How public should Public Law be?
Judicial review cases involve investigations by the courts into the workings of our public services. Is it right that the two sides should be able to agree to keep the court’s findings secret?
Consider this. A government body makes a decision, possibly wrongly, that adversely affects the career of a newly-qualified teacher. She is naturally upset and challenges that decision, ultimately having to take the case to the High Court for judicial review. The judge listens carefully to both sides and adjourns the final decision to think about it. That decision will be handed down in a further hearing at a later date. Or will it?
The common practice in this situation is for the judge to send out his judgment in draft to the parties before formally handing it down in open court. This allows the parties to pick up any obvious errors, for example getting the names of the parties the wrong way around or typographical errors. The decision itself cannot be changed, but the actual judgment does not become public knowledge until it is read out in court. The draft judgment is under embargo – the contents must not be revealed to anyone else and to do so would be a contempt of court.
From the draft, it becomes clear to the parties that the teacher is going to win. The defendant government body is convinced that the judge has made a mistake in his decision. They are going to have to appeal because it is important that the decision should not set a precedent. That is going to incur a lot more legal costs for both sides, and if the department wins, the newly-qualified teacher is going to be facing a huge liability in respect of the department’s legal costs.
The parties therefore do a deal. They settle, but on condition that the judgment is not actually handed down in open court, i.e. it stays secret between the two sides. They therefore jointly ask the judge to agree to that arrangement. Should he agree?
Needless to say, the interests of the parties are not the only consideration here – this is after all an examination by the court of the decisions of public officials. The ramifications go well beyond just the complainant herself; they may well impact upon similar decisions taken in respect of other teachers all over the UK. On the other hand, if the court doesn’t agree the settlement will fail and the newly-qualified teacher may find herself losing her settlement and facing an unaffordable costs liability if the government successfully has the case overturned on appeal.
Mr Justice Foskett found himself having to consider this very difficult balancing act recently in R v General Teaching Council for England (Defendant) (2013)  EWHC 2779 (Admin). He carefully examined the relevant factors in the case, including how the settlement options were proposed and discussed, whether any agreement could be reached whereby the defendant would not insist upon claiming its costs back from the complainant if they were successful on an appeal and how many other similar issues arise each year that would be affected by the decision he had made. His eventual conclusion was that in this particular case he would not release his judgment into the public domain, thereby allowing the carefully-negotiated settlement agreement to go ahead. He did so with very great reluctance and a clear awareness that as it becomes increasingly common for individuals to pursue judicial review cases themselves, this issue may become a more frequent one for the courts to have to consider. He was also keen to make it clear that the practice of handing down a draft judgment cannot be regarded by the litigants as the next step in the process of negotiating a settlement – in most cases, the judgment will have to be made public.
This was a very difficult decision for even this experienced judge, and it is not clear whether there really was a “right” answer. We may never know now what his intended original decision was, but clearly he had concluded that something had gone wrong in the decision-making process of the General Teaching Council. Don’t the public, and other teachers, have a right to know what that was?
The issue is far broader than the General Teaching Council. Judicial review is a process that applies to all aspects of the decision-making apparatus of the state – an important part of the checks and balances in the system. The workings of planning departments, licensing authorities, the UK Border Agency, the police and the NHS (to name but a few) can all be scrutinised in this way. The more extensive the implications of a decision, the less likely it is that any judge would agree not to hand down judgment, but the General Teaching Council case marks a development that the wider public (not to mention the press) will surely be concerned should not be allowed to become commonplace.