality. 

7.        The Applicant argues that a scheme could have been introduced in a manner that would have prevented the discrimination of which he complains.  However, the decision as to where, when and how economic support should be applied under the Scheme is quintessentially a political decision, the merits of which cannot be questioned before the court.  A challenge to the Scheme can be made through the Applicant's elected representatives or, if necessary, in an election.  That is what a system of representative democracy is for.  

8.        The Scheme may produce unfairness for some, but that does not make it susceptible to judicial review in the absence of irrationality or illegality.  The fact that the Applicant objects to the Scheme does not in itself mean that it is unlawful.  An appeal to principles of fairness or efficiency cannot transform a political decision into one that is vulnerable to public law challenge.  Many political decisions involve making hard choices and often result in disparity in treatment in individual cases, where citizens or groups of citizens may consider that they have been treated unfairly.  This does not mean that the decision is unlawful or irrational in the absence of evidence of a breach of law or manifest absence of valid reasoning.  

9.        The Applicant has not been able to point to any violation of law or absence of reason that might found a judicial review challenge.  The doctrine of ultra vires is of no assistance to the Applicant when it is clear that the First Respondent has the power to formulate policy in relation the appropriate method of support for business in Jersey.  The fact that Applicant disagrees with that policy formulation does not render the decision ultra vires. 

10.      Further the financial prudence of the Scheme is not a matter on which any court could adjudicate given the unpredictability of the future for the Bailiwick.  The long-term economic impact of the Scheme is a matter of speculation.  The court is not able to assess issues such as the possible future impact of quantitative easing (if any), the long-term effect of restrictions associated with the coronavirus pandemic or any consequential fall in the value of Jersey's reserves.  It is impossible to say there is an arguable case of irrationality based on the economic decisions that have been taken in implementing the Scheme given the manifest uncertainty that surrounds the possible economic and societal outcomes. 

11.      Finally, there is nothing in the procedure adopted that would give rise to any legitimate challenge. The consultation that has taken place in the face of pressing issues of public health and political economy appears to me to have been appropriate.  As the Commissioner observed: "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".  

12.      In my judgment for these reasons the Applicant has no realistic prospect of success in his application for Judicial Review and I refuse him leave to appeal to the Court of Appeal.  

Authorities

Court of Appeal (Jersey) Law 1961. 

Scott v The Minister for Treasury and Resources and the AG [2020] JRC 095. 

Cooper v AG [2005] JCA 156. 

R v Somerset County Council, Ex p Dixon [1998] Env LR 111, 117. 

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