A blow against the "alternative remedies" excuse

The UK Supreme Court makes it far harder for regulators to avoid performing their public law duties

Not all cases of constitutional import involve the high drama of cheering campaigners and disappointed ministers - or of cheering ministers and disappointed campaigners.

But the cases set out what is constitutionally proper and improper all the same.

Last Wednesday to relative media silence (other than in local media) the Supreme Court handed down its decision in a Northern Ireland case about appropriate legal action for a complainant to take so as to prevent harmful chemical gases and noxious smells escaping from a waste disposal site.

This is perhaps not the most glamorous set of facts for any legal case - and this is perhaps a pity, as the Supreme Court decision asserts a point of fundamental constitutional importance: about the ability of a person to access the courts for judicially reviewing public bodies not doing their regulatory job.

*

By way of background, there is an excuse which is deployed again and again by public bodies seeking to escape being taken to court for judicial review.

(In general terms, judicial review is the process by which a court will decide whether a public authority is correctly exercising its legal powers.)

The excuse is that the complainant has to “exhaust other remedies” as judicial review “is the remedy of last resort”.

*

In this case, the complainant Mrs McAleenon was told that she could not go to court to get public bodies to properly regulate what was going on at a waste disposal site.

On the face of it, the local council and the Northern Irish Environment Agency and the Northern Ireland department of Agriculture, Environment and Rural Affairs all had powers to do something about it:

But the complainant (and other local people) believed that these public bodies were not doing what they should be doing about the problem.

And it was a problem - this was certainly not a trivial issue:

One would think that this was a straightforward position: some local people had a problem, and there were public bodies who could and should do something about problem.

This would seem to be as basic a situation for modern public law and administration as one can conceive.

The public authority regulator should do its regulatory job.

*

But for Mrs McAleenon and her neighbours it was not a straightforward position.

When she threatened to take the public bodies to court so as to make them perform their public duties, she was told that she could not do this.

Instead, she was told that she had to do other, far more risky and expensive legal things first.

She was told by the public bodies, seriously, that judicial review should be not be available because she had “adequate alternative remedies”, in that she could herself launch a private prosecution against the owner of the waste disposal site, or could bring nuisance claim against the owner of the site.

Mrs McAleenon applied for judicial review anyway, and at first instance the court sided with her.

But then the public bodies appealed and the Northern Irish court of appeal went against her in a detailed judgment.

The appeal judges ruled that “there were two alternative remedies open to the appellant to provide her with the relief she required if her claims are correct, namely cessation of the alleged nuisance on the Site.  Each of these remedies, we find, offered her the opportunity of obtaining relief against the alleged wrongdoer”.

She should not be able to go to court against the regulator, the judges said, because her real complaint was against the site.

Mrs McAleenon applied to appeal to the Supreme Court, and she was given permission.

*

One issue in the case was that there were disputes over facts and contested evidence - and judicial reviews usually do not deal with factual disputes and contested evidence. Judicial reviews are normally about pure issues of law in respect of agreed facts. As such, cross-examination of witnesses and competing expert reports and so on are rare in judicial reviews.

This looks as if it may have influenced the appeal judges - as other legal procedures were more used to assessing evidence at trial.

But it is entirely open to a judicial review court to deal with factual and evidential conflicts.

*

The Supreme Court took the view that judicial review should not be refused just because there were factual and evidential conflicts.

But the Supreme Court went far further than this, and said - in effect - that for Mrs McAleenon the availability of criminal and private law procedures were not even alternative remedies in the first place.

In essence, when the complaint is against a public body as a regulator, it is irrelevant that the complainant may also have a remedy against a party that is not being properly regulated.

In two key paragraphs, the Supreme Court set out the public importance - and public benefits - of the complainants having access to judicial review against regulators:

The Supreme Court also made the point that access to an Ombudsman may not also be an adequate alternative legal remedy:

This dicta should please those who (correctly) are concerned about the general ineffectiveness of the Ombudsman system.

*

The Supreme Court remitted the case back to the Northern Irish court of appeal for it to be properly decided.

This is the press release from the successful appeal solicitors Phoenix Law, who should be congratulated for a great piece of appellate work on a crucial if unglamorous issue:

*

This case may have significant implications across regulatory law, both in respect of environmental issues and otherwise.

The decision strengthens the “public” element of public regulation.

Regulated entities already often have rights of appeal as well as access to judicial review. (And many regulated entities often seem to have “captured” their regulator and have established cosy relationships.)

But members of the public who are unhappy with how the regulator is performing its public duties are now in a stronger position.

No longer can such complainants be palmed-off and-waved away by the regulator with the message that they should just directly sue - or prosecute - the regulated entity bothering them.

No longer can they just be told that they should - at great expense and risk - first exhaust “alternative remedies” and not bother the regulator.

Complainants now have Supreme Court authority for being able to go to court to get regulating public authorities to do their jobs properly.

*

There is a great deal of discussion about whether the Supreme Court of the United Kingdom is small-c conservative or not.

But this case, perhaps together with the 2021 Majera case, show that when it comes to the province of judicial power, the Supreme Court will firmly assert and defend the proper role of the courts in our political system.

For not all cases of constitutional importance, limiting what the executive in its various forms can get away with doing and not doing, are glamorous actions about high politics.

Sometimes they are about other, more mundane noxious things.

***

Direct links (as Bailii links can be problematic on some apps):

Supreme Court decision: https://www.bailii.org/uk/cases/UKSC/2024/31.html

Northern Irish Court of Appeal decision:

https://www.bailii.org/nie/cases/NICA/2023/15.html

2021 Majera decision:

https://www.bailii.org/uk/cases/UKSC/2021/46.html