IN THE HIGH COURT OF JUSTICE

This is the judgment of the Court. These two appeals have been heard together because they raise a common issue as to the powers of the Immigration Appeal Tribunal (“IAT”) and the Court of Appeal (a) to review the determination of the IAT, where it is shown that an important part of its reasoning was based on ignorance or mistake as to the facts; and (b) to admit new evidence to demonstrate the mistake.

Doubt has been thrown on these issues by apparently conflicting approaches in two separate lines of Court of Appeal authority. A strict approach was taken in Kibiti v Home Secretary [2000] Imm AR 594, and more recently in AE and FE v Secretary of State [2003] EWCA Civ 1032.A more flexible approach was developed in three cases: R v Home Secretary ex p Turgut [2001] 1All ER 719; R v IAT ex p Haile [2002] INLR 283; and A v Secretary of State [2003] INLR 249. This more flexible approach has been followed without detailed argument in several other cases, including: Khan v Secretary of State [2003] EWCA Civ 530; R (Tataw) v Secretary of State [2003] EWCA Civ 925, [2003] INLR 585; Polat v Secretary of State [2003] EWCA Civ 1059; and Bagdanavicius v Secretary of State [2003] EWCA Civ 1605. In another, the Secretary of State himself relied, without objection, on new evidence (about conditions in Russian prisons) produced for the first time in the Court of Appeal: Batayav v Secretary of State [2003] EWCA Civ 1489.

However, doubts have been expressed. In Polat (at para 28), May LJ noted the suggestion that previous decisions of this court had been per incuriam which he said “may need to be considered upon full argument in a case in which it really matters”. In Bagdanavicius, Auld LJ (in a judgment agreed by the Lord Chief Justice and Arden LJ) having referred to the second line of authority, commented (para 72):

“What all that does for the integrity of our present system of judicial review… or for the appellate process and the reality of what remains of the principle of finality, is open to question. It may soon be time for Parliament and/or the Courts to take a more comprehensive and principled look at both forensic processes with a view to reshaping their structures and jurisdiction so that the form and substance of what the courts are doing bear some resemblance to each other.”

As that passage recognises, there is an underlying tension in these cases between the “anxious scrutiny” appropriate to asylum cases (Bugdaycay v Secretary of State [1987] AC 514, 531E) and the important, but sometimes conflicting, principle of finality. Given the number of recent Court of Appeal cases raising this point, we agree with Auld LJ that the apparent difference of approach requires early resolution.

In the present case, Mr Kovats for the Secretary of State submits that the strict line is to be preferred. As we understand it, his main object of attack is A v Secretary of State, which, he says, was per incuriam, because it was decided without reference to Kibiti, and based on a misinterpretation of Turgut and Haile. The later cases (except AE and FE) wrongly treated the issue as settled by A v Secretary of State, although they may be defensible on their facts or on the basis of concessions made in them.

We will first summarise the facts of the two cases before us, and the statutory framework. It will then be necessary to consider the relevant principles of general administrative law, before analysing in more detail the relevant asylum cases, and drawing conclusions.

Factual background

We will refer to the two appellants respectively as “E” and “R”.

E is an Egyptian national who has lived outside Egypt all his life. He came to this country from Bangladesh in April 2001 and claimed asylum. His case is that he is a sympathiser of the Muslim Brotherhood, and that his family, particularly his father, had been strongly involved in Muslim Brotherhood activities. He said that he had left Bangladesh because the Egyptian authorities were looking for him and that he could not renew his passport without going to Egypt. He claimed that if he were required to return to Egypt he would be subject to risk of detention and torture. His application for asylum was refused by the Home Secretary, and that refusal was confirmed on appeal by the Adjudicator and by the IAT.

The IAT hearing took place on 22^nd October 2002, but for reasons which have not been explained the decision was not issued until 4^th April 2003. The Tribunal accepted (contrary to the finding of the Adjudicator) that there was evidence that Muslim Brotherhood members were detained and arrested in Egypt. However it concluded that the arrests in the year 2000 were related to the elections in that year, and that most of those arrested were released after a short period (para 58). It recorded that the Adjudicator had properly rejected the appellant’s evidence on a number of points. It concluded:

“As the Adjudicator rightly found the appellant’s claimed membership of the Muslim Brotherhood is not such as to render him liable to persecution and his activities if any have been at a very low level and have resulted in very little difficulty for him either in Pakistan or Bangladesh.

There is no evidence before the Tribunal or before the Adjudicator that the appellant had become involved in assisting those engaged in international conflict. She agreed (that) the core of the appellant’s story had been consistent but in relation to other matters it was so lacking in credibility and the central core of his case lacking in any facts which led her to dismiss the appeal and find that he did not have a well-founded fear of persecution if returned to Egypt. There is no error of law in that finding. The Tribunal has regard to the guidelines in Borissov [1996] Imm AR 526 and finds there is no reason to set aside the findings of the Adjudicator after taking into account the objective evidence in relation to the treatment of the Muslim Brotherhood in between the year 2000 and 2002 by the Egyptian authorities” (para 66-7).

(Borissov explained the principles applicable to appeals to the IAT on issues of fact; the approach was recently confirmed by this Court in Indrakhumar v Secretary of State [2003] EWCA Civ 1677.)

On receipt of that decision, E applied to the IAT for permission to appeal to the Court of Appeal. He challenged the finding that the arrests were solely related to the year 2000. He sought to rely on “subsequent objective evidence”, in the form of two reports, which had come into being since the hearing but before the promulgation of the decision.

The first was the Human Rights Watch Report 2003, published in January 2003. It referred to the Government intensifying its “crackdown on real or suspected political opponents”; and to “hundreds of arrests during 2002 of suspected Government opponents”, the “vast majority” of those targeted being alleged members of the banned Muslim Brotherhood. It also said that police and security personnel “continued to routinely torture or mistreat detainees in some cases leading to death in custody.” It noted as a “positive development” that the authorities had referred a number of police personnel accused of torturing suspects to trial; but said that the authorities did not investigate the vast majority of allegations of torture. The other report was that of the World Organisation Against Torture, dated 27^th January 2003, which referred to arbitrary pre-trial detention of 15 members of the Muslim Brotherhood.

Permission to appeal was refused by the IAT. Of the two reports, it said:

“The Tribunal can only determine an appeal on the objective evidence before it at the time of the hearing and those reports were not before the Tribunal.”

Generally the IAT considered that the grounds of appeal amounted to no more than a disagreement with its findings on the objective evidence before it.

R is an Afghan national who came to this country in August 2001 and immediately claimed asylum. The grounds were that he was a convert from Islam to Christianity, and that he feared persecution on that ground if sent back to Afghanistan. The Adjudicator generally accepted R’s evidence, but rejected the claim. He considered that, at the time of R’s departure from Afghanistan, he had had a well-founded fear of persecution; but that, since the Taliban were no longer in power, his fear was not now justified. This decision was upheld by the IAT. Its hearing was held on 23^rd April 2003, but its decision was not promulgated until 19^th August 2003.

The principal reason for rejecting the claim was that there was no credible evidence of a risk to apostates following the removal of the Taliban. The IAT noted that the appellant’s case was unsupported by any recent evidence of conditions in Afghanistan. It commented:

“The appellant’s objective evidence consisted of the US State Department Report on International Freedom for Afghanistan and Iraq, for the year 1999 (published in 2000). These documents are published every year, but the appellant chose to rely on documents, which predated the removal of the Taliban and the new era of religious freedom in Afghanistan. We are unable to place any weight on either of these reports today.

Mr Blundell for the respondent said that he had not filed the CIPU Country Report for October 2002 on Afghanistan, as it now does not mention apostasy at all. Neither party produced any current US State Department Report or material other than that mentioned.”

On 1^st September R applied for permission to appeal, relying on a new CIPU report dated April 2003. This included the following statement:

“6.44.

In a report dated July 2002 UNCHR Geneva reported that a serious risk of persecution continues to exist for Afghans suspected, or accused, of having converted from Islam to Christianity, or Judaism. Conversion is punishable by death throughout Afghanistan, however at the time the report was written no such harsh punishment was reported.”

R also relied on an expert report by a Dr Gopal, dated 3^rd September 2003, supporting R’s case as to the risk to converts in Afghanistan.

Permission was refused by the IAT. It said:

“The grounds of appeal contend that the Tribunal should have taken into account the April 2003 CIPU country report which the Home Office presenting officer did not present at the hearing (nor did the appellant), despite the Tribunal having signed its determination on the day of the hearing. There was a delay of almost four months in administrative promulgation of the determination, during which time it is alleged that the Tribunal should have reviewed the determination of its own motion. That is not a proper ground of appeal especially as the April 2003 CIPU country report was not available for tribunals in April but in May 2003…

It is not in the interests of certainty that where there are administrative delays after the Court or Tribunal has signed its decision for promulgation, it should be expected to record all pending decisions on the issue of new Home Office evidence such as a CIPU country report. The Tribunal decides the appeal on the evidence of submissions and other documents actually before it at the hearing (or after, if leave is given for post-hearing service of additional relevant documents).”

Permission to appeal in both cases was granted by Buxton LJ, who directed that they should be heard together. In the light of the apparent conflict between recent Court of Appeal decisions (he referred in particular to AE and FE and Khan; see above), he considered that the court should have the opportunity to consider –

“the jurisprudential basis of its power to overturn appeal decisions of the IAT on the basis of material not before the IAT”.

Statutory Provisions

As is well known, the legislation in this field has been subject to frequent amendment. Care is therefore required in identifying the provisions in force at any relevant time. For present purposes it is sufficient to refer to the statutory provisions governing the rights of appeal to the Tribunal and this Court. They are found in the Immigration and Asylum Act 1999 (“the 1999 Act”), the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) and the Immigration and Asylum Appeals (Procedure) Rules 2003 (“the 2003 Rules”). Although, as we will explain, the 2002 Act applies for certain purposes, the appeals to the IAT were governed by the 1999 Act, under which the grounds of appeal were not confined to points of law (cf 2002 Act s 101(1) which now confines appeals to the IAT to points of law). What follows is intended as a summary of the law at the relevant time, not a definitive exposition.

It is relevant to some of the arguments of the appellants that the 1999 Act introduced what was called a “one-stop” regime for appeals. This is explained in Macdonald’s Immigration Law and Practice 5^th Ed para 18.108:

“One of the aims of the Immigration and Asylum Act 1999 is to put an end to the possibilities of sequential appeals under the Immigration Act 1971 and Asylum and Immigration Appeals Act 1993. Under those Acts it was possible for an applicant to enjoy an appeal under the rules (eg a student appeal), then a deportation appeal for overstaying, and finally an appeal against a refusal to revoke a deportation order, on asylum grounds… The one-stop procedure is the main mechanism by which the Government seeks to ensure that all possible grounds of appeal, including asylum and human rights or discrimination grounds, by the principal applicant, and all members of the family, are dealt with together. ….”

The determination of appeals in the present case is governed by Part IV of Schedule 4 to the 1999 Act. (Following the enactment of the 2002 Act, the 1999 provisions continue to apply in relation to “events which took place before 1^st April 2003”: see 2002 Act (Commencement No 4) Order art 3-4.) An appeal could be made to the adjudicator on the grounds (among others) that a decision was in breach of human rights (s 65), or that removal would be contrary to the Refugee Convention (s 69). On appeals on those grounds, the adjudicator and the IAT could take account of any evidence relevant to the appeal, including evidence about matters after the date of the decision appealed against (s 77(3)). This reflects the approach established as correct by this court in Ravichandran v Home Secretary [1996] Imm AR 97, 112-3 per Simon Brown LJ. Paragraph 22 of Schedule 4 provided for appeals to the IAT from the Adjudicator, which is not confined to issues of law; the IAT could “affirm the determination or make any other determination which the Adjudicator could have made”.

Paragraph 23 provides for appeal from the IAT to the Court of Appeal, with leave of either the IAT or the Court of Appeal. The right of appeal is limited to “a question of law material to (the Tribunal’s) determination.” It is common ground that the Court of Appeal is confined to considering the circumstances as at the date of the IAT’s determination. (The difference is as to the extent to which new evidence may be adduced to establish the true position at that date.)

The 2003 Rules were applied to appeals to the IAT pending on 1^st April 2003. Their “overriding objective” is:

“to secure the just, timely and effective disposal of appeals and applications in the interests of the parties to the proceedings and in the wider public interest.” (rule 4)

Part 4 governs the procedure for applications for permission to appeal from the IAT. Rule 26, headed “Scope of this Part”, provides:

“This Part applies to applications to the Tribunal for permission to appeal on a point of law to the Court of Appeal …. from a determination of an appeal by the Tribunal.”

Rules 27 to 29 deal with the making of the application for permission. Rule 30 is headed “Determining the Application”. It provides that the application must be determined by a legally qualified member of the Tribunal without a hearing, and (by paragraph (2)) that the Tribunal may (a) grant permission to appeal; (b) refuse permission to appeal; or (c) subject to paragraph (3), “set aside the Tribunal’s determination and direct that the appeal to the Tribunal be re-heard.” Paragraph (3) provides that an order under (c) may only be made by the President or Deputy President of the Tribunal, and after giving every party an opportunity to make representations. There is an issue, to which we shall return, as to the limits if any on the scope of the power to direct a re-hearing.

Account must also be taken of the general rules governing appeals to the Court of Appeal. For the purposes of an appeal, the Court of Appeal generally has “all the authority and jurisdiction” of the tribunal appealed against (Supreme Court Act 1981, s 15(3)). Procedure in the Court of Appeal itself is subject to CPR Part 52. Rule 52.11(1) provides that the appeal will be limited to a “review” of the decision of the lower court, unless the court considers that “in the circumstances of an individual appeal, it would be just to order a re-hearing”. Rule 52(2) provides that, unless otherwise ordered, the court will not receive (a) oral evidence; or (b) evidence which was not before the lower Court.

Although that rule gives the Court a discretion to admit new evidence, it is not unlimited:

The discretion is subject to any statutory limitations in the scope of the appeal (see CPR 52.1(4)). Thus, where the appeal is limited to questions of law, the power to admit new evidence cannot be used to turn it into an appeal on issues of pure fact (cp Green v Minster of Housing [1967] 2 QB 606, 615, under the old rules).

ii)

New evidence will normally be admitted only in accordance with “Ladd v Marshall principles”(see Ladd v Marshall [1954] 1 WLR 1489), applied with some additional flexibility under the CPR (see Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, 2325; White Book para 52.11.2). The Ladd v Marshall principles are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible. As a general rule, the fact that the failure to adduce the evidence was that of the party’s legal advisers provides no excuse: see Al-Mehdawi v Home Secretary [1990] 1AC 876.

We will need to consider below to what extent those principles are further relaxed in asylum cases.

Mention should also be made of the position following the final dismissal of an asylum claim by the IAT or this court. If circumstances change, a fresh claim can be made in accordance with the principles explained in R v Home ex p Oniboyo [1996] QB 768. It was accepted in that case that a “fresh” claim implied a “significant change” from the claim as previously advanced, and that any new evidence had to satisfy “tests analogous to Ladd v Marshall ...of previous unavailability, significance and credibility” (p 783).

The current procedure is explained in paragraph 346 of the Statement of Changes in Immigration Rules (HC 395). This provides that, where an asylum applicant has been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. They will be treated as a fresh application if the claim advanced is -

“…sufficiently different from the earlier claim that there is a realistic prospect that the conditions (for grant of asylum) will be satisfied.”

In reaching that decision:

“the Secretary of State will disregard any material which “(i) is not significant; or (ii) is not credible; or (iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined.”

(To make sense, the reference in that passage to “any appeal” must, we think, be to an appeal in which the new material would have been admissible.)

Although the decision on a new application is potentially subject to the ordinary appeal machinery, that right is excluded if the Secretary of State certifies that the ground of appeal was or would have been available in relation to a previous decision: 2002 Act s 96(2).

Issues

The appellants’ cases rest on the contention that the new evidence was available before the date of the promulgation of the Tribunal’s decisions, and would have had a material effect on the determinations. The questions which accordingly arise are:

Can the Tribunal take account of material which becomes available between the date of the hearing and the date of the promulgation of its decision (“the decision date”)?

ii)

Where such material was in existence before the decision date but is first drawn to the attention of the Tribunal on the making of an application for permission to appeal, does the Tribunal have power to re-open its decision in order to take it into account?

iii)

What is the relevance of such evidence to an appeal limited to questions of law?

iv)

If it is relevant, what principles should the Court of Appeal apply in exercising its discretion to admit it?

The first question is strictly academic, because the new evidence was not made available to the IAT before the decision date. We have noted that in refusing leave in R’s case, the IAT recorded that its determination had been “signed” at the end of the hearing, although it was not “promulgated” until some months later. The IAT’s decision in fact bears the Vice-President’s signature dated 23^rd April 2003, but there is no indication that it was communicated to the parties at the time; the “date determination notified” is given as 19^th August 2003. The precise status of the appeal in the intervening period was not the subject of detailed argument before us (see Macdonald Immigration Law and Practice 5^th Ed. para 18.167, for discussion of the possible consequences of delay in promulgation.) As we understand it, the argument on both sides has proceeded on the basis that, up until the date of promulgation, the IAT would have been at liberty to admit further evidence (whether or not it was under any duty to do so). That seems correct. In accordance with ordinary principles, the IAT remained seized of the matter until the decision was formally communicated to the parties.

Tribunal’s power to direct a re-hearing

We turn therefore to issue (ii): that is, the power of the IAT itself, on receipt of new material as part of the application for permission to appeal, to direct a re-hearing. We have already set out the terms of rule 30 (2)(c) of the 2003 Rules.

Paragraph29.

The general purpose of the power to direct a re-hearing is not in doubt. Where the IAT sees force in the proposed grounds of appeal, it can obviously be sensible for it to short-circuit the process of appeal. However, there is an issue as to the limits, if any, on the scope of this power. Mr Kovats says that Part 4 of the 2003 Rules (in which this rule appears) is concerned solely with “applications to appeal… on a point of law…” (rule 26). The essential starting-point, therefore, is a finding by the Tribunal of an arguable error of law in their original decision.

Paragraph30.

On the other side, the appellants draw attention to the general and unqualified nature of the power to direct a re-hearing under paragraph (c), as compared to its predecessor. Asylum Appeals Procedure Rules 2000 rule 27(5) provided that “where the Tribunal intends to grant leave to appeal”, it could instead (after giving all parties an opportunity to make representations) set aside the determination and direct a re-hearing of the appeal. The limitation to cases where the Tribunal “intends to grant leave to appeal” is omitted in the 2003 Rules.

Paragraph31.

The new wording, it is said, is consistent with the “one-stop” approach, and reflects the unqualified terms of the enabling provision. Rule 30 of the 2003 rules is made under section 106 of the 2002 Act, which empowered the Lord Chancellor to make rules prescribing the procedure to be followed in connection with various forms of proceedings, including appeals from the Tribunal on a point of law. Section 106(2)(l) provides (simply and without qualification) that the rules “may enable the Tribunal to set aside a decision of the Tribunal”.

Paragraph32.

The appellants draw support from a concession made on behalf of the Secretary of State, and accepted by the Court, in Polat, relating to the predecessor rule 27(5) of the 2000 Rules. The applicant in that case was a Turkish citizen of Kurdish origin. The Tribunal rejected his appeal on the grounds that he would not be regarded as sufficiently closely involved with separatist organisations, to be at risk of persecution. His application for permission to appeal against the Tribunal’s decision was supported among other things by evidence from an acknowledged expert on Kurdish affairs (Mr MacDowall), which challenged the Tribunal’s assumption about the level of involvement likely to give rise to risk. By the time the matter reached this Court, subsequent decisions of the IAT had resulted in modified guidelines for dealing with such cases. On behalf of the Secretary of State, it was submitted that the Court’s jurisdiction was limited to the material before the Tribunal, and that the new evidence should be left for consideration by the Secretary of State in support of any fresh claim for asylum. May LJ observed that this submission was difficult to reconcile with the more flexible approach taken in other recent cases (para 28). However, in the event the appeal was allowed, by concession, on a narrower ground, which May LJ explained as follows:

“Mr McDowall’s report was submitted to the Tribunal in the present case at the time when it was considering the application for permission to appeal to this court. The decision refusing leave to appeal did not allude to the report. Rule 27(5) of the (2000 Rules), in operation at the material time, gave the Tribunal power, instead of granting leave to appeal, to set aside the determination appealed against and direct that the appeal to the Tribunal be re-heard. Mr Saini accepts that, in the exceptional circumstances of this case, it was an error of law not to take account of Mr McDowall’s report with a view to directing a re-hearing. Upon this concession, I conclude that the court has jurisdiction to take the obviously sensible course.” (para 29)

Paragraph33.

In this Court, Mr Kovats does not accept the correctness of the concession made on behalf of the Secretary of State in that case. With respect to Mr Saini, and his understandable desire to achieve a sensible result in that case, we see the force of Mr Kovats’ objection, in the context of rule 27(5) of the 2000 Rules. The concession seems to overlook the initial requirement, under that rule, that the Tribunal should “intend” to give leave to appeal. This seems to imply a need for it to have found at least an arguable error of law in their original decision, not merely some new evidence meriting reconsideration.

Paragraph34.

However, the same objection is more difficult to make in the context of the 2003 Rules, where the power to direct a re-hearing is not so qualified. Certainly, the facts of Polat show the desirability of such a power in suitable cases, for example where (as in that case) there is evidence calling for reconsideration of the Tribunal’s general practice in relation to appeals from a particular category of claimants. It is in the interest of all parties that decisions should be made on the best available information. As Sedley LJ said in Batayav (where the matter was remitted to the IAT, on the basis of new evidence submitted by the Secretary of State about conditions in Russian prisons):

“It is to nobody’s advantage to find an ostensibly comprehensive background appraisal on which decision-makers then rely in judging individual claims has been arrived at in ignorance of material information and has to be undone.” ([2003] EWCA Civ 1489 para 40)

Paragraph35.

We see nothing in rule 30 (2)(c), in its present form, which should prevent the IAT from directing a re-hearing in such cases, whether or not it accepts that there was an arguable error of law in its original decision. The starting-point, no doubt, must be an application to appeal from the IAT on a point of law (see rule 26). But such an application having come before the IAT, there is nothing in the wording of the rule (or the enabling statute) to restrict its discretion to direct a rehearing, as one of the three possible ways of dealing with the application. On the other hand, it is clear that the IAT is under no duty to direct a re-hearing in any particular circumstances. Regard must be had to the context, which is providing for limited review of an otherwise final decision. The principle of finality is therefore an important consideration. To justify reopening the case, in the absence of an apparent error of law, the IAT would need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked. Furthermore, where it is asked to consider new evidence, we see no reason why it should not apply the same principles as a court of appeal to the admission of new evidence in a similar context. We discuss below the application of those principles in the context of asylum cases.

Error of fact in administrative law.

Paragraph36.

So far as concerns the powers of this Court, we have identified two issues: (iii) (relevance) and (iv) (admissibility). In some of the cases they seem to have been conflated. However, it is important in our view to maintain the distinction. The first, and most difficult, question is as to the relevance of new evidence of fact on an appeal confined to issues of law. Even if that question is answered in the appellants’ favour, there is a separate question whether the evidence should be admitted, as an exception to the ordinary rule that the court proceeds on the basis of the material before the Tribunal; or whether consideration of any new evidence should be a matter for the Secretary of State on a fresh claim.

Paragraph37.

We will consider first the question of error of fact as a ground for review in administrative law. The appellants’ case is that the new evidence shows that the basis of the IAT’s decision in each case was mistaken, and that such a mistake can provide grounds for an appeal even where it is limited to questions of law.

Paragraph38.

It is convenient to start from a summary in a recent case in this Court of the principles applicable to an appeal on a point of law from a specialist tribunal, in that case the Lands Tribunal (Railtrack plc v Guinness Ltd [2003] RVR 280, [2003] EWCA Civ 188). Having referred to another Lands Tribunal case, in which an appeal had been allowed because the Tribunal had failed to take account of the “whole of the evidence” on a particular point (Aslam v South Bedfordshire DC [2001] RVR 65, [2001] EWCA Civ 514), Carnwath LJ (with whom the other members of the Court agreed) said (para 51):

“This case is no more than an illustration of the point that issues of ‘law’ in this context are not narrowly understood. The Court can correct ‘all kinds of error of law, including errors which might otherwise be the subject of judicial review proceedings’ (R v IRC ex p Preston [1985] 1 AC 835, 862 per Lord Templeman; see also De Smith, Woolf and Jowell, Judicial Review 5^th Ed para 15-076). Thus, for example, a material breach of the rules of natural justice will be treated as an error of law. Furthermore, judicial review (and therefore an appeal on law) may in appropriate cases be available where the decision is reached ‘upon an incorrect basis of fact’, due to misunderstanding or ignorance (see R (Alconbury Ltd) v Secretary of State [2001] 2 WLR 1389, 2001 UKHL 23, para 53, per Lord Slynn). A failure of reasoning may not in itself establish an error of law, but it may ‘indicate that the tribunal had never properly considered the matter…and that the proper thought processes have not been gone through’ (Crake v Supplementary Benefits Commission [1982] 1 All ER 498. 508).”

In the Guinness case the issue was whether the Tribunal had misunderstood some of the complicated expert evidence in front of it, resulting in a “double counting” in the valuation. The Court accepted that that was a proper ground of challenge on an appeal limited to questions of law, but held that it was not made out on the facts.

Paragraph39.

Two aspects of that summary require elaboration in the context of the present case: first, the relationship of this form of appeal with judicial review; and secondly the availability of appeal “upon an incorrect basis of fact”.

Appeal on law, and judicial review

Paragraph40.

There was some discussion in the present case as to whether the grounds upon which the Court may question a decision of the IAT differ materially, depending on whether the case comes before the Court as an application for judicial review, or as an appeal on a point of law. It would certainly be surprising if the grounds for judicial review were more generous than those for an appeal. In practice, such cases only come by way of judicial review because the IAT has refused leave to appeal, and its refusal can only be challenged in that way. There is certainly no logical reason why the grounds of challenge should be wider in such cases.

Paragraph41.

More generally, the history of remedies in administrative law has seen the gradual assimilation of the various forms of review, common law and statutory. The history was discussed by the Law Commission in its Consultation Paper Administrative Law: Judicial Review and Statutory Appeals CP 126, Parts 17 to 18. The appeal “on a point of law” became a standard model (supplanting in many contexts the appeal by “case stated”) following the Franks Committee report on Administrative Tribunals and Inquiries (1957 Cmnd 218), which was given effect in the Tribunals and Inquiries Act 1958 (now Tribunals and Inquiries Act 1992 s11). In other statutory contexts (notably, planning, housing and the like), a typical model was the statutory application to quash on the grounds that the decision was “not within the powers of the Act” (see e.g. Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320). Meanwhile the prerogative writ procedures were remodelled into the modern judicial review procedure. In R v Hull University Visitor ex p Page [1993] AC 682, the House of Lords acknowledged the evolution of a common set of principles “to ensure that the powers of public decision-making bodies are exercised lawfully” (p 701, per Lord Browne-Wilkinson).

Paragraph42.

Thus, in spite of the differences in history and wording, the various procedures have evolved to the point where it has become a generally safe working rule that the substantive grounds for intervention are identical. (The conceptual justifications are another matter; see, for example, the illuminating discussion in Craig Administrative Law 5^th Ed pp 476ff). The main practical dividing line is between appeals (or review procedures) on both fact and law, and those confined to law. The latter are treated as encompassing the traditional judicial review grounds of excess of power, irrationality, and procedural irregularity. This position was confirmed in R v IRC ex p Preston [1985] AC 835, 862E-F (a tax case), where Lord Templeman said:

“Appeals from the General Commissioners or the Special Commissioners lie, but only on questions of law, to the High Court by means of a case stated and the High Court can then correct all kinds of errors of law including error which might otherwise be the subject of judicial review proceedings…”

Paragraph43.

Of course the application of these principles will vary according to the power or duty under review; and, in particular, according to whether it is a duty to decide a finite dispute (such as that of a tribunal), or a continuing responsibility (such as that of a minister or local authority). As will be seen, this distinction is important in analysing some of the cases cited in this appeal. Furthermore, some decisions reflect the relative procedural flexibility of judicial review. While a statutory appeal is normally confined by the terms of the statute to consideration of the decision appealed against, judicial review is not so confined. An application for a judicial review of a particular decision may, subject to the Court’s discretion, be expanded by amendment to include review of subsequent decisions of the same agency (see e.g. Turgut below), or even related decisions of other agencies.

