Whitston (Asbestos Victims Support Groups Forum UK), R (On the Application Of) v Secretary of State for Justice

Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 48 required a proper review of the likely effects of sections 44 and 46 on mesothelioma claims. It prescribed no particular procedure, so consultation could be used. However, the exercise had to be specifically capable of identifying those likely effects. A consultation framed on the assumption that other reforms would be implemented did not satisfy that statutory duty when those reforms were subsequently abandoned. The court assesses the adequacy of the review objectively. A general consultation-law test is not automatically applicable where the statutory task is a review rather than consultation on proposed measures.

The claimant, representing asbestos victims’ support groups, sought judicial review of the Lord Chancellor’s decision to bring sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 into force for mesothelioma claims. Section 48 required a review of the likely effects of those provisions before commencement. The claimant argued that the review and consultation were inadequate and that a ministerial statement created a procedural legitimate expectation. The central issue was whether the review undertaken through a consultation exercise complied with section 48.

1. Section 48 was clear. It required a review of the likely effect of sections 44 and 46 on claims for damages for diffuse mesothelioma. It did not prescribe the review’s form or require a particular outcome. The Lord Chancellor therefore had discretion as to method, but the review had to be proper and sufficiently specific to identify the likely effects on mesothelioma claims.

2. Parliamentary material was unnecessary and unlawful as an aid to construction because the statutory language was not ambiguous or obscure. The legislative setting could nevertheless be considered. The statements relied on by the claimant did not create a legitimate procedural expectation because they were not an unequivocal assurance as to the review’s nature.

3. A consultation was a permissible means of conducting the review. The court assessed the consultation objectively, considering the document as a whole. Responses were relevant evidence but could not determine whether the statutory standard was met.

4. The consultation did not enable the required review. Paragraphs 72 and 73, and question 15, linked the assessment of sections 44 and 46 to proposed reforms and invited views on that combined basis. The later decision not to pursue those reforms meant that the premise on which consultees had been invited to respond no longer applied. General monitoring and the absence of reports of difficulty did not amount to a positive, particular review.

5. The failure was substantive rather than technical. The court could not conclude that a proper review would inevitably have produced the same result. The claim therefore succeeded. The court’s preliminary view was that a declaration should be made that the Lord Chancellor had failed to conduct the review required by section 48, with the statutory consequence that sections 44 and 46 could not be brought into force for diffuse mesothelioma proceedings. The precise form of relief was reserved.

First-instance judicial review. Permission was granted by Mrs Justice Thirlwall on 12 May 2014. The judgment describes no prior merits decision.