The first casualty of law?

The first casualty of law?


Truth is usually the first casualty of war.  But in the ill-tempered skirmishing within the Coalition ahead of introduction of the Energy Bill, it’s law not war that appears to have claimed its first victim. John Hayes, Conservative MP for South Holland and Minister of State for Energy, is effectively number two to Secretary of State Ed Davey.  Only Davey clearly wishes he wasn’t.  Earlier in November, Hayes, playing to the anti-wind gallery, told Channel 4 News that he regarded onshore wind as “job done” – that is, currently installed capacity, plus projects consented to date, made enough of a contribution to the Government’s renewables targets to justify drawing a line.  No new onshore wind projects, said Hayes, while implying that the Prime Minister agreed with him.

Davey, predictably, was furious.  When the shape of the Coalition’s deal on energy policy was announced on 23 November, The Guardian  reported how Davey had stripped Hayes of responsibility for renewable energy strategy. “When he made his statements on renewables against coalition policy”, Davey told the paper, “I asked the legal department here whether there was a danger John had prejudiced himself because he had made these statements, and they said there was a danger. They said they could not say it would end up in judicial review, and challenging decisions in which he was involved, but there was a greater potential danger.”  Davey revealed that he had also invited the Prime Minister to consider whether Hayes should have any renewables responsibility, but had received no reply: “I can only assume”, concluded Davey, that “he has decided the legal risk is quite small.”

So: how real was the “danger” Davey claims DECC legal perceived?  The courts recognise that careless talk by a decision-maker risks creating an appearance of predetermination – that is, a reasonable and informed observer would think the decision-maker’s mind was made up before both sides have been properly heard.  The House of Lords recognised this as a form of bias in Porter v. Magill, though rejected the allegation that the District Auditor’s robust remarks about his provisional  findings against Dame Shirley meant he could not be relied on to conclude the proceedings impartially.  Since then, the courts have continued to recognise the concept of “apparent predetermination” in principle, but have steadfastly resisted almost every attempt to apply the principle in cases where the decision-makers are politicians rather than judges.

In R (Lewis) v. Redcar & Cleveland Borough Council  [2009] 1 WLR 83, the Court of Appeal considered a grant of planning permission for major redevelopment near the beach used for filming the Dunkirk scene in “Atonement”.  The High Court was persuaded to quash the permission on the basis that the Committee had been affected by apparent predetermination on the part of members of the Council’s controlling Coalition(!).  The Court of Appeal overturned that decision, ruling that politicians are elected to hold views – sometimes robust views — on matters of public interest, and only in the most extreme cases would a claim of apparent bias or predetermination succeed.

Significantly, Lewis has since been applied to a case about energy policy.  In R (Rory Walker) v. Secretary of State for Energy and Climate Change [2011] EWHC 2048 (Admin), a challenge was brought to the decision by then Secretary of State Chris Huhne to grant Regulatory Justification Approval for the two reactor types destined for use in the civil nuclear energy programme.   Members of Thirty Nine’s energy team were heavily involved in the case: Gordon Nardell QC and Richard Wald appeared for Mr. Walker, while Stephen Tromans QC and Zack Simons appeared for the Nuclear Industry Association which was joined as interested party.  Mr. Walker argued that in view of Huhne’s strong publicly recorded support for nuclear power, he could not be relied on to deal impartially with the regulatory justification issue.   The High Court refused permission to proceed with the claim, finding in the light of Lewisthat “there was nothing objectionable on bias grounds” in the decision resting with Mr. Huhne.  The Court of Appeal refused permission to appeal.

So: how credible is the suggestion that Mr. Hayes’ remarks could have disqualified him, in the eyes of a court, from taking decisions in his former strategic role?  In the wake of Lewis and Walker, it’s very hard indeed to imagine circumstances in which a claim for judicial review of some future decision could succeed.  Decisions about strategy, rather than deployment of individual schemes, are inherently political and all the harder to attack on apparent bias or predetermination grounds.

The likely truth is that Hayes was a victim of war – or at least low-level hostilities between the fractious Coalition partners – rather than law.

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