Incorrect basis of fact

Paragraph44.

Can a decision reached on an incorrect basis of fact be challenged on an appeal limited to points of law? This apparently paradoxical question has a long history in academic discussion, but has never received a decisive answer from the courts. The answer is not made easier by the notorious difficulty of drawing a clear distinction between issues of law and fact (see, Craig op cit p488; Moyna v Secretary of State for Work and Pensions [2003] UKHL 44 para 22 ff, per Lord Hoffmann).

Paragraph45.

The debate received new life following the affirmative answer given by Lord Slynn in R v Criminal Injuries Compensation Board ex parte A [1999] 2AC 330. In that case the claimant had claimed compensation on the basis that in the course of a burglary she had been the victim of rape and buggery. She was examined five days after the burglary by a police doctor who reported that her findings were consistent with the allegation of buggery. However, at the hearing of her claim that report was not included in the evidence, and the Board was given the impression by the police witnesses that there was nothing in the medical evidence to support her case. The claimant did not ask for the report, but, in Lord Slynn’s words:

“…having been told that she should not ask for police statements as they would be produced by the police, it would not be surprising that she assumed that if there was a report from the police doctor, it would be made available with the police report” (p 343F).

Paragraph46.

One of the issues discussed in detail in argument was whether the decision could be quashed on the basis of a mistake, in relation to material which was or ought to have been within the knowledge of the decision maker (see p 333-336). Lord Slynn thought it could. He said:

“Your Lordships have been asked to say that there is jurisdiction to quash the Board's decision because that decision was reached on a material error of fact. Reference has been made to "Administrative Law" (Wade and Forsyth (7th edition)) in which it is said at pp. 316-318 that:

‘Mere factual mistake has become a ground of judicial review, described as 'misunderstanding or ignorance of an established and relevant fact,' [Secretary of State for Education v Tameside MBC [1977] AC 1014, 1030] or acting 'upon an incorrect basis of fact.'. . . This ground of review has long been familiar in French law and it has been adopted by statute in Australia. It is no less needed in this country, since decisions based upon wrong fact are a cause of injustice which the courts should be able to remedy. If a 'wrong factual basis' doctrine should become established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a misapprehension of law.’

De Smith, Woolf and Jowell “Judicial Review of Administrative Action” 5th ed., at p. 288

‘The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention.’

For my part, I would accept that there is jurisdiction to quash on that ground in this case…” (p 344G-345E).

Paragraph47.

However, Lord Slynn “preferred” to decide the instant case on the alternative basis that there had been a breach of the rules of natural justice amounting to “unfairness.” As to that he said:

“It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness. Thus I would accept that it is in the ordinary way for the applicant to produce the necessary evidence. There is no onus on the Board to go out to look for evidence, nor does the Board have a duty to adjourn the case for further enquiries if the applicant does not ask for one…. Nor is it necessarily the duty of the police to go out to look for evidence on a particular matter.”

Nonetheless, he considered that the police “do have a special position in these cases”, and he noted the evidence that the Board is “very dependent on the assistance of and the co-operation of the police who have investigated these alleged crimes of violence”. He said:

“In the present case, the police and the Board knew that A had been taken by the police to see a Police Doctor. It was not sufficient for the police officer simply to give her oral statement without further inquiry when it was obvious that the doctor was likely to have made notes and probably a written report.” (p 345F- 346B).

He concluded:

“I consider therefore, on the special facts of this case and in the light of the importance of the role of the police in co-operating with the Board in the obtaining of the evidence, that there was unfairness in the failure to put the doctor’s evidence before the board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done.” (p347B).

Paragraph48.

The other members of the House agreed with Lord Slynn’s reasoning, thereby (as I read the speeches) endorsing his “preferred” basis of unfairness. Only Lord Hobhouse made any direct reference to the question of review for “error of fact”, specifically reserving that issue for consideration in the future (p348E).

Paragraph49.

The same statement on that question was repeated by Lord Slynn, in another context, in R v Secretary of State for the Environment ex p Alconbury [2003] 2AC 295, [2001] UKHL 23 para 53. He referred to the jurisdiction to quash for “misunderstanding or ignorance of an established and relevant fact”, as part of his reasons for holding that the court’s powers of review (under a statutory procedure to quash for excess of power) met the requirements of the European Convention on Human Rights. This part of his reasoning was not in terms adopted by the other members of the House of Lords. The point was mentioned by Lord Nolan and Lord Clyde. Lord Nolan put it in somewhat narrower terms; he said:

“But a review of the merits of the decision-making process is fundamental to the Court’s jurisdiction. The power of review may even extend to a decision on a question of fact. As long ago as 1955 your Lordships’ House, in Edwards v Bairstow [1956] AC 14, a case in which an appeal (from General Commissioners of Income Tax) could only be brought on a question of law, upheld the right and duty of the appellate court to reverse a finding of fact which had no justifiable basis”. (para 61).

He saw Edwards v Bairstow as an illustration of “the generosity” with which the Courts have interpreted the power to review questions of law, corresponding to “a similarly broad and generous approach” in the development of judicial review (para 62). Lord Clyde referred to Lord Slynn’s statement on this issue in CICB, commenting that it was:

“… sufficient to note… the extent to which the factual areas of a decision may be penetrated by a review of the account taken by a decision-maker of facts which are irrelevant or even mistaken.” (para 169)

Paragraph50.

In the present case the appellants rely on Lord Slynn’s statement as representing the law. Mr Kovats, for the Secretary of State, contents himself with the observation that the CICB case is “not in point” because it was a judicial review case, and Lord Slynn’s statement was obiter. For the reasons already given, we do not think the fact that CICB was a judicial review case is an adequate ground of distinction. Indeed, Lord Slynn himself (and Lord Clyde) treated it as no less relevant to a statutory review procedure in Alconbury. The fact that the statement was obiter means of course that it is not binding on us, but does not detract from its persuasive force, bearing in mind also the authority of the textbooks cited by him.

Paragraph51.

Although none of the parties found it necessary to examine in any detail the authorities referred to in argument in the CICB case or in the textbooks, it seems to us difficult to avoid such examination, if we are to address properly the issue in these appeals. Fortunately the ground is very well-covered, not only in the textbooks, but also in two excellent articles: by Timothy Jones, “Mistake of fact in Administrative Law” [1990] PL 507; and by Michael Kent QC (no doubt stimulated by his unsuccessful advocacy in CICB itself) “Widening the scope of review for error of fact” [1999] JR 239. The authorities are helpfully summarised in Michael Fordham’s invaluable Judicial ReviewHandbook 3^rd Ed pp 730-2 (see also Demetriou and Houseman Review for Error of fact – a brief guide [1997] JR 27). Michael Kent includes a useful comparison with the concept of “manifest error” as applied by the European Court of Justice. He concludes:

“A cautious extension of the power of the court on judicial review to reopen the facts might now be appropriate. This would need to be limited to cases where the error is manifest (not requiring a prolonged or heavily contested inquiry), is decisive (on which the decision turned) and not susceptible of correction by alternative means…” (op cit p 243).

Paragraph52.

That is not dissimilar to the formulation approved by Lord Slynn, although he required that the error should be “material”, rather than “decisive”. Before reaching a conclusion that mistake of fact is now a ground for judicial review in its own right, it is necessary to review briefly the authorities mentioned in those articles. Two main points emerge: first, that widely differing views have been expressed as to the existence or scope of this ground of review; but, secondly, that, in practice, this uncertainty has not deterred administrative court judges from setting aside decisions on the grounds of mistake of fact, when justice required it.

Differing views

Paragraph53.

First, there have been several judicial statements by eminent judges on both sides of the debate. The narrower view is exemplified by a recent statement of Buxton LJ, under the heading “Error of fact as a ground for judicial review?” (Wandsworth LBC v A [2000] 1 WLR 1246):

“The heading of this section of this judgment is, deliberately, the same as that of an important section, paragraphs 5-091 and following, in the 5th edition of De Smith, Woolf and Jowell, Judicial Review of Administrative Action. That section shows the difficult and elusive nature of this question, viewed as a general issue. However, if our present case is properly analysed the dilemma does not arise. While there may, possibly, be special considerations that apply in the more formalised area of planning enquiries, as suggested by De Smith, paragraph 5-092 at fn75; and while the duty of "anxious scrutiny" imposed in asylum cases by R v SSHD ex p Bugdaycay [1987] AC 514 renders those cases an uncertain guide for other areas of public law; nonetheless De Smith's analysis shows that there is still no general right to challenge the decision of a public body on an issue of fact alone. The law in this connexion continues, in our respectful view, to be as stated for a unanimous House of Lords by Lord Brightman in Pulhofer v Hillingdon LBC [1986] AC 484 at p518E:

59.

It is the duty of the court to leave the decision [as to the existence of a fact] to the public body to whom Parliament has entrusted the decision-making power, save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

He adopted the observations of Watkins LJ (sitting with Mann LJ) in R v London Residuary Body (24 July 1987, unreported, but quoted in the Judicial Review Handbook p 730):

“Of course, a mistake of fact can vitiate a decision as where the fact is a condition precedent to an exercise of jurisdiction, or where the fact is the only evidential basis for a decision or where the fact was as to a matter which expressly or impliedly had to be taken into account. Outside those categories we do not accept that a decision can be flawed in this court, which is not an appellate tribunal, upon the ground of a mistake of fact.”

Paragraph54.

The clearest articulation of the alternative view (before CICB) was that of Scarman LJ in the Court of Appeal, in Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014, 1030. (This can be taken as having been implicitly endorsed by Lord Slynn, since it was cited by Wade and Forsyth in the extract quoted by him: see above.) The question in Tameside was whether the Secretary of State was entitled to hold that the Council reacted “unreasonably” in reversing plans of the previous administration to make all the schools in their area “comprehensive”. One issue was the practicability of carrying out the necessary selection process within the available time. On the material available to the Court of Appeal, it appeared that the Secretary of State had “either misunderstood or was not informed” as to the professional advice available to the authority on this issue; and that he had wrongly “jumped to the conclusion” that the proposals were unworkable (see p 1031C, 1032H). Scarman LJ did not accept that the scope of judicial review was as limited as suggested by counsel for the Secretary of State:

“…I would add a further situation to those specified by him: misunderstanding or ignorance of an established and relevant fact. Let me give two examples. The fact may be either physical, something which existed or occurred or did not, or it may be mental, an opinion. Suppose that, contrary to the minister's belief, it was the fact that there was in the area of the local education authority adequate school accommodation for the pupils to be educated, and the minister acted under the section believing that there was not. If it were plainly established that the minister was mistaken, I do not think that he could substantiate the lawfulness of his direction under this section. Now, more closely to the facts of this case, take a matter of expert professional opinion. Suppose that, contrary to the understanding of the minister, there does in fact exist a respectable body of professional or expert opinion to the effect that the selection procedures for school entry proposed are adequate and acceptable. If that body of opinion be proved to exist, and if that body of opinion proves to be available both to the local education authority and to the minister, then again I would have thought it quite impossible for the minister to invoke his powers under section 68.” (p 1030E-G)

Paragraph55.

In the House of Lords, Lord Wilberforce referred to the need for “proper self direction” as to the facts ([1977] AC at p 1047D- E). But he made no direct reference to the observations of Scarman LJ, and it may be (as was the view of Buxton LJ: see the Wandsworth case at [2000] 1 WLR at 1256D) that he was thinking only of the limited forms of factual review later summarised by Watkins LJ in the ILEA case. The House of Lords held that the Secretary of State had acted unlawfully, principally on the ground that the Secretary of State had set the criterion of unreasonableness too low.

Paragraph56.

More recently, in R v ITC ex p Virgin Television Ltd (25.1.96 unreported, cited in Demetriou and Houseman, op cit para 28), Henry LJ distinguished between mistakes of fact “not grave enough to undermine the basis of a multi-faceted decision”, and “misapprehension of the facts which form the foundation of the Commissioner’s decision”; only the latter would justify intervention by the court on judicial review.

Paragraph57.

Timothy Jones notes that another leading proponent of the wider approach, Sir Robin Cooke, in the New Zealand Court of Appeal, adopted Scarman LJ’s formulation, saying:

“To jeopardise validity on the ground of mistake of fact the fact must be an established one or an established and recognised opinion; and… it cannot be said to be a mistake to adopt one of two differing points of view of the facts, each of which may be reasonably held.” (New Zealand Fishing Industry Association Inc v Minister of Agriculture [1988] 1NZLR 544, 552)

There was however no majority on this issue in the New Zealand Court of Appeal (see Jones op cit p 514-5.)

Mistake of law in practice

Paragraph58.

Timothy Jones cites a number of cases, particularly in the context of town and country planning, where decisions have been set aside because of errors of fact (albeit without detailed discussion of the principle). Examples are:

An inspector’s mistaken understanding that land had never been part of the Green Belt: Hollis v Secretary of State (1984) 47 P&CR 351 (Glidewell J).

ii)

An inspector’s mistaken view that a building extension would not obstruct a particular aspect: Jagendorf v Secretary of State [1985] JPL 771 (David Widdicombe QC).

iii)

The minister’s misinterpretation of the inspector’s conclusions on evidence relating to viability of restoration of a building: Barnet Meeting Room Trust v Secretary of State 13.12.89 unreported (Sir Graham Eyre QC).

Paragraph59.

More significant, because it was a fully reasoned decision of the Court of Appeal, was another planning case, Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306. The Secretary of State in rejecting the planning appeal had mistakenly thought that the council had carried out a study relevant to the inclusion of the site in the Green Belt, whereas the study related only to what uses should be made within the Green Belt designation. The decision was challenged on the basis that “as a result of the error of fact” the Minister had “taken into account matters which he was not entitled to consider” (p 322). The Court of Appeal accepted that formulation, holding that the error was “undeniably significant in the decision-making process” (p 327, per Purchas LJ), or was one which “was or may have been material” (p 329, per Staughton LJ). The decision was therefore quashed.

Paragraph60.

As will be seen, the cases of Haile (mistake as to the name of a political party) and Khan (ignorance of a conviction in Bangladesh) are best explained as further examples in this Court of the same approach to plain errors of fact, as applied in the field of asylum law.

Underlying principle

Paragraph61.

As the passage cited by Lord Slynn shows, the editors of the current edition of De Smith (unlike Wade and Forsyth) are somewhat tentative as to whether this is a separate ground of review:

“The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration or the failure to provide reasons that are adequate or intelligible or the failure to base the decision upon any evidence.” (para 5/-094).

Paragraph62.

We are doubtful, however, whether those traditional grounds provide an adequate explanation of the cases. We take them in turn:

Failure to take account of a material consideration is only a ground for setting aside a decision, if the statute expressly or impliedly requires it to be taken into account (Re Findlay [1985] AC 318, 333-4, per Lord Scarman). That may be an accurate way of characterising some mistakes; for example, a mistake about the development plan allocation, where there is a specific statutory requirement to take the development plan into account (as in Hollis). But it is difficult to give such status to other mistakes which cause unfairness; for example whether a building can be seen (Jagendorff), or whether the authority has carried out a particular form of study (Simplex).

ii)

Reasons are no less “adequate and intelligible”, because they reveal that the decision-maker fell into error; indeed that is one of the purposes of requiring reasons.

iii)

Finally, it may impossible, or at least artificial, to say that there was a failure to base the decision on “any evidence”, or even that it had “no justifiable basis” (in the words of Lord Nolan:see above). In most of these cases there is some evidential basis for the decision, even if part of the reasoning is flawed by mistake or misunderstanding.

Paragraph63.

In our view, the CICB case points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between “ignorance of fact” and “unfairness” as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that “objectively” there was unfairness. On analysis, the “unfairness” arose from the combination of five factors:

An erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case);

ii)

The fact was “established”, in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence;

iii)

The claimant could not fairly be held responsible for the error;

iv)

Although there was no duty on the Board itself, or the police, to do the claimant’s work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result;

The mistaken impression played a material part in the reasoning.

Paragraph64.

If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of fact. Although planning inquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis. Similarly, in Tameside, the Council and the Secretary of State, notwithstanding their policy differences, had a shared interest in decisions being made on correct information as to practicalities. The same thinking can be applied to asylum cases. Although the Secretary of State has no general duty to assist the appellant by providing information about conditions in other countries (see Abdi and Gawe v Secretary of State [1996] 1 WLR 298, he has a shared interest with the appellant and the Tribunal in ensuring that decisions are reached on the best information. It is in the interest of all parties that decisions should be made on the best available information (see the comments of Sedley LJ in Batayav, quoted above).

(We have also taken account of the judgment of Maurice Kay J in R (Cindo) v Secretary of State [2002] EWHC 246 para 8-11, drawn to our attention since the hearing by Mr Gill, in which some of these issues were discussed.)

Paragraph65.

The apparent unfairness in CICB was accentuated because the police had in their possession the relevant information and failed to produce it. But, as we read the speeches, “fault” on their part was not essential to the reasoning of the House. What mattered was that, because of their failure, and through no fault of her own, the claimant had not had “a fair crack of the whip”. (See Fairmount Investments v Secretary of State [1976] 1 WLR 1255, 1266A, per Lord Russell.) If it is said that this is taking “fairness” beyond its traditional role as an aspect of procedural irregularity, it is no further than its use in cases such as HTV Ltd v Price Commission [1976] ICR 170, approved by the House of Lords in R v IRC ex p Preston [1985] AC 835, 865-6.)

Paragraph66.

In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning.

Paragraph67.

Accordingly, we would accept the submissions of each of the present appellants, that, if the new evidence is admitted, the Court will be entitled to consider whether it gives rise to an error of law in the sense outlined above. As we have said, however, whether the evidence should be admitted raises a separate question to which we now turn.

New Evidence

Paragraph68.

Assuming the relevance of showing a mistake of fact in the Tribunal’s decision, there may need to be evidence to prove it. As has been seen, the Court has a discretion to admit new evidence (CPR 52.11(2)), but it is normally exercised subject to Ladd v Marshall principles, raising in particular the issue whether the material could and should have been made available before the decision.

Paragraph69.

Whether this is a material issue, of course, depends on the nature of the mistake. It may not be relevant if the mistake arises purely from the Tribunal’s consideration of the evidence (for example, the misinterpretation of the planning study in Simplex). However, it may be material, where (as in the present cases) the complaint is of ignorance of evidence which was available before the decision was made. In such cases, it inevitably overlaps with the question of “unfairness”. A claimant who had the opportunity to produce evidence and failed to take it may not be able to say that he has not had “a fair crack of the whip”.

Paragraph70.

Kibiti v Home Secretary [2000] Imm AR 594 shows the strict application of these principles even in an asylum case. The appellant was a citizen of the Congo who had been refused asylum and failed in his appeal to the Tribunal. The Tribunal had concluded that there was a state of civil war in the Congo, a view which was challenged by the appellant by reference to a report written after the Tribunal hearing. The leading judgment (with which the other members of the Court agreed) was given by Buxton LJ. He rejected the appeal after a detailed review of the Tribunal’s conclusions on the material available to it. Peter Gibson LJ added certain comments on the question of new evidence. He said that the appellant had sought to rely on a report by a Dr Manley, which had not been before the Tribunal at the time of its hearing but was provided to it when permission was asked to appeal to the Court of Appeal. Counsel for the Secretary of State objected to the material being received by the Court, on the grounds that the Court could only consider “any question of law material to the determination”:

“This Court… is confined to looking to see whether the Tribunal erred in some manner in relation to the facts and material which were before the Tribunal. It is obvious that material not put to the Tribunal could not be used to identify an error of law on the part of the Tribunal.”

Peter Gibson LJ agreed with that approach:

“In my judgment (Counsel’s) objection was entirely right. It is inappropriate for new material to be presented to this Court which could not in any way have affected the decision of the Tribunal below. It is of course open to an applicant to present such new material to the Secretary of State once the appellate process relating to the earlier decision has been exhausted; and I do not doubt that the Secretary of State would take into account material such as that from Dr Manley, as an expert in the relevant field.” (para 43- 44).

Although the other members of the Court did not in terms adopt this reasoning, we think they must be taken as having done so, since the leading judgment of Buxton LJ was based entirely on material available to the IAT, and Dr Manley’s report played no part in it. (As we have said, the same approach was very recently taken by this Court, albeit without discussion of the authorities, in AE and FE v Secretary of State [2003] EWCA Civ 1032 para 9.)

Paragraph71.

Mr Kovats, for the Secretary of State, accepted that there are established exceptions to this principle. He adopted the summary in R v Secretary of State for the Environment ex p Powis [1981] 1 WLR 584, which, although given in a judicial review case, he accepts as equally applicable to an appeal on law. Dunn LJ referred to three permissible categories of new evidence: (1) evidence to show what material was before the tribunal; (2) where the jurisdiction of the tribunal depended “on a question of fact or whether essential procedural requirements were observed”, evidence to establish the “jurisdictional fact or procedural error”; (3) evidence to show misconduct (such as bias or fraud) by the tribunal or parties before it. Mr Kovats submits that those categories are exclusive.

Paragraph72.

The appellants submit that this is too strict an approach in asylum cases, at least where the new evidence relates to facts which were “established” at the time of the IAT’s decision, and is in support of a “mistake of fact” ground of appeal. This submission was based principally on four decisions to which we have already referred: Turgut, Haile, A, and Khan. Also relied on were two decisions of the House of Lords in different areas of public law: R v Home Secretary ex p Launder [1997] 1 WLR 839, and R v Home Secretary, ex Simms [2000] 2 AC 115.

Paragraph73.

It is convenient to deal first with the two House of Lords cases. It is true that in both cases new evidence was admitted by the House. However, neither concerned the decision of a tribunal, such as the IAT. In Launder the issue was the legality of the Home Secretary’s decision to extradite the applicant to Hong Kong, notwithstanding alleged doubts over the likely fairness of any trial in Hong Kong following its transfer to China in July 1997. Although the judicial review proceedings were in terms directed at two particular decisions, in letters written in July and December 1995 (see p 842D), the Home Secretary was under a continuing duty to keep the matter under review (see p 852H). It was against that background, and in the unusual circumstances of the case, that the House considered it relevant to have regard to up-to-date information about the position in Hong Kong. Lord Hope said:

“The situation has changed since 1995 when the decisions were taken. So it is necessary first to mention the situation at that time and then to examine the situation at the present stage. Although we are concerned primarily with the reasonableness of the decisions at the time when they were taken we cannot ignore these developments. We are dealing in this case with concerns which have been expressed about human rights and the risks to the respondent's life and liberty. If the expectations which the Secretary of State had when he took his decisions have not been borne out by events or are at risk of not being satisfied by the date of the respondent's proposed return to Hong Kong, it would be your Lordships’ duty to set aside the decisions so that the matter may be reconsidered in the light of the changed circumstances.” (p 860-1)

Paragraph74.

As will be seen, that passage was relied on by Schiemann LJ in Turgut. However, the context was important. The decision to admit the evidence had nothing to do with the application of Ladd v Marshall principles, which were not referred to in argument or in the judgment. This no doubt was, not only because by definition the up-to-date information was not available when the Home Secretary made his decisions, but also because the case inevitably raised issues relevant to his continuing responsibility in the matter (as contrasted with a decision of a body with finite jurisdiction, such as a tribunal).

Paragraph75.

Simms also concerned the judicial review of a decision of the Home Secretary, this time in the context of exchanges between prisoners and journalists. New evidence was admitted in the House of Lords to show the contribution made by journalists in past cases identifying miscarriages of justice ([2000] 2 AC at p 127). There is no indication of any objection to the House receiving this evidence. Again, in view of the Home Secretary’s continuing responsibility in the matter, it was understandable that the House wished to reach its judgment on the fullest available information. The case throws no light on the present issue.

The asylum cases

Paragraph76.

In Turgut,the Launder approach was applied in the context of asylum. However, again the context is important. The proceedings were not directly related to a decision of the IAT. They were for judicial review of the Home Secretary’s decision, following the dismissal of the IAT appeal, not to grant the applicant exceptional leave to remain. The court was faced with “a stream of evidence and counter evidence” running to more than 1500 pages. It was in this context that Schiemann LJ gave guidance on the approach of the court (having had the assistance of Michael Fordham, as amicus). He said:

“The position is as follows. The guiding principle is that the Secretary of State has undertaken not to send someone from here to a country where there are substantial grounds for believing that he would be at real risk of facing treatment proscribed by Article 3. If an applicant for permission to move for judicial review claims that the Secretary of State's decision is vitiated by some form of illegality he will file evidence to that effect. The Court will not shut out evidence which is relevant to the issues. Indeed, it may order disclosure of evidence necessary for disposing fairly of the application. The evidence is not strictly limited to evidence which was or should have been before the Secretary of State at the time of the decision. This was the unanimous view of the House of Lords (in Launder). ([2001] 1 All ER at p 735f-h)

He noted that the Secretary of State might seek to adduce evidence to explain and justify his original decision, or to show that he had considered the evidence filed by the applicant and made a new, second, decision in the light of that evidence. If the second decision were then subject to challenge, it would generally be convenient for the applicant to amend his application to substitute the second decision as that subject to challenge. Schiemann LJ went on to consider how the court should deal with new evidence in such cases (p 735-6).

Paragraph77.

That guidance, with respect, was readily understandable in the context in which it was given. That was a case, in which the respondent to the appeal (as in Launder and Simms) was a minister with a continuing public responsibility in the matter. It is often sensible in such cases for the matter to be looked at in the light of the Secretary of State’s most recent consideration of the matter, and the judicial review procedure is flexible enough to allow that. Again, it throws no direct light on the present issue.

Paragraph78.

The next two cases, however, are more directly in point, since they involved challenges to decisions of the IAT itself. Haile was an appeal from the High Court on a challenge by judicial review to the IAT’s refusal of permission to appeal. A v Home Secretary was an appeal with leave from the IAT.

Paragraph79.

In Haile the adjudicator had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove the mistake was first produced in the Court of Appeal. The error could and should have been spotted by the claimant’s advisers before the IAT decision, or at least before the judicial review hearing. It was nonetheless admitted in the Court of Appeal. Simon Brown LJ accepted that under the Ladd v Marshall tests it would have fallen “at the first hurdle”; but he said:

“The fact is however that these principles never did apply strictly in public law and judicial review. As Sir John Donaldson MR said in R v Secretary of State for the Home Department ex parte Ali [1984] 1 WLR 663, 673:

‘... the decision in Ladd v Marshall [1954] 1 WLR 1489 has as such no place in that context,’

although he then added:

‘However, I think that the principles which underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable subject always to the discretion of the Court to depart from them if the wider interests of justice so require.’” ([2002] INLR 283, 289)

Paragraph80.

He did not think that this conclusion was precluded by the decision of the House of Lords in Al-Mehdawi v Home Secretary (see above), “not least given that this is an asylum case rather than a student leave case”. He thought that “aspects” of that decision might need to be reconsidered in the light of the speeches in CICB (para 26).

Paragraph81.

We take the emphasis, in the first sentence of the passage quoted above, as being on the word “strictly”. It would be wrong to say that the Ladd v Marshall principles have not been treated as applicable at all in judicial review (see e.g. R v West Sussex Quarter Sessions ex p Johnson Trust Ltd [1974] QB 24, cited with approval by the House of Lords in Al-Medhawi v Home Secretary [1999] 1 AC 876, 899). It is clear, however, that some flexibility has been allowed where the “interests of justice” so require. That as we understand it is the effect of Sir John Donaldson MR’s comment in Momin Ali. Although he said that Ladd v Marshall principles “as such” were not applicable, he gave no direct authority for that statement. His reasons for excluding the evidence in that case appear to be have been based in effect on Ladd v Marshall principles. He said:

“This fresh evidence was clearly available and should have been placed before Webster J. It is not the function of this court, as an appellate court, to retry an originating application on different and better evidence. We are concerned to decide whether the trial judge’s decision was right on the materials available to him, unless the new evidence could not have been made available to him by the exercise of reasonable diligence or there is some other exceptional circumstance which justifies is admission and consideration by the court.” (p 670E)

Fox LJ also accepted that there was a “wider discretion” to admit new evidence than in ordinary civil litigation, but agreed with the result (p 673G-H); Stephen Brown LJ said that Ladd v Marshall principles should apply (p 674A).

