The Queen (on the application of O) v Secretary of State for International Development
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 14 July 2014 |
| Neutral Citation | [2014] EWHC 2371 (QB) |
| Date | 14 July 2014 |
| Court | Queen's Bench Division |
| Docket Number | Case No: CO/676/2014 |
[2014] EWHC 2371 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: CO/676/2014
Ms Jessica Simor QC and Mr Nikolaus Grubeck (instructed by Leigh Day) for the Claimant
Mr James Eadie QC and Ms Naina Patel (instructed by the Treasury Solicitor) for the Defendant
Hearing date 3 July 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application for permission to apply for judicial review of the conduct of the Secretary of State for International Development in connection with the grant of development assistance to Ethiopia under Section 1 of the International Development Act 2002.
The Claimant is an Ethiopian citizen who claims to have been a victim of human rights abuses perpetrated in the course of an Ethiopian Government programme for the resettlement of individuals from rural communities in new and larger "communes". This programme is known officially as the Commune Development Programme ("CDP") but also known as "villagisation". It is said to involve forced internal relocation and consequent or related human rights violations. Following what he says is brutal treatment at the hands of State actors in the course of this programme in 2012 the Claimant fled to Kenya, it is said, leaving his family in Ethiopia. The Claimant alleges that he is far from being alone in suffering in this way, and refers to evidence gathered by human rights organisations and NGOs of widespread human rights abuses in Ethiopia in the context of the villagisation programme and otherwise.
The Claimant maintains that UK development assistance money provided by the Defendant to the Ethiopian Government contributes to such human rights violations, including those allegedly carried out in connection with the villagisation programme from which he claims to have suffered. He alleges, in particular, that there is evidence that the villagisation programme is partly funded by payments made by the Defendant and others into a programme called the Promotion of Basic Services Programme ("PBS"). The PBS is a very large programme, currently in its third phase, with a budget of some £510 million allocated until the end of January 2018. It aims to channel money to regional and district governments.
The grant of development assistance under s 1 of the Act of 2002 is governed by policies set out in a policy paper of 2005, in the production of which the Defendant participated, entitled Partnerships for Poverty Reduction: Rethinking Conditionality. These policies acknowledge the need for governments which are partners in the grant and receipt of aid to respect and uphold human rights, and the need for the UK government as a donor to reconsider aid decisions if recipient countries are found to be in significant violation of human rights. A "How to note" of 2009 sets out guidance on the implementation of such policies, including the methodology by which compliance with human rights is to be assessed. The Defendant's policies also contain provision as to transparency. Commitments to transparency and accountability are reflected in the 2005 paper, the "How to note" of 2009, and the Defendant's "Open Data Strategy April 2012 – March 2014".
It was against that background that between 2012 and 2014 the Claimant's solicitors corresponded with the Defendant complaining of a failure to apply properly or at all her policies on conditionality and transparency and, on 14 February 2014, the Claimant issued these proceedings. The claim advances two grounds of challenge. First, it is alleged that the Defendant has failed to have in place any sufficient process to assess Ethiopia's compliance with the express conditions for receiving UK aid which are mentioned above, or to follow any such process, or both. Secondly, the Claimant alleges that the Defendant has acted unlawfully in refusing to make her assessment public, in breach of her stated policies on transparency.
The first ground is focused on the Defendant's most recent Partnership Principles Assessment in relation to Ethiopia, dated November 2013 ("the PPA"). This is a substantial document setting out, among other things, details of evidence assembled as to the Ethiopian Government's human rights record, assessments of that evidence, and conclusions as to the actions to be taken by the Defendant, based upon that assessment. Extracts of the PPA were sent to the Claimant's solicitors on 19 November 2013 under cover of a letter of from the Treasury Solicitor, acting on behalf of the Defendant. The Claimant's second ground of challenge arises from a further letter from the Treasury Solicitor dated 10 December 2013 by which the Defendant made clear that she objected to the extracts of the PPA which she had provided earlier being put into the public domain.
The relief sought by the Claimant is first, a declaration that the Defendant has acted unlawfully in failing to have or to apply a proper assessment process so far as Ethiopia's compliance with human rights is concerned, and secondly an order requiring the publication of the most recent assessment of Ethiopia's compliance, namely the PPA of November 2013. No challenge is made, and no relief is sought, in respect of any decisions by the Defendant to grant aid to Ethiopia.
On 26 March 2014 the Defendant filed an Acknowledgment of Service and Summary Grounds of Resistance. The Grounds of Resistance assert that significant parts of the claim are out of time, that the Claimant does not have standing to bring the claim, and that in any event there is no properly arguable basis for any aspect of the claim. When the papers came before Nicola Davies J on 2 May 2014 she granted the Claimant anonymity and directed that the application for permission be adjourned into court for oral hearing, observing that besides the general merits two preliminary points required determination: whether parts of the challenge were out of time, and the legal standing of the Claimant to bring the claim. Nicola Davies J noted that no Witness Statement had been filed on behalf of the Claimant.
Subsequently, on 1 July 2014, a Witness Statement was filed in the name of the Claimant. Unsigned and undated, it had been confirmed by telephone by the Claimant whom I was told does not read or write. Its contents reflected broadly what had been alleged in the Statement of Facts and Grounds accompanying the Claim Form. The matter then came before me on 3 July 2014 for consideration of the three issues then arising: the time issue, the standing issue, and the question of whether the claim was arguable on its merits.
Time
This aspect of the case proved uncontroversial in the event. The Claimant's Grounds made reference to documents of earlier dates than the November 2013 PPA. Mr Eadie QC explained that for this reason the Defendant had put a marker down, to ensure that she could not be suggested that some free-standing ground of challenge arose, based on earlier decisions. Ms Simor QC made clear that the Claimant's challenge related only to the November 2013 PPA. That assessment made reference to information contained in other, earlier documents. It is only in that respect, however, that the Claimant relied on such documents. None of the earlier matters are separately challenged.
Standing
Legal principles
The right to seek judicial review of administrative action is governed by s 31 of the Senior Courts Act 1981. Section 31(3) provides that:-
"No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates."
The requirement of a sufficient interest is a jurisdictional threshold, and whether a person has a sufficient interest is a matter of judgment, not a matter of discretion. It is also clear, however, that the sufficient interest requirement is one which allows the court "to decide what in its own good judgment it considers to be a 'sufficient interest' on the part of [a claimant] in the particular circumstances of the case before it": R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses [1982] AC 617, 642per Lord Diplock. The test excludes a claimant who is a mere "busybody" (ibid. 646 per Lord Fraser) but is otherwise liberal and inclusive. Standing ought not to be treated narrowly, as a preliminary issue, but should be assessed in the legal and factual context of the whole case: R v Secretary of State ex parte World Development Movement [1995] 1 WLR 38, 395E-396A. Thus, where the circumstances justify it, the court has been ready to recognise standing on the part of persons and organisations who cannot demonstrate that they are directly and individually affected by an administrative measure, such as NGOs and representative bodies.
The requirement of standing to seek judicial review has been recently considered by the Supreme Court in two Scottish cases, AXA General Insurance Ltd & Ors v HM Advocate & Ors [2011] UKSC 46, [2012] 1 AC 868 and Walton v The Scottish Ministers [2012] UKSC 44. It was common ground that these cases, whilst dealing with the supervisory jurisdiction in Scottish law, are to be treated as giving authoritative guidance on the English law requirement of standing. In Walton Lord Reed summarised the position in this way:
"90 In AXA...
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