Wednesday, 12 September 2012

London Met Again

Last week’s post about London Metropolitan leaped almost instantly into my top-ten of all time, as measured by pageviews. Not that it takes a whole lot of pageviews to achieve that in my case, but it is enough to persuade me to write a follow-up post.

Most people will be aware that London Met has taken legal action against the UKBA. The form of this legal action will take is judicial review. Judicial review is a process which does exactly what it says on the tin: the decision taken by a public body (in this case the UKBA) is reviewed by a judge. There is no nonsense here with a jury. If the judge determines, on review, that the decision was wrong he (or she, but as this is an English judge we are talking about, almost certainly he) may quash it.

Now in principle the judge does not reconsider the decision on its merits and there are only three reasons for which, on review, the judge may decide to quash the public body's decision. These are:
  • The decision was illegal (typically because the public body has not correctly applied the law it is supposed to enforce);
  • The decision was unreasonable. In principle, the standard for unreasonableness is very high: if the judge can imagine any reasonable person taking such a decision, then it is not ‘unreasonable’;
  • Procedure was not properly followed. This often happens where, for instance, a decision was taken by the wrong official in the public body, or ratified by the wrong committees.
However in practice this is far from the case. These three points have little or nothing to do with who ‘wins’ the case, and the judge's view of the merits is very important. When Queen Mary took HEFCE to judicial review about the repayment of a sum of research funding the judge found that procedure had not been properly followed because the wrong person had taken the decision: so Queen Mary ‘won’. However the only action the judge took was to require HEFCE to take the decision again. He did nothing to prevent them reaching the same decision again, and indeed if they bothered to read his judgement (which, at a guess, they probably did) they would have seen that he approved of the substance of their decision. 

This means that in judicial review, judges have very substantial leeway to ensure that the outcome of the case is aligned to their concepts of justice. You know what liberal milksops these judges are.  In a case like London Met’s one may well allow his feelings for the thousands of perfectly legitimate international students who have had their study thrown into disarray mere days before the start of term to affect his view of the case, even though an objective person would see at once that every single one of these alleged ‘students’ was a foreigner.

Now it rarely happens that a decision is taken with such care and precision that no weakness of law or procedure can be detected by an alert judge. You get to be a judge by being much better at law and procedure than the average quangocrat. Moreover the UKBA is not widely famed for its administrative efficiency, as you can see from this judgement where it got confused between the rules it exists to implement, and the guidance it gives about those rules, or indeed this Parliamentary enquiry.

So there is every reason to think that London Met’s legal case is not a hopeless one. In the meantime, continuing students may find that they can remain on the programmes after all, although perhaps not for the whole academic year.This may give students a longer period to seek an alternative institution. although it may also mean a longer period of uncertainty for those who are hoping to remain at London Metropolitan.

The other legal question is whether the students affected by this business are in any position to sue anyone for damages. This is not really my area of expertise, but David Palfreyman has been quoted in the Higher to the effect that they almost certainly can. Presumably the outcome of London Met's case against the UKBA will help to determine who gets sued by the students.

This will all take a long time to work itself to a conclusion.

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