Paragraph82.

We would respectfully accept the statement of the Master of the Rolls quoted in the previous paragraph as accurately reflecting the law applicable in a case of this kind (whether it takes the form of a direct appeal from the IAT to the Court of Appeal, or comes by way of judicial review of the IAT’s refusal of leave to appeal). However, we would not regard it as showing that Ladd v Marshall principles have “no place” in public law. Rather it shows that they remain the starting point, but there is a discretion to depart from them in exceptional circumstances.

Paragraph83.

Haile was held to be such a case, on its particular and unusual facts. We would not treat it as establishing any general proposition as to how the discretion should be exercised. Nor, with respect, do we see it as supporting any general departure, even in asylum cases, from the effect of the decision in Al-Mehdawi, as regards failures of the parties’ advisers (although we have not heard detailed argument on this aspect). Once the evidence was admitted, then (assuming the correctness of the principles explained above) there was no difficulty in the result. It was a straightforward case of unfairness caused by a mistake of fact, on a point which was uncontroversial and material to the decision.

Paragraph84.

A v Home Secretary had a somewhat confused procedural background, but it was treated as an appeal with leave from the IAT (see judgment paras 4 – 7). The claim was based on asylum grounds and Articles 2 and 3 of the European Convention of Human Rights. Keene LJ gave the leading judgment, with which the other members of the court (including Peter Gibson LJ) agreed. The Court of Appeal admitted fresh evidence of the risks facing the appellant if returned to Jamaica, including an expert report from the executive director of Independent Jamaica Council of Human Rights, the reliability of which was accepted by counsel for the Home Secretary (para 17). It was argued for the Secretary of State that, in accordance with Ladd v Marshall principles, the new evidence should not be admitted. This argument was rejected. Keene LJ said:

“On this issue, I would emphasise that it has been held a number of times that the principles enunciated in Ladd v Marshall [1954] 1 WLR 1489, including that which requires the fresh evidence to be evidence which could not have been obtained with reasonable diligence for use at trial, do not apply with the same strictness in public law cases. In Turgut v Secretary of State for the Home Department [2000] Imm.AR 306, an Article 3 case, it was emphasised by Schiemann LJ that this court will not shut out relevant evidence in such cases. The matter was dealt with fully in the unanimous decision of this court in Haile v Immigration Appeal Tribunal [2002] Imm.AR 170, where it was held that the proper approach was to consider the wider interests of justice. That must be right both in asylum cases and in those where Articles 2 or 3 of the ECHR are invoked. After all, one has to consider the context in which these cases are brought. As Lord Bridge of Harwich said in the oft-cited case of Bugdaycay v Secretary of State for the Home Department [1987] 1 AC 514 at 531 E:

‘The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny.’

As a matter of principle it would be difficult to achieve such scrutiny whilst closing one’s eyes to relevant evidence.

21.

In the present case this further evidence is credible and it is potentially significant, going much further than the material which the IAT had. I for my part am quite satisfied that the wider interests of justice do require the fresh evidence to be considered by this court. I would admit it and I proceed on that basis.”

At the end of the judgment, he rejected the proposal for the Secretary of State that, if the Court found the new evidence persuasive, it should remit this case to the IAT as the body with the experience to assess it. He said:

“33…. I for my part would not do so. It seems to me that the evidence now before us admits of only one sensible interpretation and this court is fully able to arrive at a substantive conclusion on it.

34.

I am persuaded that the removal directions given by the Secretary of State would involve a breach of the appellant's human rights. For that reason and on that specific basis, I would allow this appeal.”

Paragraph85.

Although this case was in form an appeal against the IAT’s decision, the last paragraph suggests that Keene LJ treated it as in effect raising a distinct issue as to the legality of the Secretary of State’s own actions under the human rights legislation. On the extreme evidence available to the court, one can understand the practical attractions of taking that course. However, for the reasons we have given, we do not think with respect that either Turgut or Haile provided sufficient authority for discarding the ordinary principles applicable to an appeal on law. Furthermore, in our view, the “anxious scrutiny” principle, though very relevant to consideration of the facts of any case, cannot alter the statutory limits of the procedure. The Court of Appeal does not have an all-purpose role to prevent or correct any breaches of the refugee or human rights conventions. It is not the port of last resort. The fresh claim procedure provides further protection, subject to review by the Court. But that is subject to carefully defined limits, which would be undermined if the statutory appeal were arbitrarily extended beyond its proper limits.

Paragraph86.

We would therefore respectfully agree with Mr Kovats that A v Home Secretary cannot be taken as authority for discarding, in the context of asylum law, the established approach to new evidence on an appeal limited to questions of law.

Paragraph87.

The same view applies with even more force to the next case, Khan v Secretary of State [2003] EWCA Civ 530, to which one of the members of this Court was party. The applicant was a Bangladeshi national who had come to this country in 2001. His claim centred on events in August 2000 when he had been involved in a demonstration following which fighting had broken out, and there had been warrants of arrest for a number of people including himself. He claimed asylum on the basis that, if returned, he would face a risk of arrest and lengthy pre-trial detention in inhuman or degrading conditions. In a decision issued in August 2002, the IAT accepted that the conditions of the Bangladeshi prisons in which he would be held if arrested “may be degrading treatment”. However, it held that, following a change of political control in Bangladesh, there was no serious risk of his being arrested if he did return there. On the day of the hearing in the Court of Appeal, it emerged that credible evidence had very recently come to light that, far from being at no risk of prosecution, the claimant had in fact been tried and convicted in his absence in April 2002, and had been sentenced to ten years’ imprisonment. In those exceptional circumstances, it seemed obvious to the Court that the matter must be looked at again. May LJ giving the leading judgment said that it was “plainly just” that this information should be considered, and that he was “personally untroubled as to the precise jurisprudential basis upon which we should do so”. On the basis of the new evidence “the factual basis on which the Immigration Appeal Tribunal came to its conclusion is undermined.” Agreeing with that judgment Carnwath LJ said:

“Whatever the precise limits of this Court’s power to admit new evidence in such cases as this, I have no doubt that we should do so where there is material which appears to show that the factual basis on which the Tribunal proceeded was, through no fault of its own, simply wrong.”

Ward LJ agreed with both judgments.

Paragraph88.

One can perhaps draw three lessons from that decision:

Not all (or even most) Court of Appeal decisions in this area should be seen as laying down propositions of law; the decisions in this area are unusually fact-sensitive;

ii)

It provides another good example of the need for a residual ground of review for unfairness arising from a simple mistake of fact;

iii)

It illustrates the intrinsic difficulty in many asylum cases of obtaining reliable evidence of the facts giving rise to the fear of persecution, and the need for some flexibility in the application of Ladd v Marshall principles.

Paragraph89.

Finally we should mention briefly the case of Tataw, which was also relied on by the appellants, although in our view it is readily distinguishable. The appeal in that case turned on a procedural point. The IAT, on the material available to it, had reasonably concluded that the application for leave to appeal had been made outside the 10-day limit prescribed by the rules. This was on the basis that the Adjudicator’s decision had been sent to her on the date on which it was delivered. It subsequently transpired that it had not been sent to her until one month later, and that on that basis the application had been in time. Not surprisingly, the Court of Appeal allowed the appeal and remitted the matter to the Tribunal. In our view, the admission of evidence relating to a procedural issue of this kind (cf the second category in Powis) throws no light on the principles applicable to evidence relating to the substantive issues in the case.

Conclusion

Paragraph90.

Finally we shall draw together the threads of this discussion, and apply the resulting principles to the facts of these cases.

Paragraph91.

In summary, we have concluded in relation to the powers of this Court:

An appeal to this Court on a question of law is confined to reviewing a particular decision of the Tribunal, and does not encompass a wider power to review the subsequent conduct of the Secretary of State;

ii)

Such an appeal may be made on the basis of unfairness resulting from “misunderstanding or ignorance of an established and relevant fact” (as explained by Lord Slynn in CICB and Alconbury);

iii)

The admission of new evidence on such an appeal is subject to Ladd v Marshall principles, which may be departed from in exceptional circumstances where the interests of justice require.

Paragraph92.

In relation to the role of the IAT, we have concluded

The Tribunal remained seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties;

ii)

Following the decision, when it was considering the applications for leave to appeal to this Court, it had a discretion to direct a re-hearing; this power was not dependent on its finding an arguable error of law in its original decision.

iii)

However, in exercising such discretion, the principle of finality would be important. To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.

We should emphasise that this analysis is based on the regime applicable to this case, under which the right of appeal to the IAT was not confined to issues of law (before the change made by the 2002 Act, s 101: see para 17 above).

Paragraph93.

Applying those principles to the present cases, the actual reasons given by the IAT for refusing to consider the new evidence were erroneous in law. We understand its desire on practical grounds to confine the evidence to that produced at the hearing. However, where, as in these cases, there is substantial delay before the decision is issued, new evidence may emerge which undermines the basis of the conclusions reached at the hearing. If so, it cannot automatically be excluded, where justice requires it to be taken into account.

Paragraph94.

In the present case, the new evidence was not produced until after the decision was promulgated. Mr Kovats submits that in such circumstances, the IAT would have been entitled to reject it, applying Ladd v Marshall principles, because it could have been made available earlier. We see the theoretical force of that submission. However, it ignores the practical realities. Assuming some legal assistance is available to the asylum seeker, it is likely to be concentrated at the critical points in the process: that is, for present purposes, the hearings before the Adjudicator and IAT, and the consideration of possible appeal following receipt of their decisions. It seems unrealistic to expect continuous monitoring of potential new evidence in the intervening periods. Even if it were possible, it would be very difficult for the IAT (as their stated reasons made clear) to handle such new evidence administratively. The obvious point to review the matter, where necessary, is as part of any application for leave to appeal. If the discretion of the Tribunal is limited in the way we have suggested, the extra burden should not be unmanageable.

Paragraph95.

Accordingly, on the view we have taken of its powers under rule 30 (2)(c), the IAT should in principle have considered whether the new evidence justified exercising its discretion to direct a rehearing. Before remitting these cases for re-consideration by the IAT, we need to be satisfied that, if they had applied the right approach, there might have been a case for such a direction. We have already summarised the content of the new evidence. We would make the following comments:

E’s case The evidence (in the form of new reports from Human Rights Watch and the World Organisation against Torture) is credible. It throws considerable doubt on the IAT’s understanding that the persecution of members of the Muslim Brotherhood was solely related to the 2000 elections. On the other hand, it does little to undermine the IAT’s conclusion as to the lack of risk to this particular appellant, in view of his limited connection with Egypt, and the “very low level” of his activities if any.

ii)

R’s case The 2003 CIPU report is obviously credible. It shows that, at the time of the IAT hearing, there was (in the form of the July 2002 UNCHR report) objective evidence of serious theoretical risk to apostates, although not of specific examples. That evidence is particularly significant because it directly contradicts the impression given (in good faith) by the Home Office, based on the 2002 CIPU report, that apostasy had ceased to be an issue. On the other hand, there is no indication why at the hearing the appellant himself chose to rely solely on evidence which predated the removal of the Taliban. The evidence of Dr Gopal provides some support for the risk to apostates, but again it is unsupported by specific examples. No reason is given for it not having been made available before the hearing.

Paragraph96.

It would be a matter for the IAT to decide whether this material meets the Ladd v Marshall tests, or whether there is some reason for exceptional treatment in the interests of justice. Dr Gopal’s evidence appears to fail the first test. The other evidence at first sight meets that test, and is credible and material. The real issue, which is a matter for the IAT, is whether, in the context of their other findings, it would have been likely to have “an important influence on the result”. Although we are far from saying that the new evidence would have been decisive in favour of the appeals, the answer is not so clear that we should deny the appellants proper consideration by the IAT, which is the tribunal best fitted to make that assessment.

Paragraph97.

In those circumstances, it is unnecessary for us to decide whether, in either case, the new evidence, if admitted, would demonstrate an error of law, reviewable under the more limited jurisdiction of the court. Furthermore, since the IAT will be able to look at the matter more broadly, and is better equipped to do so, we see no purpose in attempting that task.

Paragraph98.

Accordingly, we think it right for the appeals to be allowed on the narrow ground, that in each case the IAT wrongly failed to consider the new evidence in the context of its discretion to direct a rehearing. The matters will be remitted to the IAT to reconsider in the light of the principles set out in this judgment.

ORDER: Appeal allowed as per agreed minute of order. Permission to appeal to the House of Lords refused.

(Order does not form part of the approved judgment)

[2019] UKSC 58

On appeal from: [2018] EWCA Civ 721

JUDGMENT

R (on the application of Lancashire County Council) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs and another (Respondents)R (on the application of NHS Property Services Ltd) (Appellant) v Surrey County Council and another (Respondents)

before

Lord Wilson

Lord Carnwath

Lady Black

Lady Arden

Lord Sales

JUDGMENT GIVEN ON

11 December 2019

Heard on 15 and 16 July 2019

Appellant (1)

Respondent (1)

Douglas Edwards QC

Tim Buley QC

Jeremy Pike

Daisy Noble

(Instructed by Sharpe Pritchard LLP on behalf of Jane Turner, Lancashire County Council Legal, Governance and Registrars Service)

(Instructed by The Government Legal Department)

Respondent (2)

Ned Westaway

(Instructed by Harrison Grant)

Appellant (2)

Respondent (2)

George Laurence QC

Dr Ashley Bowes

Jonathan Clay

Simon Adamyk

(Instructed by Womble Bond Dickinson (UK) LLP (Newcastle))

(Instructed by Richard Buxton Solicitors (Cambridge))

Appellant (1):- Lancashire County Council

Respondents:-

(1) Secretary of State for the Environment, Food and Rural Affairs

(2) Janine Bebbington

Appellant (2):- NHS Property Services Ltd

Respondents:-

(1) Surrey County Council Legal Services instructed by Surrey County Council

(2) Timothy Jones

LORD CARNWATH AND LORD SALES: (with whom Lady Black agrees)

Introduction

The principal issue in these two appeals relates to the circumstances in which the concept of “statutory incompatibility” will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7; [2015] AC 1547 (“Newhaven”) this court held that the duty under section 15 of the Commons Act 2006 did not extend to an area held under the specific statutes relating to the Newhaven Harbour. We are asked to decide whether the same principle applies to land held by statutory authorities under more general statutes, relating respectively (in these two cases) to education and health services.

Although the two appeals raise similar issues, they were dealt with by different procedural routes. The first (Lancashire) is within the area of a “pilot” scheme under the Commons Registration (England) Regulations 2008, under which, where the registration authority (in this case Lancashire County Council - “LCC”) has an interest in the land, applications are referred for determination to the Planning Inspectorate (regulations 27-28). The second case (Surrey) was not covered by the pilot scheme. The application was determined by Surrey County Council as registration authority, following a non-statutory inquiry before a barrister appointed by the council.

Modern greens - development of the law

As will be seen, in Newhaven the issue was described as one of “statutory interpretation”. Unfortunately, interpreting the will of Parliament in this context is problematic, because there is no indication that the concept of a modern green, as it has been developed by the courts, was part of the original thinking under the Commons Registration Act 1965. Lord Carnwath reviewed the earlier history, including the Report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462) which preceded the 1965 Act, in his judgments at first instance in R v Suffolk County Council, Ex p Steed (1995) 71 P & CR 463 (one of the first cases under the 1965 Act), and later in the Court of Appeal in Oxfordshire County Council v Oxford City Council [2006] Ch 43 (“the Trap Grounds case”). As he observed in the latter:

“51.

The concept of a ‘modern’ class c green, as it has emerged in the cases since 1990, would, I think, have come as a surprise to the Royal Commissioners, and to the draftsman of the 1965 Act. There is no hint of it in the Royal Commission Report, or the Parliamentary Debates on the Bill. The commissioners’ terms of reference were directed to sorting out the problems of the past, not to creating new categories of open land, for which there was no obvious need. By this time, of course, there were numerous statutes conferring on public authorities modern powers for the creation and management of recreational spaces for the public.”

Lord Carnwath also noted, at para 52, that, as late as 1975, in New Windsor Corpn v Mellor [1976] Ch 380 (“New Windsor”), all three members of the Court of Appeal (including Lord Denning MR) had thought it natural to read the Act as referring to 20 years “before the passing of the Act” (at pp 391, 395) - an interpretation which would have ruled out the possibility of a modern green being established by more recent use.

It was not until the early 1990s that claims were first put forward based on 20 years’ use since the 1965 Act had come into force at the end of July 1970 (apparently following the advice of the Open Spaces Society in their publication Getting Greens Registered (1995)). When the first case came before the House of Lords in 1999 (R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335 - “Sunningwell”), no one seems to have argued that the Act was directed to pre-1965 use only. In that case, the House of Lords, led by Lord Hoffmann, adopted a relatively expansive view of the new concept. He drew a parallel with the Rights of Way Act 1932, which he thought had reflected Parliament’s view “that the previous law gave too much weight to the interests of the landowner and too little to the preservation of rights of way which had been for many years in de facto use” and the “strong public interest in facilitating the preservation of footpaths for access to the countryside” (p 359D-E). He commented, at p 359E:

“… in defining class c town or village greens by reference to similar criteria in 1965, Parliament recognised a similar public interest in the preservation of open spaces which had for many years been used for recreational purposes.”

That interpretation of Parliament’s thinking would, with respect, have been difficult to deduce from the 1965 Act itself, or from anything said - in Parliament or anywhere else - at the time. However, when the issue came before the House again, in the Trap Grounds case [2006] 2 AC 674, Lord Hoffmann was able to claim implicit Parliamentary support in the debates which preceded the amendments made by the Countryside and Rights of Way Act 2000. As he said, at para 26:

“No one voiced any concern about the construction which the House in its judicial capacity had given to the 1965 Act. On the contrary, the only question raised in debate was whether the locality rule did not make it too difficult to register new village greens.”

By then, as he also noted (para 28) the new Commons Bill (the 2006 Act as it became) was before Parliament, providing a further opportunity for legislative reconsideration if thought appropriate. In Newhaven [2015] AC 1547, para 18,this fact was cited as a reason for not having given permission to reopen the general approach adopted in the Trap Grounds case.

As to the attributes of a modern green, the 2006 Act itself, like the 1965 Act which preceded it, is very sparse in the information it gives. Section 1 of the 2006 Act requires each registration authority to maintain a register of town or village greens. Section 15 indicates that any person can apply to register land as a green where, in subsection (1)(a) -

“a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for the period of at least 20 years …”

As to the purpose of registration, section 2(2)(a) states simply that the purpose of the register is “to register land as a town or village green”. The Act offers no further guidance as to the interpretation of the section 15 formula, nor as to the practical consequences of registration.

An unexplained curiosity is that section 10 of the 1965 Act, which provided that the register was “conclusive evidence of the matters registered, as at the date of registration”, is not repeated in the 2006 Act. As things stand the repeal of section 10 has been brought into effect only in the pilot areas. (Section 18 of the 2006 Act, headed “Conclusiveness”, which has effect in the pilot areas, does not on its face go so far as section 10.) In the Trap Grounds case, Lord Hoffmann had agreed (at para 43) with Lord Carnwath’s analysis in the Court of Appeal [2006] Ch 43, para 100, that the 1965 Act “created no new legal status, and no new rights or liabilities other than those resulting from the proper interpretation of section 10”. It was on the “rational construction of section 10” that he relied for his view that land registered as a town or village green “can be used generally for sports and pastimes” (para 50), and was also subject to section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 (para 56). None of the experienced counsel before us was able to offer an explanation for the disappearance of section 10, but none sought to argue that it had made any material difference to the rights following registration. Not without some hesitation, we shall proceed on that basis.

Lord Hoffmann made clear that, following registration, the owner was not excluded altogether, but retained the right to use the land in any way which does not interfere with the recreational rights of the inhabitants, with “give and take on both sides” (para 51). That qualification was further developed in R (Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 1; [2010] 2 AC 70 (“Lewis”), in which it was held that the local inhabitants’ rights to use a green following registration could not interfere with competing activities of the landowner to a greater extent than during the qualifying period.

One important control mechanism which emerged from the cases was the need for the use to be “as of right”. It was established that these words, by analogy with the law of easements, imported the principle “nec vi, nec clam, nec precario”, or in other words “the absence of any of the three characteristics of compulsion, secrecy or licence” (per Scott LJ in Jones v Bates [1938] 2 All ER 237, 245, cited by Lord Hoffmann in Sunningwell [2000] 1 AC 335, 355). It followed that in practice an owner could prevent use qualifying under section 15 by making it sufficiently clear to those seeking to use the land (generally by suitable notices) either that their use was objected to, or that it was permissive. On the other hand, silent acquiescence in the use, or toleration, did not prevent it being “as of right”.

More recently (from 25 April 2013) amendments made by the Growth and Infrastructure Act 2013 (embodied in new sections 15A and following of the 2006 Act) have provided some assistance to landowners, first by enabling a formal statement to be made to bring user “as of right” to an end, and secondly by defining certain planning-related “trigger events” which suspend or extinguish the right to apply to register a green. In Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840; [2019] PTSR 1980, para 4, Lewison LJ said of these amendments:

“Ever since the Trap Grounds case … the courts have adopted a definition of a TVG [town or village green] which goes far beyond what the mind’s eye would think of as a traditional village green. The consequence of this interpretation of the definition is that there have been registered as TVGs: rocks, car parks, golf courses, school playgrounds, a quarry, scrubland, and part of a working port. If land is registered as a TVG the effect of the registration is, for practical purposes, to sterilise land for development. This became a concern for the Government, because the criteria for registration did not take into account any planning considerations; and because it was thought in some quarters that applications for registration of TVGs were being used as a means of stopping development outside the planning system.”

The 2013 amendments are of no direct relevance to the issues in the present appeal, but they are relied on as showing that Parliament has given specific attention to the balance to be drawn between the rights of the various interests involved.

We would draw two main lessons from the historical review. First, whatever misgivings one may have about the unconventional process by which the concept of a modern green became part of our law, the emphasis now should be on consolidation, not innovation. Secondly, the balance between the interests of landowners and those claiming recreational rights, as established by the authorities, and as now supplemented by the 2013 Act, should be respected. Our task in the present appeal is not to make policy judgments, but simply to interpret the majority judgment in Newhaven and apply it to the facts of these cases.

The proceedings and the parties

Lancashire

The land at issue in the first appeal is known as Moorside Fields, in Lancaster. It lies adjacent to Moorside Primary School and extends to some 13 hectares. It is divided into five areas, referred to in the proceedings as Areas A to E, described (by the planning inspector) as follows:

“Area A, referred to as the meadow was, until recently, an undeveloped plot of land. It is adjacent to Moorside Primary School (the school) and is currently being used to facilitate the construction of an extension at the rear of the school. Area B is a mowed field, referred to as the school playing field and both it and Area A are currently surrounded by fencing.

Areas C and D border Areas A and B. In the past they have been the subject of mowing tenancy agreements but these ceased in around 2001. They are separated from each other and from Areas A and B by … hedges and in places are overgrown with brambles. Area E, also adjacent to the school, is currently overgrown and difficult to access. At some times of the year it contains a pond.”

Like the school the land is owned by LCC, the present appellant, which is both education authority and registration authority.

On 9 February 2010 Ms Janine Bebbington, a local resident, applied to register the land as a town or village green. Her application was based on 20 years’ qualifying use up to the date of registration, or alternatively up to 2008. LCC, as local education authority, objected. Following a statutory inquiry, an inspector appointed by the Secretary of State (Ms Alison Lea, a solicitor) in a decision letter dated 22 September 2015 determined that four of the five areas (that is A to D, but not E) should be registered under the Act. She excluded Area E because she found insufficient evidence of its use over the 20 year period. LCC has postponed formal registration of Areas A to D, pending the outcome of the judicial review claim.

LCC maintains that the land was acquired for and remains appropriated to educational purposes, in exercise of the LCC’s statutory powers as education authority. The statutory provisions upon which LCC relied (or now rely) as showing incompatibility were: (1) section 8 of the 1944 Education Act which imposed a duty on local education authorities “to secure that there shall be available for their area sufficient schools” for providing primary and secondary education, sufficient in number, character and equipment; (2) sections 13 and 14 of the Education Act 1996 which require local authorities to contribute to the development of the community by securing efficient primary and secondary education; (3) section 542 of the 1996 Act which requires school premises to conform to prescribed standards, including (under regulation 10 of the School Premises (England) Regulations (SI 2012/1943)) suitable outside space for physical education and outside play; and (4) section 175 of the Education Act 2002 which requires the education authority to “make arrangements for ensuring that their education functions are exercised with a view to safeguarding and promoting the welfare of children”. (The issue of safeguarding does not appear to have been raised at the inquiry.)

The inspector was not satisfied that the land was held for educational purposes (an issue to which we shall return below), but even on the assumption that it was she found no incompatibility:

“119.

Furthermore, even if the land is held for ‘educational purposes’, I agree with the applicant that that could cover a range of actual uses. LCC states that the landholding is associated with a specific statutory duty to secure a sufficiency of schools and that if LCC needed to provide a new school or extra school accommodation in Lancaster in order to enable it to fulfil its statutory duty, it would not be able to do so on the Application Land were it to be registered as a town or village green. However, Areas A and B are marked on LCC’s plan as Moorside Primary School. The school is currently being extended on other land and will, according to Lynn MacDonald [a school planning manager for the county council], provide 210 places which will meet current needs. There is no evidence to suggest that the school wishes to use these areas other than for outdoor activities and sports and such use is not necessarily incompatible with use by the inhabitants of the locality for lawful sports and pastimes.

120.

Areas C and D are marked on LCC’s plan as ‘Replacement School Site’. However, there is no evidence that a new school or extra school accommodation is required on this site, or indeed anywhere in Lancaster. Lynn MacDonald stated that the Application Land may need to be brought into education provision at some time but confirmed that there were no plans for the Application Land within her five-year planning phase.

121.

Nevertheless, she pointed out there is a rising birth rate and increased housing provision in Lancaster, and that although there are surplus school places to the north of the river, no other land is reserved for school use to the south of Lancaster. Assets are reviewed on an annual basis and if not needed land can be released for other purposes. However there was no prospect that this would happen in relation to the Application Land in the immediate future.

122.

I do not agree with LCC’s submission that the evidence of Lynn MacDonald demonstrates the necessity of keeping the Application Land available to guarantee adequate future school provision in order to meet LCC’s statutory duty. Even if at some stage in the future there becomes a requirement for a new school or for additional school places within Lancaster, it is not necessarily the case that LCC would wish to make that provision on the Application Land.”

She concluded (para 124):

“124.

It seems to me that, in the absence of further evidence, the situation in the present case is not comparable to the statutory function of continuing to operate a working harbour where the consequences of registration as a town or village green on the working harbour were clear to their Lordships [in Newhaven]. Even if it is accepted that LCC hold the land for ‘educational purposes’, there is no ‘clear incompatibility’ between LCC’s statutory functions and registration of the Application Land as a town or village green. Accordingly I do not accept that the application should fail due to statutory incompatibility.”

On the LCC’s application for judicial review, the inspector’s decision was upheld by Ouseley J [2016] EWHC 1238 (Admin), including her approach to the issue of statutory incompatibility.

Surrey

The second appeal relates to some 2.9 hectares of land at Leach Grove Wood, Leatherhead, owned by NHS Property Services Ltd (“NHS Property Services”), a company wholly owned by the Secretary of State for Health. The land adjoins Leatherhead Hospital, and is in the same freehold title. An application for registration under the Act was made by Ms Philippa Cargill on 22 March 2013, with the support of Mr Timothy Jones and others. They relied on use over a period of 20 years ending in January 2013 (when permissive signs were erected on the land).

At the time of the application, the land was owned by the Surrey Primary Care Trust. By section 83(1) of the National Health Service Act 2006 primary care trusts were under a duty to provide, or to secure the provision of, primary medical services in their area. The land was held by the Trust pursuant to the statute, for those purposes. On the dissolution of the Trust in 2013, the freehold title of the land was transferred to NHS Property Services, which had been created by the Secretary of State for Health under his power to form companies “to provide facilities or services to persons or bodies exercising functions, or otherwise providing services, under this Act” (section 223(1) of the National Health Service Act 2006). Following the amendment of the National Health Service Act 2006 by the Health and Social Care Act 2012, functions previously exercised by the Secretary of State acting through a primary care trust fell to be exercised by a clinical commissioning group (“CCG”) - in this case the Surrey Downs Clinical Commissioning Group. The principal statutory duties of a CCG are defined by section 3(1) of the National Health Service Act 2006; in summary they involve the provision of hospital accommodation and medical services “to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility”.

