Liverpool Hope University College, R (on the application of) v Secretary Of State For Education & Employment

The commencement of a statutory prohibition may lawfully be timed to address an identified public mischief, even though some affected institutions would prefer further time to qualify for an exemption or approval. A ministerial statement that implementation will follow a reasonable interval does not promise a period in which every institution can secure substantive approval where the statement, read in context, refers to allowing compliance with the prohibition.

Substantive unfairness requires conspicuous unfairness in exceptional circumstances. Where legislation follows extensive consultation and addresses continuing public confusion, disappointment and transitional expense do not ordinarily meet that threshold. Proportionality requires a legitimate aim, suitability and the absence of a less restrictive means of achieving the same result. Express consideration of Treaty rights is not essential if the decision, examined objectively, satisfies those requirements.

Liverpool Hope University College sought judicial review of the decision to bring into force on 1 February 1999 the prohibition in Teaching and Higher Education Act 1998, s 39, on educational institutions using names containing the word university without authorisation or approval.

The institution argued that implementation was premature because it had not been given a realistic opportunity to obtain taught degree-awarding powers and Privy Council approval for the title university college. It relied on alleged parliamentary and departmental assurances, substantive unfairness and interference with Treaty rights. Mr Justice Newman dismissed the application on all three grounds. The Court of Appeal considered whether the commencement date frustrated Parliament’s intention, was substantively unfair or was disproportionate.

1. Appeal dismissed. The court held that the relevant statutory purpose was to end confusion caused by institutions using names to which they were not formally entitled. The Dearing recommendation was for action as soon as possible. There was a heavy presumption that Parliament intended the legislation to give full effect to that recommendation.
2. The minister’s statement that the prohibition would be brought into operation after a reasonable interval to allow institutions to take it into account referred to allowing institutions to comply with the prohibition, including by changing their names. It did not promise sufficient time to obtain taught degree-awarding powers and subsequent approval. Section 46(4) conferred a discretion as to commencement and did not require a sequential process under ss 39 and 40.
3. The implementation decision was not substantively unfair. The absence of a legitimate expectation was not conclusive, but substantive unfairness required conspicuous unfairness and exceptional circumstances. The policy had been preceded by extensive consideration and consultation, and the appellant’s difficulties arose substantially from its own decision to continue using an unauthorised name despite the developing policy.
4. The Treaty-rights challenge failed. The restriction pursued the legitimate aim of preventing confusion and was capable of achieving it. The Department had considered transitional alternatives and was entitled to reject them because delaying the prohibition would prolong the mischief and there was no fair, ready means of distinguishing institutions said to be worthy from those that were not.
5. Although the decision-maker had not expressly referred to Treaty rights, the court could examine the decision objectively to determine whether Community-law proportionality requirements had nevertheless been met. They had been met. The appeal was dismissed with costs, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): appeal from the dismissal of the judicial-review application by Mr Justice Newman. Appeal dismissed with costs; permission to appeal to the House of Lords refused.