Following a non-statutory inquiry, the inspector, William Webster, barrister, in his report dated 9 June 2015, recommended refusal of registration. He rejected the company’s objection based on statutory incompatibility (paras 175(d)-(f)). He contrasted the case with Newhaven [2015] AC 1547 in which there had been “an obvious and irreconcilable clash as between the conflicting statutory regimes”:

“(e)

… The position of the NHS is quite different in that no positive duty (analogous to that imposed on the undertaker in Newhaven) arises on the part of the landowner to do anything in the case of the land (in contrast to Newhaven) and the general duty imposed on the Secretary of State to promote a comprehensive health service is wholly unaffected.

(f)

It seems to me that it is irrelevant that the land may be held under the same title as the remainder of the hospital site. The fact that the relevant NHS bodies had (and still has [sic]) the capacity to use the land for health and ancillary purposes is no different to any other public body holding land for a purpose which they do not choose to exercise for the time being.”

He also accepted that there had been sufficient qualifying use of the land by local inhabitants for more than 20 years, but he held that it was not in respect of a relevant “locality” or “neighbourhood” as required by section 15. Surrey County Council, as registration authority, did not accept his recommendation, but determined to register the land which was done on 5 October 2015.

On the application for judicial review by NHS Property Services, on 13 July 2016 Gilbart J ([2016] EWHC 1715 (Admin); [2017] 4 WLR 130) quashed the registration, holding that the county council had failed properly to consider the question of statutory incompatibility. He had before him the judgment of Ouseley J in the Lancashire case ([2016] EWHC 1238 (Admin)), but distinguished it by reference to the wider powers conferred by the education statutes:

“134.

… It is clear that there was no general power in any of the relevant bodies to hold land. Land could only be acquired or held if done so for the purposes defined in the relevant Acts. The defined statutory purposes do not include recreation, or indeed anything outside the purview of (in summary) the purposes of providing health facilities. Could the land be used for the defined statutory purposes while also being used as a town or village green? No-one has suggested that the land in its current state would perform any function related to those purposes, and the erection of buildings or facilities to provide treatment, or for administration of those facilities, or for car parking to serve them, would plainly conflict with recreational use.

135.

Indeed, it is very hard indeed to think of a use for the land which is consistent with those powers, and which would not involve substantial conflict with use as a village green. A hospital car park, or a clinic, or an administrative building, or some other feature of a hospital or clinic would require buildings or hard standing in some form over a significant part of the area used. By contrast, it is easy to think of functions within the purview of education, whereby land is set aside for recreation. Indeed, there is a specific statutory duty to provide recreational facilities, which may include playing fields, and other land, for recreation, the playing of games, and camping, among other activities - see section 507A Education Act 1996.

136.

It is not relevant to the determination of the issue that the land has not in fact been used for the erection of hospital buildings or used for other hospital related purposes. The question which must be determined is not the factual one of whether it has been used, or indeed whether there any plans that it should be, but only whether there is incompatibility as a matter of statutory construction. If the land is in fact surplus to requirements, then the use of the [2006 Act] is not the remedy.

137.

Given those conclusions, it is my judgement that there is a conflict between the statutory powers in this case and registration.”

The Court of Appeal

The appeals in both cases, respectively by LCC and the applicants for registration in the Surrey case, were heard together by the Court of Appeal (Jackson, Lindblom and Thirlwall LJJ). In a judgment dated 12 April 2018 ([2018] EWCA Civ 721; [2018] 2 P & CR 15), given by Lindblom LJ, with whom the others agreed, the court upheld the decision to register in both cases. On the issue of statutory incompatibility, he distinguished the Newhaven case [2015] AC 1547, for reasons which are sufficiently apparent from the following short extracts from the judgment:

Lancashire

“40.

Crucially, as a matter of ‘statutory construction’ there was no inconsistency of the kind that arose in Newhaven Port & Properties between the provisions of one statute and the provisions of the other. The statutory purpose for which Parliament had authorized the acquisition and use of the land and the operation of section 15 of the 2006 Act were not inherently inconsistent with each other. By contrast with Newhaven Port & Properties, there were no ‘specific’ statutory purposes or provisions attaching to this particular land. Parliament had not conferred on the county council, as local education authority, powers to use this particular land for specific statutory purposes with which its registration as a town or village green would be incompatible.

Surrey

46.

As in the Lancaster case, therefore, the circumstances did not correspond to those of Newhaven Port & Properties. The land was not being used for any ‘defined statutory purposes’ with which registration would be incompatible. No statutory purpose relating specifically to this particular land would be frustrated. The ownership of the land by NHS Property Services, and the existence of statutory powers that could be used for the purposes of developing the land in the future, was not enough to create a ‘statutory incompatibility’. The clinical commissioning group would still be able to carry out its statutory functions in the provision of hospital and other accommodation and the various services and facilities within the scope of its statutory responsibilities if the public had the right to use the land at Leach Grove Wood for recreational purposes, even if the land itself could not then be put to use for the purposes of any of the relevant statutory functions. None of those general statutory functions were required to be performed on this land. And again, it is possible to go somewhat further than that. Although the registration of the land as a village green would preclude its being developed by the construction of a hospital or an extension to the existing hospital, or as a clinic or administrative building, or as a car park, and even though the relevant legislation did not include a power or duty to provide facilities for recreation, there would be nothing inconsistent - either in principle or in practice - between the land being registered as a green and its being kept open and undeveloped and maintained as part of the Leatherhead Hospital site, whether or not with access to it by staff, patients or visitors. This would not prevent or interfere with the performance of any of the relevant statutory functions. But in any event, as in the Lancaster case, the two statutory regimes were not inherently in conflict with each other. There was no ‘statutory incompatibility’.”

Was the Lancashire land held for educational purposes?

Before we turn to the main issue it is convenient to dispose of a preliminary issue which arises only in respect of the first appeal. For what purposes was the land held? The inspector recorded the evidence on which LCC relied as showing that the land was held for the relevant statutory purposes.

“113.

LCC has provided Land Registry Official copies of the register of title which show that LCC is the registered proprietor of the Application Land. Areas A, B and E were the subject of a conveyance dated 29 June 1948, a copy of which has been provided. It makes no mention of the purposes for which the land was acquired but is endorsed with the words ‘Recorded in the books of the Ministry of Education under section 87(3) of the Education Act 1944’. The endorsement is dated 12 August 1948.

114.

Areas C and D were the subject of a conveyance dated 25 August 1961. Again the conveyance makes no mention of the purposes for which the land was acquired but the copy provided has a faint manuscript endorsement as follows ‘Education Lancaster Greaves County Secondary School’.

115.

In addition LCC provided an instrument dated 23 February 1925 and a letter from LCC to the school dated 1991. The instrument records that the Council of the Borough of Lancaster has applied to the Minister of Health for consent to the appropriation for the purposes of the Education Act 1921 of the land acquired by the council otherwise than in their capacity as Local Education Authority. The land shown on the plan is the [Barton Road Playing Field (land also owned by LCC, to the immediate west of Areas C and D and separated from them by a shallow watercourse, but accessible from them via a stone bridge and also stepping stones)]. An acknowledgement and undertaking dated March 1949 refers to the transfer to the county council of the education functions of the City of Lancaster and lists deeds and documents relating to school premises and other land and premises held by the corporation. It lists the [Barton Road Playing Field]. The 1991 letter encloses a note from Lancashire Education Committee outlining a proposal to declare land surplus to educational requirements. This relates to the land adjacent to Area C which was subsequently developed for housing. As none of this documentation relates directly to the Application Land I do not find it of particular assistance.

116.

At the inquiry LCC provided a print out of an electronic document headed ‘Lancashire County Council - Property Asset Management Information’ which in relation to ‘Moorside Primary School’ records the committee as ‘E’. I accept that it is likely that this stands for ‘Education’. An LCC plan showing land owned by ‘CYP education’ shows Areas A, B and E as Moorside Primary School and Areas C and D as ‘Replacement School Site’. In relation to Areas C and D the terrier was produced, and under ‘committee’ is the word ‘education’. The whole page has a line drawn through it, the reason for which is unexplained.”

The inspector stated her conclusions:

“117.

LCC submits that the documentation provides clear evidence that the Application Land is held for educational purposes and that no further proof is necessary. However, no council resolution authorising the purchase of the land for educational purposes or appropriating the land to educational purposes has been provided. The conveyances themselves do not show for what purpose the council acquired the land, and although the endorsements on those documents make reference to education, the authority for them is unknown. Lynn MacDonald … confirmed that the Application Land was identified as land which may need to be brought into education provision, but was unable to express an opinion about the detail of LCC’s ownership of the land.

118.

The information with regard to the purposes for which the Application Land is held by LCC is unsatisfactory. Although there is no evidence to suggest that it is held other than for educational purposes, it is not possible to be sure that LCC’s statement that ‘the Application Land was acquired and is held for educational purposes and was so held throughout the 20-year period relevant to the Application’ accurately reflects the legal position.”

In fairness to the inspector, we should note that this issue seems to have been raised rather the late in the day, and was less than fully explored in LCC’s submissions before her (see Ouseley J [2016] EWHC 1238 (Admin), para 49, noting Ms Bebbington’s evidence as to what took place at the inquiry; the counsel who have appeared for LCC in the court proceedings did not act for it at the inquiry.

Ouseley J indicated that, left to himself, he would have been likely to have reached a different view, at para 57:

“I rather doubt that, confined to the express reasoning in the DL [the decision letter], I would have reached the same conclusion as the inspector as to what could be inferred from the conveyances and endorsements on them in relation to the purpose of the acquisition of the various areas. I can see no real reason not to conclude, on that basis, that the acquisition was for educational purposes. No other statutory purpose for the acquisition was put forward; there was no suggestion that the parcels were acquired for public open space. I would have inferred that there were resolutions in existence authorising the acquisitions for that contemporaneously evidenced intended purpose, which simply had not been found at this considerable distance in time. It would be highly improbable for the lands to have been purchased without resolutions approving it. The presumption of regularity would warrant the assumption that there had been resolutions to that effect, and that the purpose resolved upon would have been the one endorsed on the conveyances. This is reinforced by the evidence in DL para 116, which shows the property, after acquisition, to be managed by or on behalf of the Education Committee. The actual use made of some of the land is of limited value in relation to the basis of its acquisition or continued holding.”

However, he was unwilling to conclude that the inspector’s decision was irrational, at para 61:

“As I read the DL, the fundamental problem for the inspector in the LCC evidence was the absence of what she regarded as the primary sources for power under which the acquisition or appropriation of the land occurred: the resolutions to acquire or to appropriate it for educational purposes. She was entitled to regard those as the primary sources to prove the basis for the exercise of the powers of the authority …

she approached her decision, as I read it, knowing what transpired before her, not on the basis that resolutions related to acquisition might well have existed but could not be found at this distance in time, but on the basis that none had been produced despite proper endeavours to find them, endeavours which had nonetheless produced the conveyances, and other related documents. So she was not prepared to assume that resolutions in relation to acquisition had existed. That was entirely a matter for her, and cannot come close to legal error.”

The Court of Appeal in substance adopted Ouseley J’s reasoning.

In this court, Mr Edwards QC for LCC accepts that this issue was one of fact for the inspector. But he submits that her conclusion was unsupportable on the evidence before her, or was vitiated by error of fact (under the principles set out in E v Secretary of State for Home Department [2004] QB 1044). For good measure he submits that the courts below were wrong not to admit evidence, discovered after the inquiry, in the form of council minutes from February 1948 recording the resolution to acquire Areas A and B (and E) for a “proposed primary school”.

He starts from the proposition that the LCC, as a statutory local authority, could only acquire land “for the purposes of any of their [statutory] functions …” (see now the Local Government Act 1972, section 120(1)(a)); and that in normal circumstances the land would continue to be held for the purpose for which it was acquired unless validly appropriated for an alternative statutory purpose, when no longer required for the first (section 122). The inspector, he says, gave no weight to that statutory context.

Paragraph29.

As regards Areas A, B and E, he submits, the evidence before the inspector was quite clear (even without the new evidence). The inspector properly noted that the acquisition had been “Recorded in the books of the Ministry of Education under section 87(3) of the Education Act 1944”. However, she failed to understand or give due weight to the significance of that note. As Mr Edwards explains, the effect of section 87 of the Education Act 1944 (headed “Exemption of assurances of property for educational purposes from the Mortmain Acts”) was to exempt from the Mortmain and Charitable Uses Act 1888 and related Acts, land transferred (inter alia) to a local education authority, if the land was to be used for educational purposes. (The law of Mortmain dating back to the Statutes of Mortmain in 1279 and 1290, was not finally abolished until 1960.) A copy of the conveyance or other document by which the transfer of such land was made was required, within six months of its taking effect, to be sent to the Education Minister. Section 87(3) provided that a record should be kept of any conveyance sent to the minister pursuant to the section. Accordingly, says Mr Edwards, the reference to the record under section 87(3) should have been treated by the inspector as clear evidence that the original purpose of the acquisition was for educational purposes, even in the absence of a contemporary resolution to that effect. Against that background, the lack of evidence of any competing purpose to which the land might have been appropriated over the subsequent years pointed to the inference that it continued to be held for its original purpose.

Paragraph30.

As regards Areas C and D, Mr Edwards submits, the indication on the 1961 conveyance of an educational purpose, taken with the references in later documents to its being treated as educational land, and the lack of any evidence of a competing purpose, were sufficient to support the inference, on the balance of probabilities, that education was the purpose for which it had been acquired and subsequently held.

Discussion

Paragraph31.

Although Mr Edwards has accepted that this issue was one of fact for the inspector, that concession needs to be seen in context. The inspector’s assessment was one depending, not so much on evaluation of oral evidence, but largely on the inferences to be drawn from legal or official documents of varying degrees of formality.

Paragraph32.

In our view, Ouseley J’s approach to the natural inferences to be drawn from the material before the inspector was correct, but he was wrong to be deflected by deference to the inspector’s fact-finding role. The main difference between them was in the weight given by the inspector to the absence of specific resolutions, from which she found it “not possible to be sure” that the land had been acquired and held for educational purposes. On its face the language appears to raise the threshold of proof above the ordinary civil test to which she had properly referred earlier in the decision. But even discounting that point, she was wrong in our view to place such emphasis on the lack of such resolutions. Her task was to take the evidence before her as it stood, and determine, on the balance of probabilities, for what purpose the land was held. On that approach, Ouseley J’s own assessment ([2016] EWHC 1238 (Admin)) was in our view impeccable. The inspector’s assessment was irrational, having regard to the relevant standard of proof and the evidence available. There was no evidence to support any inference other than that each part of the land had been acquired for, and continued during the relevant period to be held for, statutory educational purposes. An assessment made without any supporting evidence cannot stand: Edwards v Bairstow [1956] AC 14, 29.

Paragraph33.

In respect of Areas A and B, furthermore, there was a clear error of law, in the inspector’s failure to appreciate, or take account of, the significance of the reference to section 87(3) of the 1944 Act. This may be because she was given little assistance on the point by LCC at the inquiry. It is less clear why the point, having been clearly raised in submissions in the court proceedings (see Ouseley J, para 44), seems to have been ignored in the subsequent judgments. On any view, that reference, and the inferences to be drawn from it, went beyond a pure issue of fact, and were appropriate for review by the court. In agreement with Mr Edwards we would regard it as providing unequivocal support for the conclusion that the land comprising Areas A and B was acquired for educational purposes. There was no evidence to suggest that it had ever been appropriated to other purposes.

Paragraph34.

In respect of Areas C and D, the evidence is less clear-cut, but we agree with Mr Edwards’ submission that it is sufficient, on the balance of probabilities, to support the same conclusion and that, in the absence of any evidence to support any other view, it was irrational for the inspector to reach a different conclusion. Again, we think that Ouseley J’s assessment of the facts was the correct one.

Paragraph35.

In these circumstances it is unnecessary to consider whether Ouseley J erred in refusing to admit the new evidence. We note, however, that it does no more than support what was already a strong case in respect of Areas A and B; it does nothing to enhance the case for Areas C and D.

Implied permission

Paragraph36.

We can also deal more briefly with an issue that arises only in respect of the Surrey site: that is Mr Laurence QC’s application for permission to argue (for the first time) that the public’s use of the land for recreation should be treated as having implied permission from NHS Property Services or its predecessors, thus showing that the use was “by right” rather than “as of right”. This, as he accepts, is a departure from Sunningwell [2000] 1 AC 335, where it was held that mere toleration by a landowner of the public’s use could not be taken as evidence that the landowner had impliedly consented to that use. He seeks to distinguish the position of land that is held for public purposes such as by his client. We quote his printed case:

“… there is a critical distinction between (i) a private owner (such as the kindly rector in Sunningwell) tolerating use of land not held for public purposes - which can provide no evidence of an implied permission - and (ii) a public owner passively responding to recreational use in a statutory context which justifies the inference that that response to the public’s use of the land is evidence of an implicit permission so long as the permitted use does not disrupt the public authority’s use of the land for its statutory purposes. In such a case it is irrelevant that in a non-statutory, private context such a response might be characterised as toleration.”

Paragraph37.

He also relies on section 120(2) of the Local Government Act 1972, which authorises land acquired by agreement by a local authority for a particular purpose to be used, pending its requirement for that purpose, for any of the authority’s functions, which, he submits, would include recreational use. It can be inferred, accordingly, that any use by the public was permitted under that power, and as such was pursuant to the same kind of public law right, derived from statute, as was held in R (Barkas) v North Yorkshire County Council [2014] UKSC 31; [2015] AC 195 (“Barkas”) and Newhaven [2015] AC 1547 to give rise to implied permission.

Paragraph38.

This submission seems to us to face two major difficulties. The first is that no such claim was made before the inspector. As he recorded:

“174(f) No issue arises on ‘as of right’. There were no vitiating features in play which would preclude use as of right and the application land was at no time held by SCC [Surrey County Council] or by any of the various NHS bodies mentioned herein for purposes which conferred an entitlement on members of the public to use the land for informal recreation. For instance, there was no evidence of any overt act or acts on the part of the objector, or its predecessor, to demonstrate that, before January 2013, the landowner was granting an implied permission for local inhabitants to use the wood.”

In answer to this, Mr Laurence asserts that the issue is one of law rather than fact. Even if that were so, it would in our view be unfair to all those who took part in the five-day inquiry in 2015 to allow the point to be taken for the first time four years later in this court.

Paragraph39.

However, his main difficulty is that the submission is contradicted by clear authority. In R (Beresford) v City of Sunderland [2003] UKHL 60; [2004] 1 AC 889 Lord Walker had accepted the emphasis placed by Mr Laurence himself (appearing on that occasion for the supporters of registration) on “the need for the landowner to do something” (para 78); “passive acquiescence” could not be treated “as having the same effect as permission communicated (whether in writing, by spoken words, or by overt and unequivocal conduct)” (para 79). Later in the judgment (para 83) Lord Walker accepted that permission might be “implied by (or inferred from) overt conduct of the landowner, such as making a charge for admission, or asserting his title by the occasional closure of the land to all-comers”, but he found no evidence in that case of “overt acts (on the part of the city council or its predecessors)” justifying the inference of an implied licence.

Paragraph40.

Nothing in Barkas or Newhaven undermines the principle that passive acquiescence is insufficient. Mr Laurence’s then submission that the land-owner must “do something” remains good law, even if there has been some qualification of the form of communication required to the public. The existence in each case of an overt act of the owner was emphasised in the majority judgment in Newhaven [2015] AC 1547, para 71:

“In this case, as in Barkas, the legal position, binding on both landowner and users of the land, was that there was a public law right, derived from statute, for the public to go onto the land and to use it for recreational purposes, and therefore, in this case, as in Barkas, the recreational use of the land in question by inhabitants of the locality was ‘by right’ and not ‘as of right’. The fact that the right arose from an act of the landowner (in Barkas, acquiring the land and then electing to obtain ministerial consent to put it to recreational use; in this case, to make the Byelaws which implicitly permit recreational use) does not alter the fact that the ultimate right of the public is a public law right derived from statute (the Housing Act 1936 in Barkas; the 1847 Clauses Act and the 1878 Newhaven Act in this case).”

The law remains, as submitted by Mr Laurence in Beresford, that passive acquiescence, even by a statutory authority with power to permit recreational use, is not enough.

Paragraph41.

Accordingly we would refuse permission for this additional ground of appeal.

Statutory incompatibility

Paragraph42.

We turn next to the central issue in the case, based on the Newhaven case.

The majority judgment

Paragraph43.

In the judgment of the majority (given by Lord Neuberger PSC and Lord Hodge JSC) the decision not to confirm the registration was supported by two separate lines of reasoning: implied permission and statutory incompatibility. Although the latter was unnecessary for the decision, it was clearly identified as a separate ground of decision (para 74). Lord Carnwath was alone in basing his decision on the implied permission issue alone (para 137), seeing “considerable force” in the contrary reasoning on the latter issue of Richards LJ in the Court of Appeal ([2014] QB 186). No-one has argued that we should regard the majority’s reasoning on this issue as other than binding. Accordingly our decision in the present case depends to a large extent on the correct analysis of that reasoning, and its application to the facts of the two cases before us.

Paragraph44.

The operation of Newhaven Harbour had been subject to legislation since at least 1731. At the relevant time the governing statutes included (inter alia) the Newhaven Harbour and Ouse Lower Navigation Act 1847, section 49 of which required the trustees to -

“maintain and support the said harbour of Newhaven, and the piers, groynes, sluices, wharfs, mooring berths, and other works connected therewith …”

and section 33 of the Harbours, Docks and Piers Clauses Act 1847, which provided that, subject to payment of rates -

“… the harbour, dock and pier shall be open to all persons for the shipping and unshipping of goods, and the embarking and landing of passengers.”

Paragraph45.

The land owned by the harbour company (“NPP”) included an area known as West Beach, described in the judgment as “part of the operational land of the Harbour” (para 8), although not currently used for any harbour purpose. As the judgment explained, at para 9:

“The Beach owes its origin to the fact that, in 1883, pursuant to the powers granted by the 1863 Newhaven Act, the substantial breakwater was constructed to form the western boundary of the Harbour. The breakwater extends just over 700 metres out to sea. After the construction of the breakwater, accretion of sand occurred along the eastern side of the breakwater, and that accretion has resulted in the Beach.”

Paragraph46.

Following an application by the Newhaven Town Council to register the Beach as a town or village green, and the holding of a public inquiry, it was found by the inspector that the beach had been used by residents of the locality for well over 80 years (save during the war periods) for recreation. On that basis the registration authority resolved to register the land. That decision was subject to an application for judicial review, which succeeded before Ouseley J, but was dismissed by the Court of Appeal. Their decision was in turn reversed by the Supreme Court.

The judgment of this court in Newhaven

Paragraph47.

In the part of their judgment directed to the statutory incompatibility issue, Lord Neuberger and Lord Hodge referred to case law on public rights of way, easements and servitudes by way of analogy, adopting a cautious approach (paras 76-90). Nonetheless, they found it did provide guidance. In English law, public rights of way are created by dedication by the owner of the land, and the legal capacity of the landowner to dedicate land for that purpose is a relevant consideration (para 78, referring in particular to British Transport Commission v Westmorland County Council [1958] AC 126; see also para 87). Similarly, in the English law of private easements, the capacity of the owner of the potential servient tenement to grant an easement is relevant to prescriptive acquisition, which is based on the fiction of a grant by that owner (para 79). The law of Scotland with respect of creation of public rights of way and private servitudes had also developed on the footing that the statutory capacity of a public authority landowner to allow the creation of such rights was a relevant matter. In particular, in Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620 it was held that it was not possible that a public right of way “which it would be ultra vires to grant can be lawfully acquired by user” ([2015] AC 1547, paras 83-84); and in Ellice’s Trustees v Comrs of the Caledonian Canal (1904) 6 F 325 it was held that the commissioners of the canal did not have the power to grant a right of way which was not compatible with the exercise of their statutory duties, and that this also meant that no private right of way or servitude could arise by virtue of user of the land over many years by those claiming such a right of way (paras 85-86). Although the Scots law of prescription had been reformed by statute, Lord Neuberger and Lord Hodge still regarded the historic position as instructive. Their discussion of English law and Scots law in respect of dedication and prescription at paras 76-90 is significant for present purposes, because the reasoning in the cases in those areas regarding statutory incompatibility is general, and is not dependent on the narrower rule of statutory construction that a general provision does not derogate from a special one (generalia specialibus non derogant), to which they also later referred by way of analogy.

Paragraph48.

There follows the critical part of the majority judgment, under the heading “Statutory incompatibility: statutory construction”, the material parts of which we should quote in full, at paras 91-96:

“91.

As we have said, the rules of prescriptive acquisition apply only by analogy because Parliament in legislating for the registration of town and village greens has chosen similar wording (indulging ‘as of right’ in lawful sports and pastimes) in the 1965 and 2006 Acts. It is, none the less, significant in our view that historically in both English law and Scots law, albeit for different reasons, the passage of time would not give rise to prescriptive acquisition against a public authority, which had acquired land for specified statutory purposes and continued to carry out those purposes, where the user founded on would be incompatible with those purposes. That approach is also consistent with the Irish case, McEvoy v Great Northern Railway Co [1900] 2 IR 325, (Palles CB at pp 334-336), which proceeded on the basis that the acquisition of an easement by prescription did not require a presumption of grant but that the incapacity of the owner of the servient tenement to grant excluded prescription.

92.

In this case if the statutory incompatibility rested only on the incapacity of the statutory body to grant an easement or dedicate land as a public right of way, the Court of Appeal would have been correct to reject the argument based upon incompatibility because the 2006 Act does not require a grant or dedication by the landowner. But in our view the matter does not rest solely on the vires of the statutory body but rather on the incompatibility of the statutory purpose for which Parliament has authorised the acquisition and use of the land with the operation of section 15 of the 2006 Act.

93.

The question of incompatibility is one of statutory construction. It does not depend on the legal theory that underpins the rules of acquisitive prescription. The question is: ‘does section 15 of the 2006 Act apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green?’ In our view it does not. Where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes. Where there is a conflict between two statutory regimes, some assistance may be obtained from the rule that a general provision does not derogate from a special one (generalia specialibus non derogant), which is set out in section 88 of the code in Bennion, Statutory Interpretation, 6th ed (2013), p 281:

‘Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Accordingly the earlier specific provision is not treated as impliedly repealed.’

While there is no question of repeal in the current context, the existence of a lex specialis is relevant to the interpretation of a generally worded statute such as the 2006 Act.

94.

There is an incompatibility between the 2006 Act and the statutory regime which confers harbour powers on NPP to operate a working harbour, which is to be open to the public for the shipping of goods etc on payment of rates: section 33 of the 1847 Clauses Act. NPP is obliged to maintain and support the Harbour and its connected works (section 49 of the 1847 Newhaven Act), and it has powers to that end to carry out works on the Harbour including the dredging of the sea bed and the foreshore: section 57 of the 1878 Newhaven Act, and articles 10 and 11 of the 1991 Newhaven Order.

95.

The registration of the Beach as a town or village green would make it a criminal offence to damage the green or interrupt its use and enjoyment as a place for exercise and recreation - section 12 of the Inclosure Act 1857 … - or to encroach on or interfere with the green - section 29 of the Commons Act 1876 … See the Oxfordshire case [2006] 2 AC 674, per Lord Hoffmann, at para 56.

96.

In this case, which concerns a working harbour, it is not necessary for the parties to lead evidence as to NPP’s plans for the future of the Harbour in order to ascertain whether there is an incompatibility between the registration of the Beach as a town or village green and the use of the Harbour for the statutory purposes to which we have referred. Such registration would clearly impede the use of the adjoining quay to moor vessels. It would prevent the Harbour authority from dredging the Harbour in a way which affected the enjoyment of the Beach. It might also restrict NPP’s ability to alter the existing breakwater. All this is apparent without the leading of further evidence.”

We discuss this reasoning in detail below.

Paragraph49.

Finally in this part of the majority judgment reference is made to cases in which registration of land held by public bodies had been approved by the court: New Windsor, the Trap Grounds case and Lewis [2010] 2 AC 70. The treatment of these cases by Lord Neuberger and Lord Hodge is also significant for present purposes. As regards New Windsor, they emphasised that the land was not “acquired and held for a specific statutory purpose”, so “[n]o question of statutory incompatibility arose” (para 98). They observed that in the Trap Grounds case, though the land was wanted for use as an access road and housing development “there was no suggestion that [the city council] had acquired and held the land for specific statutory purposes that might give rise to a statutory incompatibility” (para 99). With respect to Lewis they pointed out that “[it] was not asserted that the council had acquired and held the land for a specific statutory purpose which would be likely to be impeded if the land were to be registered as a town or village green”; hence “[a]gain, there was no question of any statutory incompatibility” (para 100).

Paragraph50.

In relation to each of these cases, Lord Neuberger and Lord Hodge referred in entirely general terms to the statutory powers under which a local authority might hold land and were at pains to emphasise that the land in question was not in fact held in exercise of any such powers which gave rise to a statutory incompatibility. That was the basis on which they distinguished the cases. It is clearly implicit in this part of their analysis that they considered that land which was acquired and held by a local authority in exercise of general statutory powers which were incompatible with use of that land as a town or village green could not be registered as such.

Paragraph51.

Their discussion concludes, at para 101:

“In our view, therefore, these cases do not assist the respondents. The ownership of land by a public body, such as a local authority, which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility. By contrast, in the present case the statutory harbour authority throughout the period of public user of the Beach held the Harbour land for the statutory harbour purposes and as part of a working harbour.”

Incompatibility - the case for the appellants

Paragraph52.

For LCC Mr Edwards submits that the decision in Newhaven is of general application to land held by a statutory authority for statutory purposes, whatever the nature of the Act. He points out that the statutory duties or powers in Newhaven were not specific to the beach itself, but rather applied to all of the land acquired and held, from time to time, by NPP and its predecessors for the operation of the Port. NPP had not, within living memory, used the Beach for its statutory harbour purposes. The critical passage in the majority judgment (para 93) refers generally to land -

“which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes …”

It is not limited to statutory powers directed to a specific location or undertaking. No one has argued that the principle is limited to statutory undertakers, as opposed to public authorities in general. Nor is there any requirement for the land to be in actual use for statutory purposes at the point of registration; it simply has to be held for such purposes. In Newhaven the Beach had not been used for harbour purposes nor was there any fixed intention to do so at any particular time in the future (see para 96).

Paragraph53.

In the present case, notwithstanding the inspector’s findings, there was, he submits, clear incompatibility with LCC’s functions in respect of the land. The effect of registration would be that there accrues a right vested in the inhabitants of Scotforth East Ward to use the land for lawful sports and pastimes of a variety of forms, including walking and dog walking. LCC could not restrict their entry onto the land, including Area B which was at the time of the inspector’s decision used as a playing field by the school (see Decision Letter, para 10). Given the statutory safeguarding obligations towards primary school pupils, the use of that area for play could not continue. Any use of the land to provide a new or expanded school would be precluded. In substance, the land would be no longer available in any meaningful sense for use in fulfilment of the LCC’s statutory duties as local education authority.

Paragraph54.

Mr Laurence makes similar submissions in respect of the Surrey site, supported in that case by the conclusions of Gilbart J [2017] 4 WLR 130.

Discussion

Paragraph55.

In our judgment, the appeals should be allowed in both cases. On a true reading of the majority judgment in Newhaven on the statutory incompatibility point, the circumstances in each of these cases are such that there is an incompatibility between the statutory purposes for which the land is held and use of that land as a town or village green. This has the result that the provisions of 2006 Act are, as a matter of the construction of that Act, not applicable in relation to it.

Paragraph56.

The principle stated in the key passage of the majority judgment at para 93 is expressed in general terms. The test as stated is not whether the land has been allocated by statute itself for particular statutory purposes, but whether it has been acquired for such purposes (compulsorily or by agreement) and is for the time-being so held. Although the passage refers to land “acquired by a statutory undertaker”, we agree with Mr Edwards that there is no reason in principle to limit it to statutory undertakers as such, nor has that been argued by the respondents. That view is supported also by the fact that the majority felt it necessary to find particular reasons to distinguish cases such as New Windsor, the Trap Grounds case and Lewis,all of which involved local authorities rather than statutory undertakers. Accordingly, the appellants argue with force that the test is directly applicable to the land acquired and held for their respective statutory functions.

Paragraph57.

The reference in para 93 to the manner in which a statutory undertaker acquired the land is significant. Acquisition of land by a statutory undertaker by voluntary agreement will typically be by the exercise of general powers conferred by statute on such an undertaker, where the land is thereafter held pursuant to such powers rather than under specific statutory provisions framed by reference to the land itself (as happened to be a feature of the provisions which were applicable in Newhaven itself). That is also true of land acquired by exercise of powers of compulsory purchase. In relation to the latter type of case, the majority said in terms that “the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes” (para 93). On our reading of the majority judgment, it is clear that in relation to both types of case Lord Neuberger and Lord Hodge took the view that an incompatibility between general statutory powers under which land is held by a statutory undertaker (or, we would add, a public authority with powers defined by statute) and the use of such land as a town or village green excludes the operation of the 2006 Act.

Paragraph58.

This interpretation of the judgment is reinforced by the analysis it contains of the English and Scottish cases on dedication and prescription in relation to rights of way, easements and servitudes and the guidance derived from those cases (see paras 76 to 91): para 47 above. It is also reinforced by the way in which Lord Neuberger and Lord Hodge distinguished the New Windsor, Trap Grounds and Lewis cases: paras 49 and 50 above.

Paragraph59.

The respondents in these appeals submit that the reasoning of Lord Neuberger and Lord Hodge is more narrowly confined, and depends upon identifying a conflict between a particular regime governing an area of land specified in the statute itself and the general statutory regime in the 2006 Act. In support of this interpretation the respondents point to the highly specific nature of the statutory provisions governing the relevant land in Newhaven and to the reference in para 93 to the rule of statutory construction that a general provision does not derogate from a special one (generalia specialibus non derogant).

Paragraph60.

However, for the reasons we have set out above, this interpretation of the judgment does not stand up to detailed analysis. Lord Neuberger and Lord Hodge stated only that “some assistance” could be obtained from consideration of that rule of construction, not that it provided a definitive answer on the issue of statutory incompatibility. In other words, they treated it as a helpful analogy for the purposes of seeking guidance to answer the question they posed in para 93, just as they treated the English and Scottish cases on prescriptive acquisition as helpful. The way in which they posed the relevant question in para 93 shows that their reasoning is not limited in the way contended for by the respondents, as does their discussion of the prescriptive acquisition cases and the local authority cases of New Windsor, Trap Grounds and Lewis.

Paragraph61.

We do not find the construction of the 2006 Act as identified by the wider reasoning of the majority in Newhaven surprising. It would be a strong thing to find that Parliament intended to allow use of land held by a public authority for good public purposes defined in statute to be stymied by the operation of a subsequent general statute such as the 2006 Act. There is no indication in that Act, or its predecessor, that it was intended to have such an effect.

Paragraph62.

Lord Hoffmann in Sunningwell concluded that it could be inferred that Parliament intended to allow for the creation of new rights pursuant to the 1965 Act by reason of the “public interest in the preservation of open spaces which had for many years been used for recreational purposes”, but in doing so he recognised that “[a] balance must be struck” between rights attaching to private property and competing public interests of this character (p 359B-E). It is natural to expect that where a public authority is holding land for public purposes defined by statute which are incompatible with the public interest identified by implication from the 1965 Act, and now the 2006 Act, that balance will be affected. The proper inference as to Parliament’s intention is that the general public interest identified by Lord Hoffmann will in such a case be outweighed by the specific public interest which finds expression in the particular statutory powers under which the land is held.

Paragraph63.

As Lord Neuberger and Lord Hodge appreciated, this general point can be made with particular force in relation to land purchased using compulsory purchase powers set out in statute. Such powers are generally only created for use in circumstances where an especially strong public interest is engaged, such as could justify the compulsory acquisition of property belonging to others. It seems highly unlikely that Parliament intended that public interests of such a compelling nature could be defeated by the operation of the general provisions in the 2006 Act.

Paragraph64.

In construing the 2006 Act it is also significant that it contains no provision pursuant to which a public authority can buy out rights of user of a town or village green arising under that Act in relation to land which it itself owns. That is so however strong the public interest may now be that it should use the land for public purposes. Since in such a case the public authority already owns the land, it cannot use any power of compulsory purchase to eradicate inconsistent rights and give effect to the public interest, as would be possible if the land was owned by a third party. Although section 16 of the 2006 Act makes specific provision for “deregistration” of a green on application to the “appropriate national authority”, in relation to land which is more than 200 square metres in area the application must include a proposal to provide suitable replacement land: subsections (2), (3) and (5). This procedure is available to any owner of registered land, public or private; it is not designed to give effect to the public interest reflected in specific statutory provisions under which the land is held. Often it will be impossible in practice for a public authority to make a proposal to provide replacement land as required to bring section 16 into operation. Again, it would be surprising if Parliament had intended to create the possibility that the 2006 Act should in this way be capable of frustrating important public interests expressed in the statutory powers under which land is held by a public authority, when nothing was said about that in the 2006 Act.

Paragraph65.

In our view, applying section 15 of the 2006 Act as interpreted in the majority judgment in Newhaven, LCC and NHS Property Services can show that there is statutory incompatibility in each of their respective cases. As regards the land held by LCC pursuant to statutory powers for use for education purposes, two points may be made. First, so far as concerns the use of Area B as a school playing field, that use engages the statutory duties of LCC in relation to safeguarding children on land used for education purposes. LCC has to ensure that children can play safely, protected from strangers and from risks to health from dog mess. The rights claimed pursuant to the registration of the land as a town or village green are incompatible with the statutory regime under which such use of Area B takes place. Secondly, however, and more generally, such rights are incompatible with the use of any of Areas A, B, C or D for education purposes, including for example construction of new school buildings or playing fields. It is not necessary for LCC to show that they are currently being used for such purposes, only that they are held for such statutory purposes (see Newhaven, para 96). The 2006 Act was not intended to foreclose future use of the land for education purposes to which it is already dedicated as a matter of law.

Paragraph66.

Similar points apply in the Surrey case. Although the non-statutory inspector found against the appellant on the statutory incompatibility issue, the registration authority failed to consider it. Gilbart J was satisfied that, within the statutory regime applicable in that case, there was no feasible use for health related purposes, and indeed none had been suggested. The Court of Appeal took a different view, but largely, as we understand it, on the basis that recreational use of the subject land would not inhibit the ability of NHS Property Services to carry out their functions on other land. We consider that Gilbart J was correct in his assessment on this point. The issue of incompatibility has to be decided by reference to the statutory regime which is applicable and the statutory purposes for which the land is held, not by reference to how the land happens to be being used at any particular point in time (again, see Newhaven, para 96).

Paragraph67.

As Lady Arden and Lord Wilson take a different view regarding the effect of the majority judgment in Newhaven, we should briefly explain why, with respect, we are not persuaded by their judgments. We are all in agreement that the outcome of these appeals turns upon the proper interpretation of the majority judgment in Newhaven. We cannot accept their interpretation of that judgment.

Paragraph68.

In our view, although the case might have been decided on narrower grounds, Lord Neuberger and Lord Hodge deliberately posed the relevant question in para 93 in wide terms, specifically in order to state the issue as one of statutory incompatibility as a matter of principle, having regard to the proper interpretation of the relevant statute pursuant to which the land in question is held. That is why the heading for the relevant section of their judgment is “Statutory incompatibility: statutory construction”. They say in terms in para 93, “The question of incompatibility is one of statutory construction.” Nowhere do they say it is a matter of statutory construction and an evaluation of the facts regarding the use to which the land has been put. According to their judgment, the issue of incompatibility is to be determined as a matter of principle, by comparing the statutory purpose for which the land is held with the rights claimed pursuant to the 2006 Act, not by having regard to the actual use to which the authority had put the land thus far or is proposing to put it in future. We consider that this emerges from the critical para 93, and also from the paragraphs which follow in their judgment.

Paragraph69.

Thus, in para 94 they identify the relevant incompatibility as that between the 2006 Act and “the statutory regime which confers harbour powers on NPP to operate a working harbour”. In para 96, it is to that statutory incompatibility that they refer, not to incompatibility with any use to which NPP had as yet put the land in question or might in fact put it in the foreseeable future. As a matter of fact, the Beach had not been used for the applicable statutory purposes. Further, in our opinion, by stating in para 96 that it was not necessary for the parties to lead evidence as to NPP’s plans for the future of the harbour “in order to ascertain whether there is an incompatibility between the registration of the Beach as a town or village green and the use of the Harbour for the statutory purposes to which we have referred”, Lord Neuberger and Lord Hodge were seeking to emphasise, contrary to Lady Arden’s and Lord Wilson’s interpretation of their judgment, that what matters for statutory incompatibility to exist so as to prevent the application of the 2006 Act is a comparison with the relevant statutory powers under which the land is held, not any factual assessment of how the public authority might in fact be using or proposing to use the land.

Paragraph70.

The same point can be made about para 97, where Lord Neuberger and Lord Hodge said that it was unnecessary to consider evidence about actual proposed use of the land on the facts, since they were able to determine by looking at the statutory powers “that there is a clear incompatibility between NPP’s statutory functions in relation to the Harbour, which it continues to operate as a working harbour [ie to hold under the statutory powers referred to in para 94], and the registration of the Beach as a town or village green”. Their discussion at paras 98 to 100 of New Windsor, the Trap Grounds case and Lewis supports the same conclusion. In each of those cases the relevant land had been held for a very long period without actually being put to use which was inconsistent on the facts with use as a town or village green and without any proposal that it should be put to such use. The implication from what Lord Neuberger and Lord Hodge say about them is that if it had been shown that the land was held for specific statutory purposes which were incompatible with registration under the 2006 Act, that would have constituted statutory incompatibility which would have prevented registration. Their treatment of these cases cannot be reconciled with Lady Arden’s and Lord Wilson’s proposed interpretation of their judgment. We do not think that para 101 can be reconciled with that proposed interpretation either. In that paragraph Lord Neuberger and Lord Hodge contrast a case in which a public body might have statutory purposes to which it could in future appropriate the land (but has not yet done so) with the situation in Newhaven itself, where in the relevant period NPP held the Beach “for the statutory harbour purposes and as part of a working harbour” (ie under the statutory regime referred to in para 94). In our view they were there emphasising that what matters for a statutory incompatibility defence to arise is that the land in question should be held pursuant to statutory powers which are incompatible with registration as a town or village green. Nor, with respect, do we think that Lady Arden and Lord Wilson have offered any good answer to the points we have made at paras 61 to 64 above.

Paragraph71.

We also consider that the reading of Newhaven proposed by Lady Arden and Lord Wilson would undermine the very clear test which Lord Neuberger and Lord Hodge plainly intended to state. Instead of focusing on the question of the incompatibility of the statutory powers under which the relevant land is held, Lady Arden and Lord Wilson would introduce an additional factual inquiry into the actual use to which the authority is putting the land or proposes to put the land in the foreseeable future. Thus, Lady Arden and Lord Wilson would adopt from the English case of Westmorland [1958] AC 126a test of what use could reasonably be foreseen for the land in question, even though Lord Neuberger and Lord Hodge say nothing to support that in the relevant part of their judgment. They refer to both English and Scottish cases on prescriptive acquisition as being relevant to their assessment of the correct approach to be adopted in interpreting the 2006 Act, and in each case only by way of broad analogy, as they explain at para 91. The Scottish cases they cite do not employ any such test as in the Westmorland case and are consistent with the clear principled test, based on statutory construction, which we understand Lord Neuberger and Lord Hodge to have laid down.

Future use

Paragraph72.

Finally, for completeness, we should mention briefly an issue which does not strictly arise within the scope of the appeals, but has been the subject of some discussion. That is the question whether, notwithstanding registration, there might be scope for use by the appellants of the land for their statutory purposes. This arises from a suggestion put forward in Lord Carnwath’s minority judgment in Newhaven. He noted that in the Trap Grounds case it had not been necessary to consider the potential conflict between the general village green statutes and more specific statutory regimes, such as under the Harbours Acts. He said, at para 139:

“It is at least arguable in my view that registration should be confirmed if the necessary use is established, but with the consequence that the 19th century restrictions are imported subject only to the more specific statutory powers governing the operation of the harbour.”

Paragraph73.

Mr Edwards, supported by Mr Laurence, seeks to build on that tentative suggestion, taken with the principle of “equivalence” adopted in the Lewis case [2010] 2 AC 70. As he submits, the Supreme Court accepted that there should be equivalence between the use of the land for lawful sports and pastimes in the qualifying period (in that case subject to concurrent use as a golf course) and the extent of rights vested in local inhabitants after registration. That approach was taken a stage further by the Court of Appeal in TW Logistics Ltd v Essex County Council [2019] Ch 243, holding that the 19th century statutes, as applied to a registered modern green, are not to be construed as interfering with the rights of the landowner to continue pre-existing uses so far as not inconsistent with the uses which led to registration (per Lewison LJ, paras 63-82).

Paragraph74.

This is not a suitable occasion to examine the scope of the principle of equivalence, so far as it can be relied on to protect existing uses by the landowner. Lewis was a somewhat special case. Lord Brown was able to draw on “[his] own experience both as a golfer and a walker for over six decades” (para 106) to attest to the feasibility of an approach based on “give and take” in that particular context. The same approach may not be so easy to apply in other contexts, and as applied to other forms of competing use. Permission has been granted for an appeal to this court in TW Logistics. That may, if the appeal proceeds, provide an opportunity for further consideration of this difficult issue. In any event, those cases were concerned with actual uses by the owners, not with potential uses for statutory purposes for which the land is held, as in the present cases.

Paragraph75.

In view of our conclusion that the land in each appeal should not have been found to be capable of being registered under the Act, the issue of what uses might have been open to a statutory owner if it were so registered does not arise, and we prefer to say no more about it on this occasion.

Conclusion

Paragraph76.

For these reasons we would allow the appeals in both cases.

LADY ARDEN: (partly dissenting)

Identifying the difference of view

Paragraph77.

My views differ from those of Lord Carnwath and Lord Sales on these appeals in an important respect. My conclusion is that the question of incompatibility between two sets of statutory provisions (on this appeal, the provisions of the Commons Act 2006 (“the 2006 Act”) and the statute authorising the holding of land by the public authority in question) involves an assessment of the facts as well as a proposition of law. The fact that a public authority holds land for statutory purposes which are incompatible with the use of the land as a town or village green (“TVG”), is not of itself sufficient to make the land incapable of being registered under the 2006 Act as a TVG. It must be shown that the land is in fact also being used pursuant to those powers, or that it is reasonably foreseeable that it will be used pursuant to those powers, in a manner inconsistent with the public’s rights on registration as a TVG. That requirement in my judgment follows from R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] AC 1547. References in this judgment to public authorities exclude public authorities which are subject to a statutory duty to carry out a particular function on specified land, identified by statute, where such land is sought to be registered as a TVG. Such authorities are outside the scope of this judgment.

Identifying the correct approach to questions of statutory inconsistency

Paragraph78.

As a matter of constitutional principle, courts must approach the statute book on the basis that it forms a coherent whole. That means that, when interpreting legislation, courts must, in the absence of an indication of some other intention by Parliament, strive to ensure that the provisions work together and apply so far as possible to their fullest extent, such extent being judged according to the intention of Parliament demonstrated principally in the words used. (We have not been shown any other admissible evidence as to Parliament’s intention, such as ministerial statements in Hansard.) The courts cannot simply decline to enforce parts of a statute because there may be a conflict with some other statute. It has to be shown that the part sought to be disapplied is irreconcilable with another part of it. If the two can stand together there is no statutory irreconcilability or inconsistency: compare, for example, The Tabernacle Permanent Building Society v Knight [1892] AC 298. One statute cannot be said to be incompatible with another if the two statutes can properly be read together. So, the test is: can the two statutes in question properly be interpreted so that they stand together and each has the fullest operation in the sense given above?

Paragraph79.

In Newhaven, as I shall demonstrate by reference to the majority judgment in that case in the next section of this judgment, the point was that there was a risk that the statutory undertaking’s working harbour would be stymied in its operations if the Beach was held to be a TVG. It was not a case where a statutory authority has acquired land for a statutory purpose but, at the time of the proposed registration as a TVG, it is not likely that the land will be used for that purpose in the reasonably foreseeable future.

Newhaven and the limits of this Court’s decision in that case

Paragraph80.

The judgments in Newhaven in my judgment should be approached on the basis that they are consistent with the principles explained in para 78 above, even though the members of this Court in that case did not articulate them. This court should read their decision, if this can properly be done as a matter of statutory interpretation, as leading to the result that where public authority ownership of land and registration as a TVG can co-exist, that course will be available. As a matter again of constitutional principle, land should not be relieved of the burden of an Act of Parliament having (so far as relevant) unqualified application if there is an alternative, properly available interpretation which will lead to the two enactments in question standing together.

Paragraph81.

On timing, the question whether there is any conflict between public authority powers and TVG legislation must be determined as at the date when the application for registration is made. At that point in time, the public authority may be holding land it has acquired under statutory powers for a particular purpose for which it is not yet required. It is not required to apply the land for that purpose and it may decide not to do so and for example to sell the land or use it for some other purpose. Moreover, even while holding the land for a particular purpose, the local authority may be using it for another purpose because it is not required for the statutory purpose for which it is appropriated at that point in time (Local Government Act 1972, section 120(2)).

Paragraph82.

The factual scenario in Newhaven was different: the harbour company was already in operation and the beach was liable to be involved in its then current trading operations. The case shows that incompatibility is not a purely legal matter depending on the existence of statutory powers which if exercised would be inconsistent with use of the land as a TVG. It is necessary on the facts to be satisfied that that is likely to occur after registration. It requires a real-world assessment of the situation. The court is not precluded from looking at the facts subsequent to the acquisition of the land any more than the determination as to the reasonableness of a landlord’s refusal to give a consent under a lease is restricted to the facts known to the parties at the date of the lease (see Ashworth Frazer Ltd v Gloucester City Council [2001] 1 WLR 2180).

Interpreting the decision of this Court in Newhaven

Paragraph83.

In the Newhaven case, the harbour company (“NPP”) had a statutory duty to maintain a harbour. The dispute concerned a tidal beach in one part of the harbour which as it happened was no longer operational. The Beach had been used for the past 80 years or so by members of the locality. The issue with which these appeals are concerned is the issue in that case as to whether the Beach could be registered as a TVG. This court held that the land in issue, namely the Beach, could not be registered as a TVG.

Paragraph84.

In Newhaven, Lord Neuberger and Lord Hodge jointly gave the leading judgment. The other members of the Supreme Court agreed with them. Lord Carnwath also wrote a concurring judgment. On these appeals, Lord Carnwath and Lord Sales examine the leading judgment in detail. They conclude that Lord Neuberger and Lord Hodge held that, where a person applies to register as a TVG land which is held for statutory purposes which would be inconsistent with the land also being TVG, the land is not capable of being so registered, and that the question is purely one of statutory construction. Thus, Lord Neuberger and Lord Hodge formulated the relevant question as, at para 93:

“does section 15 of the 2006 Act apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green?”

Paragraph85.

Having stated that question, Lord Neuberger and Lord Hodge immediately answered it by the following sentence: “In our view it does not.” In that sentence, the word “it”, as I read it, refers to section 15 itself.

Paragraph86.

The next sentence in the judgment of Lord Neuberger and Lord Hodge states (also at para 93):

“Where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes.”

Paragraph87.

That sentence makes it clear that Lord Neuberger and Lord Hodge regarded “use” as a critical issue. That clearly involves fact. Moreover, the expression “continuing use” also makes it clear that they regarded the operations of NPP as constituting use which was being perpetuated and that that was so even though the tidal beach which was in issue was in a part of the harbour which was not itself being used.

Paragraph88.

It is further clear from that sentence, in my judgment, that the Supreme Court was not considering the question what would happen if the relevant use had never started or if the relevant land had become surplus to the obligation or power to carry out any particular activity which had been imposed by Parliament. We have not been shown any statutory requirement that a public authority should regularly consider the need for any land and if thought fit dispose of land which is not required for some purpose for which it was acquired, so it may end up holding land for which it has no further need.

Paragraph89.

The local authority could voluntarily appropriate the land to some other purpose but, if it fails to reconsider the use for which it acquired land, or appropriates it to some other use, it is likely that the only basis on which the local authority’s decision or omission to act could be challenged would be on the basis that its decision attained the standard of irrationality, which is a high standard for an applicant to have to meet. Under the judgment of Lord Carnwath and Lord Sales, that land would remain immune from the accrual of rights leading to registration as a TVG even though there would not in fact be any irreconcilability between registration and the statutory power for which the land was conferred. It is not clear what on this basis would happen if the local authority accepts that the original purpose is spent and after the application is made decides to appropriate the land to some other statutory purpose.

Paragraph90.

Furthermore, in Newhaven, para 96, Lord Neuberger and Lord Hodge held:

“96.

Paragraph91.

It follows that they regarded it as important that the harbour in question was a “working harbour” and that there was a risk of a clash between the registration of the Beach and the use of the harbour for the statutory purposes. They considered that registration would inhibit the use of the adjoining quay to moor vessels. It would prevent the harbour authority from dredging the harbour in a way which affected the enjoyment of the Beach and restrict its ability to alter the existing breakwater. So, I deduce from that paragraph that Lord Neuberger and Lord Hodge also regarded it as important that there was factual evidence establishing the continuing use and the impact of registration on that use. There had to be real, not theoretical, incompatibility.

Paragraph92.

Lord Neuberger and Lord Hodge continue at the end of that paragraph to observe:

“All this is apparent without the leading of further evidence.”

Paragraph93.

The word “further” confirms that the preceding analysis involved a consideration of the evidence on the ground. In fact the further evidence appears to have been evidence as to plans to upgrade the harbour and use it as a container terminal: see the judgment of Ouseley J in R (Newhaven Port & Properties Ltd) v East Sussex County Council [2012] 3 WLR 709, para 127.

Paragraph94.

In para 97, Lord Neuberger and Lord Hodge continue by summarising further matters on which the harbour company relied, but it was not necessary in the light of the conclusion in para 96 to consider those matters. It is to be noted that in para 97, Lord Neuberger and Lord Hodge refer to an incompatibility between the proposed TVG registration and the statutory functions of NPP, which they add:

“continues to operate as a working harbour”

This is an express reference to the state of fact. It would clearly have been material if the harbour company held the land but had ceased its statutory functions.

Paragraph95.

In paras 98 to 101, Lord Neuberger and Lord Hodge refer to previous leading cases to show that the question of statutory incompatibility had not previously had to be considered. But, importantly for my interpretation, they conclude that (at para 100):

“It was not asserted that the council had acquired and held the land for a specific statutory purpose which would be likely to be impeded if the land were to be registered as a town or village green.”

So, in a case concerned with future use, the court must consider if the statutory purpose would be “likely” to be impeded, not likely to be impeded if invoked. Lord Neuberger and Lord Hodge clearly envisaged that there would have to be a factual inquiry as to future use and that it would have to be shown that TVG registration would be likely to impede the exercise of those powers. Lack of impediment can logically be shown either by showing that the local authority has acquired the land for purposes (eg recreational purposes) which are not inconsistent with registration as a TVG, or by showing that there is no realistic likelihood of the land being used for the purposes for which it was acquired.

Paragraph96.

In addition, at para 101 of their judgment, Lord Neuberger and Lord Hodge held:

Paragraph97.

In that paragraph, Lord Neuberger and Lord Hodge addressed the question of a future development of the land. The mere power to undertake such development would not itself be sufficient to create a statutory incompatibility. They contrasted that with the position in the Newhaven case. Lord Neuberger and Lord Hodge again referred to the evidence that the tidal beach was part of the working harbour.

Paragraph98.

Paragraph 102 dealt with the separate issue of user as of right and para 103 was the summary of the conclusion, which does not take the matter further.

Paragraph99.

For the avoidance of doubt, I agree that this court should apply statutory incompatibility, the concept sought to be employed in Newhaven, to determine the question of inconsistency between the provisions of the 2006 Act enabling registration of land in issue on these appeals as TVGs and the statutory provisions, also conferred by public general Acts of Parliament, empowering the acquisition and holding of land by the public authorities in both appeals. However, in my judgment, that concept is as a matter of constitutional principle to be interpreted as I have explained in para 78 above.

Determination of incompatibility where the issue arises from a future use

Paragraph100.

The use relied on by the local authority in the Lancashire case in relation to Areas A and B is, as in Newhaven, a current use, and my analysis of Newhaven detailed above does not lead to any different conclusion in relation to those Areas from that reached by Lord Carnwath and Lord Sales. I would accept the submission of Mr Douglas Edwards QC, for Lancashire County Council, that in practice the land could not be used by the primary school currently using it when there was unrestricted public access as this would not be consistent with the school’s safeguarding obligations: this may be inferred from the fact that the site is currently fenced. Schools are responsible for creating and maintaining a safe environment for their pupils. Mr Edwards’ submission on this point was not challenged on these appeals.

Paragraph101.

However, as I shall next explain, where the use is only a use which may occur in the future, my analysis makes it necessary to answer further questions before any conclusion about statutory incompatibility can be reached.

Paragraph102.

This has a practical impact in relation to Areas C and D in the Lancashire case. Those Areas have never been used for the statutory purpose of education for which they were acquired and are now held.

Paragraph103.

That raises the question, what test should apply if the case is only one of possible future use? Must it be shown that it is simply possible that the land may be used for the statutory purpose or must it be shown that it is reasonably likely or foreseeable that it will be so used? These questions did not directly arise in Newhaven.

Paragraph104.

In answering these questions, I have found assistance in the decision of the House of Lords in British Transport Commission v Westmorland County Council [1958] AC 126, in which a railway company contended that it would have been inconsistent with the statutory powers conferred on it for the public to have a right of way over a bridge spanning the railway line (originally built for private benefit) and that accordingly its predecessor (another statutory company) could not have dedicated it to the public. In Newhaven, Lord Neuberger and Lord Hodge cited the judgment of Lord Keith of Avonholm in this case as authority for the proposition that incompatibility with an Act of Parliament is a question of fact, at para 87:

“In British Transport Commission [1958] AC 126, 164-165 Lord Keith of Avonholm commented on Lord Kinnear’s opinion in Magistrates of Edinburgh, suggesting that it would be going too far to hold that the public could never acquire a right of way over railway property but acknowledging that incompatibility with the conduct of traffic on the railway could bar a public right of passage. He opined at p 166, that incompatibility was a question of fact and that it was for the statutory undertaker to prove incompatibility.”

Paragraph105.

The other members of the House also treated it as a question of fact (see Viscount Simonds at p 144, Lord Morton of Henryton at p 149, Lord Radcliffe at p 156, Lord Cohen at p 163 and Lord Keith at p 166). Moreover, they held that, to show compatibility, it was not necessary to show that there were no circumstances in which a conflict could arise. That would make it impossible for members of the public ever to acquire a public right of way over land belonging to the railway company. The House also rejected the argument that a statutory company could not grant an easement over a footpath over its railway. To hold otherwise “would be a grave impediment to public amenity” (per Lord Radcliffe at p 153). It was unlikely on the facts that the railway company would ever need to pull the bridge down.

Paragraph106.

The relevant question was whether a conflict, or incompatibility, was reasonably foreseeable. Thus, Viscount Simonds (at p 144), Lord Morton (at p 149) and Lord Keith (see p 166) rejected the following test: was it possible that land would be used in future for a certain purpose? They considered that the normal statutory burden should apply and be discharged, namely that it should be shown that the use was reasonably likely to occur.

Paragraph107.

The House considered the question on a current basis and did not decide whether the critical time was the date of dedication or some other date (see for example pp 144-145). At all events it did not seek to determine the question as at the date of the incorporation of the statutory company when its statutory powers were conferred.

Paragraph108.

In my judgment, the test of reasonable foreseeability is the correct test also to apply in this context, ie when asking whether there is incompatibility between registration of land as a TVG and the statutory powers of a public authority in relation to the same land where the relevant use that the public authority might make of the land under those powers is a potential future use which has not yet started.

Paragraph109.

It is said by Lord Carnwath and Lord Sales that this test is not clear. It may not be easy to apply on the facts but that is necessarily so if the law applies a solution which is fact-dependent rather than drawing a bright line as the majority does. Lord Neuberger and Lord Hodge refer to the Westmorland case at two points in their judgment. In the light of their conclusion that the evidence as to current use was sufficient it was not necessary for them to consider it in any further detail, but they would not have cited it if they did not approve of its approach. If I am right there is no question of the use of land being stymied by the 2006 Act (cf para 61 above). Circumstances may have moved on and the public authority may no longer require the land it is holding for any particular statutory purpose.

Application of the principles to the facts of the appeals

Paragraph(1)

The Lancashire appeal

Paragraph110.

The issue of future use of the land arises on the Lancashire appeal in relation to Areas C and D. The local authority in the Lancashire appeal did not adduce evidence that it was reasonably likely that these Areas would be used for educational purposes in the future. There had in the past been a plan to relocate a school on this area but that was not proceeded with and there was no substitute. Moreover, those Areas had never been used for educational purposes. Accordingly, as I see it, those plots should have been registered as a village green. The only objection to doing so was one of statutory incompatibility and as I see it, that fails on the facts.

Paragraph111.

The position is different in relation to Areas A and B which are currently used for educational purposes. Importantly, as I read the facts, the sites cannot be registered as TVGs and be school playgrounds at the same time for the reason that this would be inconsistent with the school’s safeguarding duty. The school has an obligation to provide outdoor space as a playground under regulation 10 of the School Premises (England) Regulations 2012, and that is its current use. The inspector did not reach any conclusion on the question of the compatibility in fact of the current use of Areas A and B with their registration as TVGs, and she expressly left open the door to further evidence on incompatibility.

Paragraph(2)

The Surrey appeal

Paragraph112.

In the Surrey appeal, the result is different because the site in issue lies immediately next to the hospital. On the basis of my judgment, the correct legal test applying to future use was not applied. There have been no findings of fact as to whether it is reasonably foreseeable that even now the land will be used for the statutory purposes for which it is currently held. In those circumstances, in my judgment, this matter should be remitted to the registration authority for a decision on that issue.

Restrictions on TVG registration in the Growth and Infrastructure Act 2013

Paragraph113.

Lord Carnwath and Lord Sales begin their judgment with an analysis of the development of the law on TVGs since the report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd 462), chaired by Sir Ivor Jennings QC, which led to the Commons Registration Act 1965. Undoubtedly that Act and its successor, the 2006 Act, have led to the registration of TVGs at a more significant level than can have been envisaged by the Royal Commission.

Paragraph114.

Accordingly, it is now an inescapable fact that the actual use of the TVG legislation has, in the light of practical experience and the needs and expectations of local communities up and down the country, eclipsed the original conception of a more limited role for TVG registration. The clock cannot be turned back.

Paragraph115.

Moreover, Parliament has essentially given its approval to that use in later legislation. The Growth and Infrastructure Act 2013 (“the 2013 Act”) introduced a package of measures designed to restore the balance between the public and landowners but retaining the same basic system of registration.

Paragraph116.

The three main changes brought about by the 2013 Act in this connection can be summarised, and it will be seen that they were substantial:

(1)

The period within which a person may apply to register land as a TVG after the landowner has terminated the use by members of the public without permission has been reduced from three years to one year (2006 Act, section 15(3A) as amended).

(2) The 2013 Act has inserted a new section 15C into the 2006 Act terminating the public’s right to apply to register land as a town or village green after any one of a range of “trigger events” occurs. These include an application for planning permission. The right to apply for registration as a TVG will arise again if a “terminating event” occurs, namely (in the case of an application for planning permission) the planning application is withdrawn, is refused or expires, or the local planning authority (“LPA”) does not determine it. (Where the planning application is for a project of public importance under section 293A of the Town and Country Planning Act 1990, the right to make an application to register as a TVG does not arise where the LPA declines to determine it.)

Paragraph(3)

Landowners have a new right to deposit statements with the appropriate registration authority with respect to any land and this will have the effect of terminating any existing or accruing rights to register that land as a TVG (2006 Act, section 15A, as amended). Landowners already had a right to apply to deregister land as a TVG, but comparable land must be offered in exchange (2006 Act, section 16).

Paragraph117.

Lord Carnwath and Lord Sales are right to say that these changes are not directly relevant, and there is no information about any fall in the number of TVG registrations. However, these changes are important. It is open to public authorities to take advantage of these changes (and this is my core answer to the points that Lord Carnwath and Lord Sales make in para 64 above). They show, among other matters, that Parliament did not consider that there should be some special exemption applying in respect of all publicly-held land. That may be a recognition of the fact that public bodies may be holding land which is surplus to their statutory requirements. While many statutes confer a power on statutory bodies to acquire and hold land, we have not been shown any provision requiring the body on which the power is conferred to sell it when it becomes clear that the land is not required or is no longer required for the purpose for which it was acquired. If a public authority took no action to dispose of land it did not need, it might well be difficult to obtain judicial review of its action as irrationality may have to be shown.

Paragraph118.

Moreover, Parliament took no steps in the 2013 Act to revise the conditions for registration for TVGs.

Judgment of Lord Wilson

Paragraph119.

Since circulating the first draft of my judgment I have had the benefit of reading the judgment of Lord Wilson. He agrees with the approach of the Court of Appeal [2018] 2 P & CR 15. I have great admiration for his judgment and that of Lindblom LJ, with which Jackson and Thirlwall LJJ agreed. In particular, I agree with the three general points made by Lindblom LJ in para 36 of his judgment. In a sense my approach might be described as a halfway house between their judgments and that of Lord Carnwath and Lord Sales. The ten judges who have considered the issues on these appeals have unfortunately been very divided. For my own part, I do not consider that the view of the Court of Appeal addresses the effect on incompatibility of the possibility of future use of the sites sought to be registered as TVGs, or the intention of Parliament in such cases. However, if I am wrong on the approach I have taken, I would adopt that of Lord Wilson and the Court of Appeal in preference to that of Lord Carnwath and Lord Sales. Respectfully, their approach results in introducing into the legislation a blanket exemption for public authorities which Parliament has not itself expressly given. Parliament has instead provided all landowners with other measures which they can use to protect their position for the future.

Paragraph120.

Limiting the issue of incompatibility to a “desktop” exercise of considering the statutory powers of the landowner, without reference to the facts on the ground, runs the risk, to borrow Lord Radcliffe’s words in British Transport Commission at p 153, of “a grave impediment to public amenity.” There will potentially be a loss of access by the public to land which they have used for very many years.

Conclusion

Paragraph121.

My approach to statutory incompatibility in my judgment strikes a fairer balance between the public interest in the use of land by the public authority for the appropriated statutory purpose and that of the public who are intended by the 2006 Act to have a right of access to recreational spaces than the approach of Lord Carnwath and Lord Sales. That is my principal answer to the points which they make in paras 61 to 64 and 67 to 71 above and my other responses to those paragraphs appear from this judgment. My judgment does not as suggested in any way involve frustrating the intention of Parliament since the statutory powers under which the public authority holds the land will prevail if it is shown that there is a current use of the land in exercise of those powers, or that it is reasonably foreseeable that such use will occur (se para 77 above).

Paragraph122.

Accordingly, I would hold that the appeal in Lancashire should be allowed in part and that in Surrey the appeal should also be allowed on the basis that the matter remitted to the registration authority for a determination of the application in accordance with this judgment.

LORD WILSON: (dissenting)

Paragraph123.

I would have dismissed both appeals.

Paragraph124.

Although I hold each of my three colleagues in the majority in the highest esteem, I am driven to suggest that today they make a substantial inroad into the ostensible reach of a statutory provision with inadequate justification.

Paragraph125.

It is agreed that, in their capacity as education authorities, local authorities, such as the appellant in the Lancashire case, can hold land only for specified statutory purposes referable to education; that health authorities, such as the appellant in the Surrey case, can hold land only for specified statutory purposes referable to health; and that, for example, in their capacity as housing authorities, local authorities can hold land only for specified statutory purposes referable to housing.

Paragraph126.

If public authorities which hold land for specified statutory purposes are to be immune from any registration of it as a green which would be theoretically incompatible with their purposes, the reach of section 15 of the Commons Act 2006 Act is substantially reduced. One would expect that, had such been its intention, Parliament would have so provided within the section. In the absence of any such provision, whence does justification for it come?

Paragraph127.

It comes, according to today’s ruling, from the decision of this court in the Newhaven case, cited in para 1 above, from which the court would in any event be able to depart if necessary. In my view interpretation of that decision by today’s majority is controversial. The claim in para 11 above that their interpretation represents no more than consolidation of the law is unfortunately not one to which I can subscribe.

Paragraph128.

The decision in the Newhaven case wrought an exception to the availability of registration under section 15. It is always dangerous to interpret an exception too widely lest it becomes in effect the rule and the rule becomes in effect the exception.

Paragraph129.

In the Newhaven case statutes had cast upon the harbour authority, as the owner/operator of the port, specific duties in relation to that particular harbour; and the operational land of that harbour included that particular beach. An Act of 1847 obliged the authority to maintain and support that harbour. An Act of 1878 obliged it to keep that harbour open to all for the shipping and unshipping of goods and the embarking and landing of passengers. Incidental to these obligations were statutory powers, including one in an instrument of 1991 to dredge the foreshore of that harbour. Were it to exercise its power to dredge the area of the foreshore to the east of the breakwater, the authority would destroy the beach.

Paragraph130.

It is therefore no surprise to read within the joint judgment of Lord Neuberger and Lord Hodge emphasis on the statutory duties cast upon the authority in relation to that particular harbour; no surprise that, in the opening paragraph they described the relevant point of principle as “the interrelationship of the statutory law relating to village greens and other duties imposed by statute” (emphasis supplied); and no surprise that, at the outset of the crucial paragraph (namely para 93, set out in para 48 above), in which they set out their reason for allowing the appeal on the relevant point, they stated:

“The question of incompatibility is one of statutory construction.”

Paragraph131.

What did Lord Neuberger and Lord Hodge mean by “statutory construction”? They meant conflict between two statutory regimes. They explained in the same paragraph that, where such conflict existed,

“… some assistance may be obtained from the rule that a general provision does not derogate from a special one …, which is set out in … Bennion, Statutory Interpretation, 6th ed (2013), p 281:

In the next paragraph they proceeded to explain that the specific duties conferred by statutes on the authority in relation to that harbour were incompatible with the general provision in the 2006 Act which, on the face of it, permitted registration of the beach as a green and that therefore the general provision had to give way.

Paragraph132.

By contrast, statutory provisions which confer power to acquire and hold land, not there identified, for educational and health purposes, such as are in play in the present appeals, cannot be said to be incompatible with the general provision in the 2006 Act which, on the face of it, permits registration of the respective parcels of land as greens.

Paragraph133.

No reason for the disapplication of section 15 of the 2006 Act is advanced other than the alleged effect of the decision in the Newhaven case. It is in the light of the above circumstances that I would have dismissed the appeals.

Paragraph134.

Let me, however, suppose that my understanding of the decision in the Newhaven case is flawed; and that, had I better understood it, its reasoning would extend to the facts in these appeals.

Paragraph135.

Even in those circumstances the majority falls, so I venture to suggest, into error.

Paragraph136.

In The King v The Inhabitants of Leake (1833) 5 B and Ad 469 the issue was whether villagers in the fenlands were obliged to repair a road. If it had been dedicated as a public highway, they were obliged to do so. The land on which the road had been constructed was owned by commissioners who had bought it pursuant to statutory powers to drain specified fens and to keep them drained. They had constructed drains on it and, with the excavated earth, had built a wide bank which the villagers had used as a highway for more than 20 years. In the Court of King’s Bench the villagers contended that any dedication by the commissioners of the road as a public highway would have been inconsistent with their powers. On behalf of the majority Parke J, later Lord Wensleydale, made clear that the contention should be addressed by means of a practical inquiry on the ground. He said at p 480:

“The question then is reduced to this, whether, upon the finding of the jury in this case, the public use of the bank as a road would interfere with the exercise of these powers?”

The answer was no.

Paragraph137.

The Leake case demonstrates that for almost 200 years the law of England and Wales in relation to the capacity of a public authority to dedicate its land as a public highway, or indeed as a public footpath, has been to assess its alleged incompatibility with the statutory purposes for which the land is held on a practical, rather than a theoretical, basis.

Paragraph138.

Such is made clear in the Opinions of the appellate committee of the House of Lords in British Transport Commission vWestmorland County Council [1958] AC 126, cited in para 71 above. A railway company was authorised by statute to buy land in Kendal for the purposes of operating a railway and to build bridges across it where necessary. On one of its bridges it built a footpath, which the public had used for more than 20 years. The question was whether, in the light of the limited statutory purposes for which it could hold land, the company could have dedicated the footpath as a public highway. Applying the Leake case, the appellate committee held that the answer was to be found by determining whether the use of the footpath by the public was incompatible with the statutory purposes; that incompatibility was a question of fact (p 143); that the test was pragmatic (p 152); that the question was not whether it was conceivable but whether it was reasonably foreseeable that the public use of the footpath would interfere with the company’s use of its land in the exercise of its powers for the statutory purposes (p 144); that the burden lay on the company to establish that it was reasonably foreseeable (p 166); and that, by reference to the case stated by the local justices, the company failed to discharge that burden.

Paragraph139.

In para 78 of their judgment in the Newhaven case Lord Neuberger and Lord Hodge explained the decision in the Westmorland case. In paras 77 and 91 they stressed that, like other decisions which they examined and which related to the acquisition of prescriptive rights under English and Scots law, the decision applied only by analogy to the statutory registration of a green on land owned pursuant to statutory purposes.

Paragraph140.

Nevertheless, in a case in which the objection to registration as a green is cast as incompatibility with statutory purposes, there is in my view every reason to assess incompatibility in accordance with the approach adopted in the Leake case and indorsed in the Westmorland case.

Paragraph141.

I am convinced that in the Newhaven case such was also the view of Lord Neuberger and Lord Hodge, and indeed of Lady Hale and Lord Sumption who agreed with them. I refer to four passages in the joint judgment.

Paragraph142.

First, from para 91:

“It is … significant in our view that historically in both English law and Scots law, albeit for different reasons, the passage of time would not give rise to prescriptive acquisition against a public authority, which had acquired land for specified statutory purposes and continued to carry out those purposes, where the user founded on would be incompatible with those purposes.” (Emphasis supplied)

Paragraph143.

Second, from the crucial para 93:

“Where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes.” (Emphasis supplied)

Paragraph144.

Third, the whole of para 96:

“In this case, which concerns a working harbour, it is not necessary for the parties to lead evidence as to [the authority’s] plans for the future of the Harbour in order to ascertain whether there is an incompatibility between the registration of the Beach as a town or village green and the use of the Harbour for the statutory purposes to which we have referred. Such registration would clearly impede the use of the adjoining quay to moor vessels. It would prevent the Harbour authority from dredging the Harbour in a way which affected the enjoyment of the Beach. It might also restrict [the authority’s] ability to alter the existing breakwater. All this is apparent without the leading of further evidence.”

Paragraph145.

And fourth, from para 101:

“The ownership of land by a public body … which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility. By contrast, in the present case the statutory harbour authority throughout the period of public user of the Beach held the Harbour land for the statutory harbour purposes and as part of a working harbour.” (Emphasis supplied)

Paragraph146.

It thus seems clear from the Newhaven case that registration of the beach as a green was there precluded as incompatible with the existing use of the land as a working harbour; and that, in the absence of existing use of the land, the public authority needs to adduce evidence. What evidence? Evidence which makes it reasonably foreseeable that public use of the land as a green would in practice interfere with a proposed exercise of the authority’s powers in relation to the land for the statutory purposes.

Paragraph147.

It follows that I respectfully disagree with the suggestion in paras 65 and 66 of the judgment of Lord Carnwath and Lord Sales that incompatibility with statutory purposes should be assessed as a theoretical exercise rather than by means of a practical inquiry into interference with the authority’s existing or proposed future use of the land.

Paragraph148.

Adopting what I believe to be the correct, practical, approach to the assessment of incompatibility in relation to the present appeals, I agree with the Court of Appeal that neither the education authority nor the health authority has established that public use of its land as a registered green would be likely to be incompatible with its use of it pursuant to its statutory powers. In the Lancashire case the Inspector conducted the requisite practical assessment, which led her to reject the alleged incompatibility; and, like the Court of Appeal, Ouseley J in the Administrative Court found no fault with her reasoning. I discern no ground upon which this court might have concluded otherwise. In the Surrey case the Inspector, while recommending refusal of the application for a different reason later shown to be invalid, also rejected the alleged incompatibility on apparently practical grounds; and the error of law which Gilbart J in the Administrative Court perceived him to have made in assessing it practically rather than as a matter of statutory construction was in my view correctly held by the Court of Appeal to have been no error at all.

Paragraph149.

It was with complete passivity that, for no less than 20 years, these two public authorities contemplated the recreational use of their land on the part of the public. Their simple erection at some stage during that period of signs permitting (or for that matter prohibiting) public use would have prevented such use of the land being as of right: Winterburn v Bennett [2016] EWCA Civ 482, [2017] 1 WLR 646. In such circumstances it is hardly surprising that they both failed to establish its practical incompatibility with their own proposed use of it.

Case No: B2/2013/3733

Neutral Citation Number: [2014] EWCA Civ 1383

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

His Honour Judge Hornby

3CL40062

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday 22^nd October 2014

Before :

LORD JUSTICE MOORE-BICK

(Vice-President of the Court of Appeal, Civil Division)

LADY JUSTICE BLACK

and

LORD JUSTICE VOS

Between :

TITINA NZOLAMESO

Appellant

- and -

CITY OF WESTMINSTER

Respondent

(Transcript of the Handed Down Judgment of

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Mr. Jan Luba Q.C. and Mr. Lindsay Johnson (instructed by Hodge Jones & Allen) for the appellant

Mr. Ian Peacock (instructed by City of Westminster Legal Services) for the respondent

Hearing date : 29^th September 2014

Judgment

Lord Justice Moore-Bick :

Introduction

This appeal raises some interesting and important questions concerning the powers of local housing authorities to provide accommodation outside their own districts for those to whom they owe a housing duty. Until November 2012 the appellant, Ms. Nzolameso, lived in a four bedroom house in Westminster, the rent for which was covered by housing benefit in the form of local housing allowance. Following the reduction in 2012 of the amount of housing benefit, Ms. Nzolameso became unable to afford the rent on her existing property and as a result she and her five children became homeless. The respondent, the City of Westminster (“Westminster”), accepted that it owed her the main housing duty under section 193 of the Housing Act 1996 (“the Act”) and offered her temporary accommodation in the form of a five bedroom house in Bletchley, near Milton Keynes. Ms Nzolameso refused that offer. She had lived in Westminster for over four years and had many friends who provided her with emotional and practical support, in particular with looking after her children. She said that the house in Bletchley was too far from her children’s schools and that she did not know anyone in the area who would give her the same support as her friends in Westminster. As a result of her rejection of the offer of what it considered to be a suitable property, Westminster decided that it had discharged its duty towards Ms Nzolameso and was no longer under a duty to make accommodation available to her.

Ms Nzolameso asked for a review both of the decision that the house at Bletchley was suitable for her and of the decision that Westminster had discharged its duty to provide her with accommodation. A review was carried out, but the reviewing officer upheld both decisions. Ms Nzolameso appealed against those decisions under section 204 of the Act and thus the matter came before His Honour Judge Hornby in the Central London County Court. The judge expressed a good deal of sympathy for Ms Nzolameso, but he upheld the decision of the reviewing officer and dismissed the appeal. This is her appeal against that decision.

The legislative background

Mr. Luba Q.C. for Ms Nzolameso placed a good deal of weight on the legislative background and it is therefore necessary to refer to some of it in detail. The following provisions of the Act are of particular relevance:

“193.— Duty to persons with priority need who are not homeless intentionally

(1)

This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.

(2)

Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

. . .

(5)

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.

. . .

198.—Referral of case to another local housing authority

(1)

Ifthe local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.

(2)

The conditions for referral of the case to another authority are met if—

(a)

neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,

(b)

the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and

(c)

neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.

202.— Right to request review of decision

(1)

An applicant has the right to request a review of—

. . .

(b)

any decision of a local housing authority as to what duty (if any) is owed to him under [sections 193 and 196 ],

. . .

(f)

any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) . . .

. . .

206.— Dischargeof functions by local housing authorities

(1)

Alocal housing authority may discharge their housing functions under this Part only in the following ways—

(a)

bysecuring that suitable accommodation provided by them is available,

(b)

by securing that he obtains suitable accommodation from some other person,

. . .

208.— Dischargeof functions: out-of-area placements

(1)

So far asreasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district.”

Section 182 of the Act requires local housing authorities, in the exercise of their functions relating to homelessness, to have regard to such guidance as may be given by the Secretary of State from time to time. The relevant guidance for present purposes is contained in the Homelessness Code of Guidance for Local Authorities (2006) (“the Code”). Paragraphs 16.7 to 16.9 of the Code provide guidance on compliance with the duty imposed by section 208 of the Act. They provide that housing authorities should aim to provide accommodation within their own districts wherever possible, unless there are clear benefits to a particular applicant of being accommodated elsewhere, and that those who have a need to maintain links with essential services should be given priority. The Code also recognises in paragraph 17.41 that the location of accommodation will have a bearing on its suitability for the different members of the household, all of whose interests have to be taken into account, and that housing authorities should secure accommodation as close as possible to where applicants were previously living.

Supplementary Guidance was issued in 2012 in relation to compliance with the requirements of the Homelessness (Suitability of Accommodation) (England) Order 2012 (“the Supplementary Guidance”). Paragraph 48 of that guidance provides as follows:

“Where it is not possible to secure accommodation within district and an authority has secured accommodation outside their district, the authority is required to take into account the distance of that accommodation from the district of the authority. Where accommodation which is otherwise suitable and affordable is available nearer to the authority’s district than the accommodation which it has secured, the accommodation which it has secured is not likely to be suitable unless the authority has a justifiable reason or the applicant has specified a preference.”

The reviewing officer’s decision

In her decision letter the reviewing officer confirmed that she had considered all the relevant information, including the reasons given by Ms Nzolameso for rejecting the property, information from her GP and the information contained in the housing file. She noted that the house in Bletchley was suitable for seven people and therefore large enough to accommodate the whole of Ms Nzolameso’s family. She referred to Ms Nzolameso’s medical condition and gave detailed consideration to the support she was currently receiving from her close friends, especially in relation to looking after the children. She concluded that it would have been possible for the children to move schools and for Ms Nzolameso herself to obtain medical treatment and care from a doctor in Bletchley. She considered that Ms Nzolameso could maintain contact with her friends in Westminster without too much difficulty and that she could make new friends who would provide her with the emotional and practical support she needed. She then said:

“As you are aware, Westminster is currently suffering from a severe shortage of both temporary and permanent accommodation. It is therefore not reasonably practicable to offer temporary accommodation in the borough for everyone who applies for it and therefore we have to offer some people temporary accommodation located outside Westminster. The Council’s Temporary Lettings team carefully assesses each application based on the individual circumstances of each household member and decides what type of accommodation would be suitable for the household. Given the shortage of housing in Westminster and all of your circumstances, including those above, I believe that it was reasonable for the Council to offer your household this accommodation outside the Westminster area.”

Before the judge, counsel for Ms Nzolameso (who did not appear on the appeal) submitted that Westminster had failed to examine all the housing that was, or might be, available to see whether it could provide accommodation either within its own district or somewhere closer than Bletchley and that the decision to offer accommodation there was unreasonable in the Wednesbury sense. The judge rejected both arguments. He held that, although the decision letter contained no express reference to the availability of accommodation nearer to Westminster than Bletchley, the team must have had regard to all the stock available to it before allocating to Ms Nzolameso a property that was suitable to her needs.

Before us Mr. Luba Q.C. developed submissions similar to those that had been advanced below. He submitted that the effect of section 193 of the Act was to impose on the local housing authority a duty of a personal nature towards one who fell within its scope (as it is accepted Ms Nzolameso did). Accordingly, at the date on which an offer of temporary accommodation was made, section 208, read in the light of paragraph 48 of the Supplementary Guidance, imposed a duty on Westminster to offer her, in so far as reasonably practicable, accommodation within its own district or as close as reasonably practicable to it. That required the Temporary Lettings team to examine the accommodation available to it on that day and to offer to Ms Nzolameso any suitable property that was then available in Westminster, or, if no suitable property was or could be made available in Westminster itself, the nearest suitable property available outside its own district. He submitted that in discharging that duty Westminster was bound to consider not only the housing available within its own stock but also housing available to it from other sources, including the open market. In his submission, the expression “insofar as reasonably practicable” in section 208 had to be read in the context of the personal duty owed to the applicant; it did not allow the authority to take into account broader considerations, such as financial pressures, administrative difficulties or the imminent likelihood of a need to provide accommodation to others whose particular circumstances might give rise to a more pressing need for them to remain in or closer to its own district. The error in the reviewing officer’s decision was to ask the wrong question. Instead of asking herself whether it was reasonably practicable for Westminster to offer Ms Nzolameso accommodation within its own district, she had asked herself whether it was reasonable in all the circumstances for it to have offered her accommodation outside its own district.

Mr. Ian Peacock for Westminster pointed out that section 202 of the Act does not create a general right of review but only a right to challenge specific kinds of decision, in this case the decisions that the accommodation in Bletchley was suitable and that Ms Nzolameso’s rejection of it had discharged Westminster’s duty to her. Section 208 was relevant only to the extent that compliance with it had a bearing on whether the property in Bletchley was suitable to her needs. He submitted that the resources, both human and financial, available to Westminster did not enable it to carry out the kind of search that Mr. Luba described for the benefit of each person to whom it owed a duty under section 193. He submitted that the words “in so far as reasonably practicable” in section 208(1) were apt to encompass a much broader range of circumstances than the mere immediate availability of a suitable property at the time of the offer. The factors to which the reviewing officer had referred in the passage in her decision letter cited earlier were factors which it was proper to take into account when deciding whether it was reasonably practicable for Westminster to offer Ms Nzolameso accommodation in, or nearer to, its own area.

It is, of course, correct, as Mr. Luba pointed out, that section 198 of the Act enables a local housing authority to refer to another authority an applicant who has a closer connection to it, but that does not, in my view, have any bearing on the meaning or effect of section 208. If an applicant is referred to another authority under section 198, it is that other authority which will incur any duty under section 193 and will become responsible for making accommodation available. Moreover, it will be obliged to do so from its own resources. The fact that it is possible for a limited class of homeless persons to be transferred to other authorities in that way is not an indication that local housing authorities should not provide accommodation outside their own districts to homeless persons when circumstances make that necessary. In my view it is too simplistic to say, as Mr. Luba did, that the purpose of section 208 is to prevent local housing authorities from exporting homeless people to other areas. It is true that, if a local housing authority provides accommodation outside its own area, one consequence will be to impose on another local authority additional costs in relation to the provision of services and that may be one of the reasons why section 208 was enacted: see R (Sacupima and others) v Newham London Borough Council [2001] 1 W.L.R. 563 at page 575H per Latham L.J. I am inclined to think that another purpose was to ensure that homeless people are provided with accommodation in the places where they have previously been living and have established contacts. However, Parliament has recognised that many housing authorities face severe practical difficulties in providing accommodation within their own districts. Accordingly, although the section reflects a desire to ensure that the homeless are accommodated within the local authority area in which they have been living, it recognises by its very terms that authorities cannot always achieve that objective. The question raised by this appeal is what factors can properly be taken into consideration by a local housing authority when deciding whether it is reasonably practicable to accommodate a particular homeless person within its own district, bearing in mind that, as in the present case, the accommodation may be of no more than a temporary nature.

Section 208

In R (Sacupima and others) v Newham London Borough Council the council as the local housing authority had offered the applicants temporary accommodation outside its own area which they did not consider suitable to their needs. The council maintained that the demand for council accommodation far exceeded supply and the needs of many other homeless people were greater than those of the applicants. A limited amount of accommodation was available on a temporary basis. As a result the council felt constrained to use bed and breakfast accommodation wherever it could find it, in the case of one of the applicants in Great Yarmouth. It submitted that location was not a relevant consideration for the purposes of determining whether accommodation was suitable within the meaning of section 206. This court rejected that submission and in doing so rejected the suggestion that the council could derive assistance from section 208, the purpose of which was said to be “to ensure so far as possible that housing authorities do not simply decant homeless persons into areas for which other authorities are responsible.” Beyond that, however, the decision provides little assistance in relation to the issues raised by this appeal.

In R (Calgin) v Enfield London Borough Council [2005] EWHC 1716 (Admin), [2006] H.L.R. 4 the local housing authority had adopted a policy under which homeless people were offered accommodation outside its own district because the demand was such that, coupled with the acute shortage of affordable housing, it was not reasonably practicable in many instances to provide accommodation locally. The claimant, who had been offered accommodation in Birmingham, challenged the lawfulness of the policy; the council relied on section 208 and the resulting dispute revolved around the meaning of the expression “so far as reasonably practicable”. Counsel for Mr. Calgin accepted that cost could not be an irrelevant or improper consideration and Elias J. (as he then was) said in paragraphs 29 and 30:

“29.

Furthermore, it must surely be assumed that Parliament would have been well aware of the intensive pressures on housing stock and, whilst favouring in borough accommodation, would not have sought to impose undue or unnecessarily onerous financial burdens on local authorities who are taking a practical approach to the problem of matching the need for a range of suitable accommodation with a limited budget.

30.

. . . In a practical world the question of available resources must be as relevant to the discharge of the duty under s.208 as it is to the duty under s.206.”

The judge recognised that there had to be a proper evidential basis for determining that the provision of local accommodation was not reasonably practicable, but held in paragraph 33 that:

“33.

Given the financial constraints on the Council, it was entitled to conclude that it would not be reasonably practicable to house these persons within the borough of Enfield.”

In relation to the application of the policy the judge said in paragraph 34:

“34.

. . . the criteria could specify that normally suitable accommodation which is available in the area should be used, unless it is not reasonably practicable to do so. And in my opinion it may not be reasonably practicable even where cost effective accommodation is available . . . It seems to me, for example, that an authority may be justified in withholding accommodation from someone with no or very limited links with the area in the confident expectation that someone with much closer links, and for whom out of borough accommodation would not be suitable, will within a very short time be seeking accommodation also. The housing authority must anticipate likely demand, and I did not understand Mr Knafler to dispute this.”

Mr. Peacock relied on these passages as supporting the proposition that local housing authorities are entitled to take into account a wide range of factors, including financial pressures, staff resources, the overall requirement for housing, the relative needs of different applicants and the pattern of demand, when deciding whether it is reasonably practicable to provide accommodation to particular applicants within their own districts.

Mr. Luba submitted that the decision of the reviewing officer in this case was wrong for several reasons: she had considered the position from a broad perspective instead of focusing on the position of Ms Nzolameso and asking whether there was any accommodation within Westminster that was suitable to her needs; she had examined the position as it was at the date of her decision, rather than as it had been at the date of the original decision; she had abdicated responsibility for deciding what accommodation should be offered to Ms Nzolameso, adopting the decision of the Temporary Lettings team rather than taking on the burden herself; she had endorsed the approach of simply asking what accommodation was suitable for Ms Nzolameso’s household, instead of asking whether it was reasonably practicable to accommodate her within Westminster; and she had failed to direct her mind to Ms Nzolameso’s particular circumstances.

Mr. Peacock was clearly right in saying that section 202 of the Act does not give an applicant a right to challenge by way of review a local housing authority’s compliance with section 208(1) as such. However, he was also right, in my view, to recognise that, since the authority must comply with its obligation under that section, a failure to do so, leading to the applicant’s being offered accommodation outside the district, is likely to have a bearing on whether that accommodation is suitable. In the present case the reviewing officer decided that the council had complied with section 208 and that the accommodation was not unsuitable by virtue of its location. Although Mr. Luba made other criticisms of the reviewing officer’s decision, to which I have referred and to which I shall in due course return, the central question in this case is whether Westminster was entitled to have regard to the shortage of housing within its own area, the demands likely to be made upon it and the varying needs of those to whom it owed a duty to provide accommodation when reaching its decision.

Although I accept that section 193 imposes on a local housing authority a personal duty to a homeless person who falls within it, I do not think it follows that it is obliged to consider only those factors relating to the particular applicant when deciding whether it is reasonably practicable to make an offer of accommodation within its own district. Mr. Luba’s submission, if correct, would in my view put local housing authorities in an impossible position and would impose on them obligations to which Parliament cannot have intended to subject them. It would require them to make available any suitable accommodation which happened to be available within their own districts at the time they were called upon to make a decision on an application, without regard to how the needs of the applicant’s household compared to those of others to whom they already owed a similar duty, or to the circumstances of those with a greater need to remain within their districts from whom they could expect to receive similar applications in the near future. Read in conjunction with paragraph 48 of the Supplementary Guidance, it would require the housing department (in this case the Temporary Lettings team) to scour not only the authority’s own district but also the districts of all neighbouring authorities in an ever widening circle in an attempt to find accommodation from any source that might be suitable to the applicant’s needs. That would impose an unreasonable and disproportionate burden on councils, which do not have the human or financial resources to undertake a search of that kind for every applicant. What is reasonably practicable in any given case is a matter for the housing authority itself to decide, provided its decision is not Wednesbury unreasonable. In my view, when considering whether it is reasonably practicable to provide an applicant with suitable accommodation in its own district, a housing authority is entitled to have regard to all the factors that have a bearing on its ability to provide accommodation to that person, including the demands made upon it and the pressures on its resources, whether of a financial or administrative nature.

Mr. Luba submitted, however, that there must be a proper evidential basis for a housing authority decision that it is not reasonably practicable to offer an applicant accommodation in its own district. In support of that submission he drew our attention to the decisions in R (Cafun) v The London Borough of Bromley (17^th October 2000) (unreported), R (Yumsak) v Enfield London Borough Council [2002] EWHC 280, [2003] H.L.R. 1, Calgin (sup.) and Sevine v Enfield London Borough Council (6^th November 2008), a decision of the Central London County Court, all of which refer in one way or another to the need for there to be an evidential basis for a decision of that kind. In the present case, he submitted, there was no evidential basis on which the reviewing officer could properly reach the conclusion that it was not reasonably practicable for Westminster to offer Ms Nzolameso accommodation within its own district.

I accept that the court should be astute to ensure that local housing authorities give proper consideration to their duty under section 208 and do not merely apply policies which lead to accommodation being provided outside their own districts in a routine and unthinking manner. On the other hand, many authorities, of which Westminster is one, are under great pressure to discharge their statutory obligations and should not be prevented from making sensible use in an orderly way of the housing stock available to them, whether within or outside their own districts.

Mr. Luba submitted that the paragraph in the reviewing officer’s decision quoted earlier does not provide a sufficient basis for her finding that it was not reasonably practicable for Westminster to accommodate Ms Nzolameso within its own district. However, the decision must be read as a whole and it is clear that the reviewing officer had available to her the whole of the housing file. She must, in my view, also be taken to have been aware of the resources available to the council and the pressures on them. It is not necessary in a decision letter of this kind for the reviewing officer to describe in detail what those resources and pressures are. If, as I think, Westminster was entitled to take a broad range of factors into account in deciding whether it was reasonably practicable to provide accommodation to Ms Nzolameso within its own district, it was sufficient for the reviewing officer to describe the circumstances which led to her conclusion in general terms. I am therefore not persuaded that her decision was irrational in the sense that it lacked an evidential basis.

Nor do I think that there is any substance in Mr. Luba’s other criticisms of the reviewing officer’s decision. There is no reason to think that pressures on Westminster’s resources in May 2013 were significantly different from those it faced in January that year. Since, for the reasons I have given, I am satisfied that the reviewing officer was entitled to have regard to a wide range of factors when reaching her decision, she was entitled to refer to the current position in so far as it reflected the position that had existed when the offer was made. For similar reasons I am unable to accept the submission that she abdicated responsibility to the Temporary Lettings team, in the sense, as I understand it, that she endorsed their decision without re-examining Ms Nzolameso’s needs and the resources available to meet them. She must be taken to have been aware of the resources available to the housing department and the approach which it took to allocating accommodation to homeless applicants. She considered Ms Nzolameso’s circumstances and needs in some detail and on that basis reached her own conclusion about the suitability of the accommodation that had been offered to her.

For these reasons I do not think that Westminster was in breach of its obligations under section 208 of the Act.

Supplementary Guidance: paragraph 48

As an alternative to his argument based on section 208 Mr. Luba sought to rely on paragraph 48 of the Supplementary Guidance. He submitted that, if Westminster could not offer Ms Nzolameso accommodation within its own district, in order to be satisfied that any accommodation offered to her elsewhere was suitable for her needs it was necessary for it to have looked for accommodation nearer to its own district before offering her a house in Bletchley. However, there was no indication in the reviewing officer’s decision that she had been aware of paragraph 48 or that she had taken it into account. Accordingly, the decision that the accommodation offered to Ms Nzolameso in Bletchley was suitable could not be supported.

In my view this argument must also be rejected. The guidance produced by the Secretary of State is lengthy and detailed. Paragraph 48 of the Supplementary Guidance relates to one aspect of the housing authority’s duty under section 208(1) and the reviewing officer cannot be criticised for having failed to make express reference to it. In my view there is no basis for inferring that she did not have it in mind or that she was unaware of the desirability of accommodating Ms Nzolameso as close to Westminster as was reasonably practicable. She examined Ms Nzolameso’s circumstances in detail and considered the extent to which she needed to remain close to the place where she had previously been living. She described the pressures on Westminster and explained that accommodation was offered on the basis of the applicant’s circumstances. In my view that was sufficient; it was not necessary for her to explain in detail what other accommodation was available to Westminster outside its own district and why it had not been offered to Ms Nzolameso.

For these reasons I agree with the judge that the reviewing officer did not fail to take into account the requirements of section 208 or the guidance given by the Secretary of State in relation to it when reaching her decision that the accommodation at Bletchley was suitable for Ms Nzolameso, despite its location, and that her decision was not unlawful. I would therefore dismiss the appeal.

Lady Justice Black :

I agree.

Lord Justice Vos :

I also agree.

Michaelmas Term

[2015] UKSC 59

On appeal from: [2014] EWCA Civ 2

JUDGMENT

Mandalia (Appellant) vSecretary of State for the Home Department (Respondent)

before

Lady Hale, Deputy President

Lord Clarke

Lord Wilson

Lord Reed

Lord Hughes

JUDGMENT GIVEN ON

14 October 2015

Heard on 7 May 2015

Appellant

Respondent

Abid Mahmood

James Eadie QC

Nazmun Ismail

Mathew Gullick

(Instructed by Fountain Solicitors)

(Instructed by The Government Legal Department)

LORD WILSON: (with whom Lady Hale, Lord Clarke, Lord Reed and Lord Hughes agree)

Question

In 2008 the appellant, Mr Mandalia, who was then aged 25, came from India to the UK in order to study. His visa, as extended, was due to expire on 9 February 2012. On 7 February 2012 he applied to the UK Border Agency (“the agency”) for a further extension of it in order to study accountancy. The rules referable to his type of application were that it had to be accompanied by a bank statement or statements showing that he had held at least £5,400 for a consecutive period of 28 days ending no earlier than a month prior to the date of his application. Mr Mandalia accompanied his application with a bank statement but it showed that he had held at least £5,400 for a consecutive period of only 22 days ending no earlier than a month prior to the date of his application. The statement which he provided did not cover six of the requisite 28 days. The extra coverage might have been either of the six days immediately following the period of 22 days covered by his statement or of the six days immediately preceding it; but in what follows it will be convenient to address the deficit in his coverage as being the latter. The agency refused Mr Mandalia’s application for a further extension. The question is: did it act unlawfully in refusing his application without having first invited him to supply a further bank statement or statements which showed that he had also held at least £5,400 throughout those six preceding days? On 20 January 2014 the Court of Appeal, by a judgment delivered by Davis LJ with which Pitchford LJ and Sir Stanley Burnton agreed, gave a negative answer to that question: [2014] EWCA Civ 2, [2014] Imm AR 588. Mr Mandalia’s appeal to this court requires us to consider, in particular, the agency’s instructions to caseworkers which then applied to their processing of such applications.

The Rules

In March 2006 the Secretary of State presented to Parliament a White Paper entitled “A Points-Based System: Making Migration Work for Britain” Cm 6741. In Australia the rules for controlling immigration for the purposes of work or study had been encompassed in a points-based system and the White Paper heralded the introduction of an analogous system in the UK for the control of immigration for such purposes from outside the EU. According to the White Paper a key outcome of the system would be “a more efficient, transparent and objective application process” (paragraphs 3, 25). The system was introduced into the Immigration Rules (“the rules”) as “Part 6A: POINTS-BASED SYSTEM”, which became operative in stages beginning in November 2008. Since becoming operative, the provisions of Part 6A, including the appendices to it, have been amended on numerous occasions. In Pokhriyal v Secretary of State for the Home Department[2013] EWCA Civ 1568, [2014] INLR 291, Jackson LJ observed at para 4 that they had “now achieved a degree of complexity which even the Byzantine emperors would have envied”. On any view, and contrary to a forecast in the White Paper, it is difficult for applicants, for many of whom English is not even their first language, to navigate their way around the requirements. It may be, however, that, as intended, the system is not difficult for caseworkers to administer. Certainly they have to a substantial extent been relieved of the obligation to consider whether to exercise discretions in their processing of applications. The sharp edges of the rules have cut out hard cases which have found their way to the courts and which have inevitably attracted at any rate the sympathy of the judges and sometimes – I speak for myself – nascent reservations about the suitability of the system which have not been easy to suppress. But suppressed they must be. For the management of this type of immigration, in principle highly valuable for the UK, is a profound social challenge, of which the complexities are beyond the understanding of the courts; and, by not exercising its right to disapprove Part 6A of the rules, Parliament has indorsed the Secretary of State’s considered opinion that a points-based system is the optimum mechanism for achieving management of it.

The points-based system has five tiers. Into Tier 1 fall highly skilled workers, entrepreneurs and investors. Into Tier 2 fall ordinary skilled workers if sponsored by a UK employer. Tier 3, designated for certain low-skilled migrants, has never been brought into operation. Into Tier 4 fall students if sponsored by educational establishments and they are subdivided into “General” students, broadly encompassing adults, and “Child” students, broadly encompassing minors. Into Tier 5 fall temporary workers.

Mr Mandalia’s application was therefore for leave to remain in the UK as a Tier 4 (General) Student.

Mr Mandalia wished to become a certified accountant by pursuing a two-year course of study at the BPP University College of Professional Studies. The college furnished him with a document entitled “Confirmation of Acceptance for Studies”, by which he secured the points which satisfied requirement (c) of Rule 245ZX of the rules and paragraph 113 of “Appendix A: Attributes”.

But requirement (d) of Rule 245ZX obliged Mr Mandalia also to secure points under “Appendix C: Maintenance (Funds)”. An understanding of requirement (d) is achieved only by travel through seven stages.

Paragraph 1A of Appendix C provided:

“(a) The applicant must have the funds specified in the relevant part of Appendix C at the date of the application.

(b) …

(c) If the applicant is applying as a Tier 4 migrant, the applicant must have had the funds referred to in (a) above for a consecutive 28-day period of time.”

The relevant part of Appendix C was in paragraphs 10 to 14.

ii.

Paragraph 10 provided that, as a Tier 4 (General) Student, Mr Mandalia had to score ten points for funds.

iii.

Paragraph 11 provided that he would secure ten points only if the funds shown in tabulated form were available to him “in the manner specified in paragraph 13”.

iv.

The table in paragraph 11 required him to show not only funds with which to pay the fees for the first year of the course (being a requirement which Mr Mandalia satisfied) but also, and here I refer to the figures in the table as they stood on 7 February 2012, £600 per month for nine months (ie £5,400), as evidence of his ability to maintain himself while pursuing the course.

Paragraph 13 provided that funds would be available to Mr Mandalia only where “specified documents” so demonstrated.

vi.

Rule 245A of the rules, as it stood on 7 February 2012, provided that “specified documents” meant documents specified by the Secretary of State in a publication entitled “Tier 4 of the Points Based System – Policy Guidance” (“the policy guidance”).

vii.

The version of the policy guidance operative on 7 February 2012, namely the version dated July 2011, made clear, at para 182, that the consecutive 28-day period identified in para 1A(c) of Appendix C to the rules was a period ending no earlier than a month prior to the date of the application and, at para 188, that, of the five types of document which could demonstrate availability of the funds, one was Mr Mandalia’s bank statements.

The rules therefore required Mr Mandalia to demonstrate, in particular by the provision of bank statements, that he had held at least £5,400 for a consecutive period of 28 days ending no earlier than 7 January 2012.

Mr Mandalia’s Application

Mr Mandalia completed the form appropriate to an application for leave to remain as a Tier 4 (General) Student. It ran to 43 pages. Section L of it was entitled “Maintenance (Funds)”. Section L7 said:

“The student must have £600 for each calendar month of their course up to a maximum of nine months. … Please state what this amount is:”

In the box Mr Mandalia wrote “£5,400”. Section L24 said:

“Please tick to confirm the documents submitted as supporting evidence to show the student has access to the required amount of money for maintenance and funds.”

Mr Mandalia ticked the first box, entitled “Personal bank or building society statements”.

The bank statement which Mr Mandalia enclosed with his application form, submitted by post with the requisite fee on 6 February 2012 and received by the agency on the following day, was a statement relating to a current account held in his name with HSBC. It covered the period from 29 December 2011 to 19 January 2012, namely 22 days. Importantly the statement was numbered sheet 64 and the opening entry for 29 December 2011 was a credit balance “brought forward” of £11,090.60. The closing balance was a credit balance “carried forward” of £12,071.05. Transactions occurring between those dates amounted only to eight modest debits and two less modest credits. The balance was at its lowest on 6 January 2012: it was then £11,018.34.

10.

By letter to Mr Mandalia dated 8 February 2012, the agency acknowledged receipt of his application and said that it would be passed to a casework unit. The agency added:

“If there is any problem with the validity of the application, such as missing documentation or omissions on the form, a caseworker will write to you as soon as possible to advise you what action you need to take to rectify the problem.”

11.

By letter to Mr Mandalia dated 21 April 2012, the agency, which had made no further contact with him following its letter dated 8 February 2012, informed him that his application had been refused in accordance with the rules and the policy guidance and that a decision had also been made for his removal from the UK pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”). The agency made clear that the ground for refusal of his application was that he had failed to demonstrate that he had held £5,400 for a full 28-day period and that he had therefore failed to secure the requisite ten points.

12.

It will already be apparent that nothing in the application form itself could have alerted Mr Mandalia to the requirement to enclose bank statements which demonstrated that his holding of at least £5,400 had endured for a consecutive period of 28 days (“the 28-day requirement”). It would have been easy for the agency to explain the 28-day requirement in its instruction in section L24. It is probable that, when he obtained the form, Mr Mandalia also obtained a leaflet entitled “Help Text” which, on the front of the form, the agency advised him to read prior to completing it. But, although not every page of the leaflet in its then current form is before the court, the agency accepts that, again, there was nothing in it to alert Mr Mandalia to the 28-day requirement. The Secretary of State relies, however, on the following advice set out at the beginning of section L of the form:

“Before filling in this section of the form, the student should refer to the Immigration Rules … the help text leaflet available with the form and … Policy Guidance …”

The respective links to gaining access to the rules and to the policy guidance on the agency’s website were duly set out within that sentence. So the Secretary of State is able to say that, were an applicant such as Mr Mandalia to follow the advice set out at the beginning of section L, he would, on arrival at Rule 245ZX of the rules and at para 1A of Appendix C, learn of the 28-day requirement; and that, on arrival at para 182 of the policy guidance, he would notice it again and would also learn that the 28-day period was required to end no earlier than a month prior to the date of the application.

The Proceedings

13.

Mr Mandalia appealed to the First-tier Tribunal (Immigration and Asylum Chamber) against the agency’s refusal of his application. He represented himself at the hearing before the Tribunal Judge; a Home Office Presenting Officer represented the Secretary of State. On 2 July 2012 the tribunal dismissed Mr Mandalia’s appeal on the ground that his application had fallen foul of the 28-day requirement. He had enclosed with his notice of appeal statements numbered 62 and 63 relating to his account with HSBC. The statement numbered 63 was confined to transactions on 28 December 2011 and so Mr Mandalia had also enclosed statement numbered 62, which covered all preceding transactions from 29 November 2011 onwards. The statements demonstrated that, on the missing six days between 23 and 28 December 2011, Mr Mandalia’s credit balance had been £11,280.30 for the first five days and £11,127.98 for the sixth day.

14.

In May 2011 a controversial provision, inserted (by section 19(2) of the UK Borders Act 2007) into the Nationality, Immigration and Asylum Act 2002 as section 85A, had come into force. The effect of subsections (3) and (4) had been to disable the First-tier Tribunal from considering evidence adduced by Mr Mandalia in the course of his appeal unless he had submitted it to the agency in support of his application. Strictly speaking, therefore, his bank statements numbered 62 and 63 were inadmissible before the tribunal. The judge probably took the view that reference to those statements would be impermissible only if they were to provide a basis for allowing the appeal; and that, in briefly setting out his reasons for dismissing it, it would be unrealistic for him not to explain that Mr Mandalia’s possession of the requisite £5,400 throughout the first six of the 28 days had by then become clear.

15.

At the end of his reasons the judge of the First-tier Tribunal observed that, in the light of the fresh evidence, a further, more careful, application by Mr Mandalia for extension of his visa might well succeed. This court has received vigorous submissions on each side about the circumstances in which, on payment of a further fee, Mr Mandalia might have been able to make a further application. But in my view his ability to do so, to the extent that it existed, is irrelevant to the issue raised in the appeal.

16.

Mr Mandalia took specialist advice about the possibility of an appeal to the Upper Tribunal (Immigration and Asylum Chamber) and, with the help of the adviser, applied to the Upper Tribunal for permission to appeal. The adviser was aware of a document which had been issued by the agency to caseworkers on 17 June 2011 entitled “PBS Process Instruction: Evidential Flexibility” (“the process instruction”) and which had subsequently been published on the agency’s website. The grounds of the proposed appeal were that, in refusing Mr Mandalia’s application without first having first drawn his attention to his failure to demonstrate that he had held the requisite £5,400 throughout the first six of the 28 days, the agency had unlawfully departed from its policy set out in the process instruction. Mr Mandalia also sought permission to appeal against the agency’s decision to remove him from the UK on the ground that, in the light of the Upper Tribunal’s construction of the terms, as they then were, of section 47 of the 2006 Act in Ahmadi v Secretary of State for the Home Department (which was later to be upheld in the Court of Appeal [2013] EWCA Civ 512, [2014] 1 WLR 401), the decision had been premature.

17.

A judge of the Upper Tribunal duly granted to Mr Mandalia permission to appeal but he did so in somewhat ambiguous terms. Two other judges of the Upper Tribunal construed his permission as limited to the appeal against the removal decision; and on 12 December 2012, in the light of its decision in the Ahmadi case, the Upper Tribunal allowed Mr Mandalia’s appeal in that respect. The result was however that the Upper Tribunal never addressed his challenge, by reference to the process instruction, to the First-tier Tribunal’s decision to dismiss his appeal against the refusal of his application.

18.

When in the Court of Appeal Mr Mandalia sought to renew his challenge to the refusal of his application, the Secretary of State responded to the effect that permission to make that challenge had been refused in the Upper Tribunal and that the Court of Appeal therefore had no jurisdiction to entertain an appeal in relation to it. Mr Mandalia countered by submitting that, on its proper construction, the Upper Tribunal’s grant of permission had included permission to make that challenge; that the two judges of the Upper Tribunal who had considered otherwise had been wrong; that the Upper Tribunal should accordingly be taken to have dismissed that part of his appeal; and that the Court of Appeal therefore had jurisdiction to entertain his appeal against the dismissal of it. This issue was not resolved until the start of the substantive hearing of Mr Mandalia’s appeal in the Court of Appeal, when it upheld his submissions in relation to it and turned to consider the merits of his appeal.

19.

It follows, however, that the Court of Appeal was handicapped by the lack of any analysis of the effect of the process instruction on the lawfulness of the agency’s decision by either of the specialist tribunals below. It was unfortunate not only that the judge’s grant of permission to appeal to the Upper Tribunal was couched in ambiguous terms but also that other judges of the Upper Tribunal misconstrued it and so declined to address that part of Mr Mandalia’s appeal which was based on the process instruction. But it was still more unfortunate that no reference had been made to the process instruction before the First-tier Tribunal. Mr Mandalia could not be expected to have been aware of it. But, irrespective of whether the specialist judge might reasonably be expected himself to have been aware of it, the Home Office Presenting Officer clearly failed to discharge his duty to draw it to the tribunal’s attention as policy of the agency which was at least arguably relevant to Mr Mandalia’s appeal: see AA (Afghanistan) v Secretary of State for the Home Department[2007] EWCA Civ 12 at para 13.

20.

The Court of Appeal determined Mr Mandalia’s appeal together with two other appeals in which the effect of the process instruction was also raised. In the first of the other appeals the Secretary of State was the appellant and Ms Rodriguez was the respondent. The agency had refused her application for extension of her student visa for failure to secure points under Appendix C. By reference to the process instruction, the Upper Tribunal had ordered that the agency’s refusal be quashed. In the second of the other appeals Ms Patel was the appellant and the Secretary of State was the respondent. She was appealing against the order of the Upper Tribunal by which, in contrast, it had declined to quash the agency’s refusal of her application for extension of her student visa for failure to secure points under Appendix C. In all three appeals the decision of the Court of Appeal went in favour of the Secretary of State. So it allowed her appeal in Ms Rodriguez’ case and dismissed the appeals of Mr Mandalia and Ms Patel. There was some difference – which Davis LJ described as no real difference – between the facts in Mr Mandalia’s case and those in the cases of Ms Rodriguez and Ms Patel. For they had both enclosed bank statements which did indeed cover the requisite 28 days but which showed that, on four of those days in the case of Ms Rodriguez and on one of them in the case of Ms Patel, their credit balances had fallen below the amount of which they were required to demonstrate possession. The Court of Appeal accepted that each of them would have been able to demonstrate possession of other funds which, had the agency drawn their attention to the deficit, would have repaired it; but it held that the agency had nevertheless been entitled to refuse their applications without having drawn it to their attention.

The Process Instruction

21.

As its full title indicated, the process instruction was addressed to the agency’s caseworkers who were processing applications for visas by reference to the points-based system. The reference in the title to evidential flexibility was an indication in shorthand that the instruction was that caseworkers should show some, albeit limited, flexibility in relation to applications from which requisite information had been omitted and, in particular, which had not been accompanied by requisite evidence.

22.

The introduction to the process instruction was as follows:

“In response to significant feedback from the caseworking teams, as well as from our customers, from August 2009 a flexible process was adopted allowing PBS caseworkers to invite sponsors and applicants to correct minor errors or omissions in applications both main and dependant submitted under Tiers 1, 2, 4 and 5.

The instruction enabled caseworkers to query details or request further information, such as a missing wage slip or bank statement from a sequence. Three working days [were] given to the customer to provide the requested information.

This instruction only applied to cases which would be refused solely on the absence of a piece of evidence or information. Where the application would fall for refusal even if the missing evidence was submitted, a request to submit this further information would not be made.

The introduction of this instruction resulted in a reduced refusal rate. However, those that fell for refusal where multiple pieces of information were missing were often successful on appeal.

Following analysis of allowed appeals and feedback from the National Audit Office … and Chief Inspector …, the original Evidential Flexibility instruction has been reviewed to meet the recommendations put forward in these reports …

As such, there have been two significant changes to the original Evidential Flexibility instruction:

1) The time given to applicants to produce additional evidence has been increased … to seven working days; and

2) There is now no limit on the amount of information that can be requested from the applicant. However, requests for information should not be speculative, we must have sufficient reason to believe that any evidence requested exists.”

23.

The process instruction then identified 19 steps which the caseworker was to take “when an application has missing evidence or there is a minor error”.

24.

In step one the caseworker was to ask himself whether there was missing evidence. If his answer was “yes”, he was to proceed to step two.

25.

In step two he was to ask himself whether the application would fall to be refused even if the missing evidence was provided. If his answer was “no”, he was to proceed to step three.

26.

Step three was as follows:

“We will only go out for additional information in certain circumstances which would lead to the approval of the application.

Before we go out to the applicant we must have established that evidence exists, or have sufficient reason to believe the information exists.

Examples include (but are not limited to):

1) bank statements missing from a series;

2) …

3) …

4) …

The evidence listed in Annex A is not exhaustive, but provides caseworkers with guidance as to the circumstances when evidence can be requested.”

In Annex A it was reiterated that it might be appropriate to ask an applicant under Tier 4 to provide “[m]issing bank statements from a series.”

27.

Step four addressed the caseworker who was unsure whether the evidence existed. He was to discuss the issue with his line manager. Here the instruction was that “[w]here there is uncertainty as to whether evidence exists, benefit should be given to the applicant and the evidence should be requested”. So the question was whether the line manager was satisfied that the missing evidence existed or had reasonable grounds to believe that it existed. If the answer to the question was “yes” or even if the answer was “unsure”, the caseworker was to proceed to step five, which was to contact the applicant. The later steps are irrelevant to the appeal.

28.

In that Mr Mandalia’s application was made on 7 February 2012, it is agreed that the process instruction represented agency policy which in principle applied to it. It should be noted, however, that, in respect of all applications made on or after 6 September 2012, the process instruction was withdrawn and the facility for a caseworker to seek further information or evidence prior to determining an application was instead governed by a new rule, namely rule 245AA, inserted into the rules. The new rule, which was amended with effect from 13 December 2012 and re-amended with effect from 1 October 2013, seems to give caseworkers substantially less flexibility than did the process instruction. But the encouragement to contact an applicant survives if “[s]ome of the documents in a sequence have been omitted (for example, if one bank statement from a series is missing)”.

The Legal Effect of Policy

29.

In 2001, in R (Saadi) v Secretary of State for the Home Department[2001] EWCA Civ 1512, [2002] 1 WLR 356, Lord Phillips of Worth Matravers MR, giving the judgment of the Court of Appeal, said in para 7:

“The lawful exercise of [statutory] powers can also be restricted, according to established principles of public law, by government policy and the legitimate expectation to which such a policy gives rise.”

Since 2001, however, there has been some departure from the ascription of the legal effect of policy to the doctrine of legitimate expectation. Invocation of the doctrine is strained in circumstances in which those who invoke it were, like Mr Mandalia, unaware of the policy until after the determination adverse to them was made; and also strained in circumstances in which reliance is placed on guidance issued by one public body to another, for example by the Department of the Environment to local planning authorities (see R (WL) (Congo) v Secretary of State for the Home Department[2010] EWCA Civ 111, [2010] 1 WLR 2168, para 58). So the applicant’s right to the determination of his application in accordance with policy is now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but free-standing, which was best articulated by Laws LJ in R (Nadarajah) v Secretary of State for the Home Department[2005] EWCA Civ 1363, as follows:

“68 … Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public.”

30.

Thus, in R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening)[2011] UKSC 12, [2012] 1 AC 245 (in which this court reversed the decision of the Court of Appeal reported as R (WL) (Congo) but without doubting the observation in para 58 for which I have cited the decision in para 29 above), Lord Dyson said simply:

“35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute.”

There is no doubt that the implementation of the process instruction would have been a lawful exercise of the power conferred on the Secretary of State by section 4(1) of the Immigration Act 1971 to give or vary leave to remain in the UK.

31.

But, in his judgment in the Lumba case, Lord Dyson had articulated two qualifications. He had said:

“21 … it is a well established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers.”

But there was ample flexibility in the process instruction to save it from amounting to a fetter on the discretion of the caseworkers. Lord Dyson had also said:

“26 … a decision-maker must follow his published policy … unless there are good reasons for not doing so.”

But the Secretary of State does not argue that there were good reasons for not following the process instruction in the case of Mr Mandalia. Her argument is instead that, properly interpreted, the process instruction did not require the caseworker to alert Mr Mandalia to the deficit in his evidence before refusing his application. So the search is for the proper interpretation of the process instruction, no more and no less. Indeed in that regard it is now clear that its interpretation is a matter of law which the court must therefore decide for itself: R (SK (Zimbabwe)) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2011] UKSC 23, [2011] 1 WLR 1299, para 36, Lord Hope of Craighead). Previous suggestions that the courts should adopt the Secretary of State’s own interpretation of her immigration policies unless it is unreasonable, made for example in Gangadeen and Jurawan v Secretary of State for the Home Department [1998] Imm AR 106 at p 115, are therefore inaccurate.

Interpretation of the Process Instruction

32.

In step three of the process instruction a specific example was given of a situation in which the caseworker should request the applicant to provide further evidence: it was where a bank statement was “missing from a series”. This court has received elaborate submissions about whether, in circumstances in which Mr Mandalia had submitted a bank statement numbered 64, his statements numbered 62 and 63 can be said to have been “missing from a series”. The conclusion of the Court of Appeal was that they were not “missing from a series”. Davis LJ said:

“102 … this was not a “missing sequence” case; and it would again have been complete speculation on the part of the Secretary of State as to whether bank statements – if available at all – for the preceding period or the succeeding period would have shown the availability of funds in the required amounts.”

The Secretary of State concedes that a bank statement numbered 64 clearly indicates that statements for the preceding period are “available”; but otherwise she commends the analysis of Davis LJ. Indeed in R (Gu) v Secretary of State for the Home Department[2014] EWHC 1634 (Admin), [2015] 1 All ER 363, Foskett J adopted it. The facts in the Gu case were almost identical to those in the present case but, by the date of Mr Gu’s application, the process instruction had been withdrawn and instead the court had to consider the references in the first version of rule 245AA to a document omitted from a “sequence” as well as to a bank statement missing from a “series”. In dismissing Mr Gu’s application for judicial review of the refusal of his application, Foskett J held:

“24 … something cannot be ‘missing’ from a sequence until the sequence itself exists. To my mind that means that at least the start and the end of the sequence must be in evidence for the sequence to exist. Something missing from it can only, therefore, be from within those two limits.”

Thus emboldened by the analysis of two highly respected judges, the Secretary of State submits that it is only when the applicant has provided the caseworker with what she calls two “pillars”, namely the pillar which marks the start of a series and the pillar which marks its end, that the caseworker can properly conclude that something is missing from the series which he should invite the applicant to provide.

33.

Speaking for myself, I consider the Secretary of State’s submission to be misplaced even at the high level of pedantry on which it has been set. Mr Mandalia’s bank statements numbered 62, 63 and 64 formed a series. It must have been obvious to the caseworker, as he studied statement numbered 64, that it formed the last in a series and that the statement or statements which covered the preceding six days, and which turned out to be the statements numbered 62 and 63, were missing from the series.

34.

But in my view it was not the task of the unfortunate caseworker even to attempt to split such hairs. The process instruction rightly stressed the need for flexibility by telling him:

in the introduction that there was now no limit on the amount of information that could be requested, provided that the request was not speculative;

in step three that bank statements missing from a series represented only an example of the further evidence which should be requested; and

in step four that, where there was uncertainty as to whether evidence existed, the applicant should be given the benefit of the doubt and it should be requested.

35.

Conferred, as he was, with that necessary degree of flexibility, how could the caseworker have followed the process instruction otherwise than by requesting Mr Mandalia to provide the statement or statements which covered the first six of the 28 days? Of course it would have seemed possible to the caseworker that, although Mr Mandalia had held more than double the requisite funds throughout the later 22 days, he had not held the requisite funds throughout the first six days. But why was that possibility more likely than that an applicant who had provided statements covering only the first and last of the 28 days had not held the requisite funds throughout the intervening 26 days? In one sense every request by a caseworker for further evidence would have been “speculative” but what was there in Mr Mandalia’s application to render a request to him more “speculative” than any other? Was there not, at the very least, doubt, the benefit of which should have been given to him?

Answer

36.

I conclude that the answer to the question identified in para 1 above is “yes”: the agency’s refusal of Mr Mandalia’s application was unlawful because, properly interpreted, the process instruction obliged it first to have invited him to repair the deficit in his evidence. I reach this conclusion without reference to the terms of the agency’s letter to Mr Mandalia dated 8 February 2012, set out in para 10 above. The Secretary of State may well be correct to say that, however broad the apparent assurance that Mr Mandalia would be advised about deficits in his application, the intention of the letter’s author was to limit the assurance to deficits in what the Secretary of State describes as the initial validity of the application as opposed to deficits which might emerge on its substantive consideration. But this distinction carries a subtlety which would have been lost on Mr Mandalia. No doubt he would reasonably have understood the letter to make clear that, were there to have been a deficit in his evidence of having held the requisite funds, it would be drawn to his attention before his application was refused. It is, however, unnecessary to decide whether the letter conferred on Mr Mandalia a legal entitlement to that effect.

37.

The court should therefore allow this appeal; should overrule the decision in the Gu case; and should quash the refusal of Mr Mandalia’s application so that, no doubt following the provision of further, updated information made by him pursuant to request, it may lawfully be re-determined.

Hilary Term

[2011] UKSC 12

On appeal from: [2010] EWCA Civ 111

JUDGMENT

Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 (Appellant) v Secretary of State for the Home Department (Respondent)

Kadian Mighty (previously referred to as KM) (Jamaica) (Appellant) v Secretary of State for the Home Department (Respondent)

before

Lord Phillips, President

Lord Hope, Deputy President

Lord Rodger

Lord Walker

Lady Hale

Lord Brown

Lord Collins

Lord Kerr

Lord Dyson

JUDGMENT GIVEN ON

23 March 2011

Heard on 15, 16, 17 and 18 November 2010

Appellant (WL)

Respondent

Raza Husain QC

Michael Beloff QC

Laura Dubinsky

Robin Tam QC

Tom Hickman

Charles Bourne

Alex Goodman

Jeremy Johnson

(Instructed by Public Law Project)

(Instructed by Treasury Solicitors)

Appellant (KM)

Respondent

Raza Husain QC

Michael Beloff QC

Martin Westgate QC

Robin Tam QC

Alex Goodman

Charles Bourne

Jeremy Johnson

(Instructed by Lawrence Lupin Solicitors)

(Instructed by Treasury Solicitors)

Intervener (JUSTICE)

Intervener (Bail for Immigration Detainees)

Rabinder Singh QC

Michael Fordham QC

Elizabeth Prochaska

Graham Denholm

(Instructed by Freshfields Bruckhaus Deringer LLP)

(Instructed by Allen & Overy LLP)

LORD DYSON:

Introduction

These two cases raise a number of important issues in relation to the detention pending deportation of foreign national prisoners (“FNPs”) following the completion of their sentences of imprisonment. Section 3(5)(a) of the Immigration Act 1971 (“the 1971 Act”) provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State “deems his deportation to be conducive to the public good”. Schedule 3 to the 1971 Act provides in certain specified circumstances for the detention of such a person pending his deportation.

Walumba Lumba is a citizen of the Democratic Republic of Congo (“DRC”) who entered the UK on 10 April 1994. He was convicted of a number of offences culminating in an offence of wounding with intent for which he was sentenced to 4 years’ imprisonment on 12 January 2004. On 3 April 2006, the Secretary of State informed Mr Lumba of his intention to deport him under section 3(5)(a) of the 1971 Act. He was due to be released from prison on 23 June 2006, but by letter dated 22 June 2006 was notified that he was to be detained pending deportation. He left the United Kingdom voluntarily on 13 February 2011.

Kadian Mighty is a citizen of Jamaica. He arrived in the United Kingdom on 4 December 1992 and was given 6 months’ leave to enter as a visitor. Thereafter, he made various unsuccessful applications for leave to remain. On 10 February 2003, however, he was granted indefinite leave to remain. He had been convicted of a number of offences, including possession of a Class A drug with intent to supply, for which on 27 June 2003, he was sentenced to 42 months’ imprisonment. Following his release on licence, he committed a driving offence and was recalled to prison. He was finally released on 31 March 2006. On 10 May 2006, the Secretary of State informed Mr Mighty of his intention to deport him under section 3(5)(a) of the 1971 Act. On 19 May 2006, he was detained pending deportation because he was likely to abscond and his release was not conducive to the public good. He was released on bail on 28 July 2008.

Schedule 3 of the 1971 Act provides, so far as material:

“2.

(1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.

(1A) Where--

(a)

a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and

(b)

he appeals against his conviction or against that recommendation,

the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation.

(2)

Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3)

Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)”.

Between April 2006 and 9 September 2008, the Secretary of State’s published policy on detention of FNPs under her immigration powers was that there was a “presumption” in favour of release, although detention could be justified in some circumstances. In fact, during this period the Secretary of State applied a quite different unpublished policy which was described as a “near blanket ban” by the Secretary of State, Ms Jacqui Smith, to the Prime Minister, Gordon Brown, on 19 September 2007 in a document entitled “Bail Proposal for Foreign National Prisoners” in which she said:

“Since April 2006, the BIA [(“the Border and Immigration Agency”)] has been applying a near blanket ban on release, regardless of whether removal can be achieved and the level of risk to the public linked to the nature of the FNP’s original offence. By currently having no discretion to grant bail, the BIA has to regularly transfer FNPs around the Estate.”

On 9 September 2008, the Secretary of State published a policy which included a “presumption” of detention and withdrew all references to a presumption of release. On 22 January 2009, following the decision of Davis J in the current proceedings, this policy was amended again to omit the reference to a presumption of detention and substitute a policy in favour of release from detention. It will be necessary to describe the policies and practices adopted from time to time in more detail later in this judgment.

The proceedings

Mr Lumba issued proceedings on 18 October 2007. He challenged the lawfulness of his detention on the grounds that he was no longer being detained pending deportation and that his continued detention was in breach of the principles stated by Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 (“the Hardial Singh principles”). He also claimed a declaration that his detention was unlawful, a mandatory order that he be released and damages. On 4 July 2008, Collins J gave an interlocutory judgment on part of the claim: [2008] EWHC 2090 (Admin). He did not make a decision in relation to Mr Lumba’s past detention and reserved for a further hearing inter alia the questions of whether the operation of an unpublished policy had been unlawful and the past detention had been unlawful as a consequence. On 28 July 2008, Mr Lumba’s claim was joined to four other cases in which the same points arose. One of these was the claim of Mr Mighty which had been issued on 29 May 2008.

The five cases were heard by Davis J on 11-14 November 2008. In an impressive judgment given on 19 December 2008 [2008] EWHC 3166 (Admin), he granted the claimants declarations that (i) paragraph 2 of Schedule 3 to the 1971 Act prohibits the Secretary of State from operating any policy in relation to the detention of FNPs which contains a presumption in favour of detention and (ii) it was unlawful for the Secretary of State to operate the policy introduced in April 2006 in that it was not sufficiently published or accessible until its publication on 9 September 2008. He dismissed the other claims, in particular the claims for damages for unlawful detention.

The appellants appealed and the Secretary of State cross-appealed against the first declaration. In a judgment of the court delivered by Stanley Burnton LJ, the Court of Appeal (Lord Neuberger MR, Carnwath and Stanley Burnton LJJ) ([2010] 1 WLR 2168) allowed the cross-appeal and set aside the first declaration. They also varied the second declaration. Otherwise the appeals were dismissed.

The issues

The principal issues are as follows. (i) Were the detention policies that were applied to the appellants after April 2006 unlawful because (a) they were blanket policies (para 21 below) and/or (b) they were inconsistent with the published policies (para 26 below) and/or (c) they were not published policies (paras 27-38 below) and/or (d) they contained a “presumption” in favour of detention (paras 40-55 below)? (ii) If unlawful policies were applied to the appellants, was their detention unlawful in consequence (paras 56-89)? (iii) If their detention was unlawful, are the appellants entitled to more than nominal damages (paras 90-101 below)? (iv) Is Mr Lumba entitled to damages for unlawful detention on the grounds that, in his case, there has been a breach of the Hardial Singh principles? (paras 102-148 below) (v) Are the appellants entitled to an award of exemplary damages (paras 150-168 below)?

The policies in more detail

The published policies

The “presumption” of release had been entrenched in the Secretary of State’s published policies since at least 1991. It appeared in the White Paper Fairer, Faster and Firmer: a Modern Approach to Immigration and Asylum (1998) (Cm 4018), which was published in 1998 and again in 2002 in the White Paper Secure Borders, Safe Haven: Integration Diversity in Modern Britain (2002) (Cm 5387) which stated at para 4.76:

“Our 1998 White paper set out the criteria by which Immigration Act powers of detention were exercised and confirmed that the starting point in all cases was a presumption in favour of granting temporary admission or release. The criteria were modified in March 2000 to include detention at Oakington Reception Centre if it appeared that a claimant’s asylum application could be decided quickly. The modified criteria and the general presumption remain in place.”

Chapter 38 of the Operational Enforcement Manual (“OEM”), which was a published document in force until April 2008, stated in its introductory section that the 1998 White Paper confirmed that “there was a presumption in favour of temporary admission or release and that, whenever possible, we would use alternatives to detention”. Para 38.3 stated:

“1.

There is a presumption in favour of temporary admission or temporary release.

2.

There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.

3.

All reasonable alternatives to detention must be considered before detention is authorised.”

Identical wording was contained in Chapter 55 of the Enforcement Instructions and Guidance (“EIG”) which replaced Chapter 38 of the OEM and came into force on 19 June 2008.

On 9 September 2008, Chapter 55 of the EIG was amended. With regard to FNPs, para 55.1.2 stated:

“Due to the clear imperative to protect the public from harm and the particular risk of absconding in these cases, the presumption in favour of temporary admission or temporary release does not apply where the deportation criteria are met. Instead the person will normally be detained, provided detention is, and continues to be lawful.”

The EIG then gave guidance to caseworkers as to the factors which might make further detention unlawful. In particular, it stated that the presumption of detention “will be displaced where legally the person cannot or can no longer be detained because detention would exceed the period reasonably necessary for the purpose of removal.” Following the decision of Davis J in the current proceedings, on 22 January 2009 this policy was changed again so as to replace a presumption in favour of detention with a presumption in favour of release from detention.

The unpublished policies

The true picture during the period from April 2006 until September 2008 was very different. Following the public disclosure on 25 April 2006 that 1,013 FNPs had been released from prison before consideration had been given to the question of whether they should have been deported, the Secretary of State adopted a new policy which he did not publish. I have already referred at para 5 above to the description of it contained in the 19 September 2007 Bail Proposal as a “near blanket ban”.

The policy of blanket detention admitted of exceptions only on compassionate grounds. No formal guidance was given to caseworkers to give effect to this policy until on 8 November 2007 they were issued with a document (known as “Cullen 1”) which set out criteria and guidance for the identification and release of FNPs who were considered to pose the lowest risks to the public and the lowest risks of absconding. Cullen 1 was not published to the outside world. It led at most to the release of a handful of FNPs. In March 2008, an amended guidance document (known as “Cullen 2”) was issued to the caseworkers. It too was not published to the outside world. Attached to Cullen 1 and Cullen 2 was an extensive list of offences entitled “List of recorded crimes where release from immigration detention or at the end of custody will not be appropriate”. In practice, almost all FNPs who had been sentenced to imprisonment were likely to have committed one or more of such offences. Both Mr Lumba and Mr Mighty had done so. The evidence of David Wood, Strategic Director of the Criminality and Detention Group, was that between December 2006 and July 2008, 15 FNPs were released from detention.

On 22 May 2008, the existence of an unpublished policy or practice was belatedly disclosed by the Secretary of State to Mitting J after he had given judgment in the case of R (Ashori) v Secretary of State for the Home Department [2008] EWHC 1460 (Admin). More detail as to the circumstances in which the policy came to be disclosed is given by Davis J at paras 21 to 26 of his judgment.

The unpublished policies were applied to Mr Lumba and Mr Mighty

It is now common ground that the unpublished policies were applied to the two appellants throughout their detention. It is, therefore, unnecessary to consider para 203 of the judgment of Davis J (where the judge stated that there was nothing to show that Mr Lumba was detained by application of the unpublished policy) or para 100 of the judgment of the Court of Appeal which upheld Davis J on this point.

Were these policies unlawful?

Here too, there is little dispute between the parties. Mr Beloff QC rightly accepts as correct three propositions in relation to a policy. First, it must not be a blanket policy admitting of no possibility of exceptions. Secondly, if unpublished, it must not be inconsistent with any published policy. Thirdly, it should be published if it will inform discretionary decisions in respect of which the potential object of those decisions has a right to make representations.

As regards the first of these propositions, it is a well established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers. Davis J held that the unpublished policy was not a “blanket” policy. The Court of Appeal disagreed. Basing themselves on the review by David Wood “of the failure to publish a revised FNP detention policy following the April 2006 crisis” approved on 3 August 2009, the Court of Appeal concluded that the policy, as applied at least from the time of Cullen 1 in November 2007, “effectively operated on a blanket basis” rather than (as held by the judge) “one of presumption”. I agree with this assessment by the Court of Appeal but would go further. It seems clear to me that a blanket policy was also applied from April 2006 until the introduction of Cullen 1 in November 2007. During this earlier period, the only exceptions made to the policy of universal detention were on compassionate grounds and these were few and far between. Importantly, there were no releases on the basis of Hardial Singh principles. Indeed, Cullen 1 represented a modest relaxation of the previous position.

It is convenient to introduce the Hardial Singh principles at this stage, since they infuse much of the debate on the issues that arise on this appeal. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 para 46 correctly encapsulates the principles as follows:

(i)

The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii)

The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii)

If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

(iv)

The Secretary of State should act with reasonable diligence and expedition to effect removal.

Lord Phillips says that the first two of these principles cannot properly be derived from Hardial Singh. Since their correctness has not been put in issue by the parties to these appeals, I propose to deal with the points shortly. As regards the first principle, I consider that Woolf J was saying unambiguously that the detention must be for the purpose of facilitating the deportation. The passage quoted by Lord Phillips includes the following: “as the power is given in order to enable the machinery of deportation to be carried out I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose”(emphasis added). The first principle is plainly derived from what Woolf J said.

As for the second principle, in my view this too is properly derived from Hardial Singh. Woolf J said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases where it is apparent that deportation will not be possible “within a reasonable period”. It is clear at least from (iii) that Woolf J was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation.

It seems to me that, in relation to both the first and second principles, Lord Phillips is suggesting a different interpretation of paragraph 2(3) of Schedule 3 to the 1971 Act from that enunciated by Woolf J. I do not agree with this interpretation. But what is perhaps of more importance in the context of these appeals is that in my view it is not appropriate to depart from a decision which has been followed repeatedly for almost 30 years unless it is obviously wrong (which I do not believe to be the case), still less to do so without the benefit of adversarial argument.

As regards the second proposition accepted by Mr Beloff, a decision-maker must follow his published policy (and not some different unpublished policy) unless there are good reasons for not doing so. The principle that policy must be consistently applied is not in doubt: see Wade and Forsyth Administrative Law, 10th ed (2009) p 316. As it is put in De Smith’s Judicial Review, 6th ed (2007) at para 12-039:

“there is an independent duty of consistent application of policies, which is based on the principle of equal implementation of laws, non-discrimination and the lack of arbitrariness.”

The decision of the Court of Appeal in R (Nadarajah) v Secretary of State for the Home Department [2003] EWCA Civ 1768, [2004] INLR 139 is a good illustration of the principle. At para 68, Lord Phillips MR, giving the judgment of the court, said that the Secretary of State could not rely on an aspect of his unpublished policy to render lawful that which was at odds with his published policy.

As for the third proposition, the Court of Appeal dealt with the issue of whether there is a general rule of law that policies must be published at paras 70 to 79 of their judgment. Disagreeing with Davis J, they concluded that there is no such general rule and said that the fact that the appellants were detained pursuant to unpublished policies was not in itself a reason for holding that the decisions to detain them were unlawful. Mr Beloff did not feel able to support this conclusion. It is unfortunate that the Court of Appeal embarked on this topic at all, since it was not before them and was not, therefore, the subject of argument or citation of authority. As the point is of general importance, I need to say why in my view the judge was right and the Court of Appeal were wrong on this issue both as a matter of common law and ECHR law.