R (March) v Secretary of State for Health was a 2010 judicial review which challenged the UK Department of Health's decision not to implement Recommendation 6(h) of the Archer Independent Inquiry.[1]
The case was important in developing the doctrine of error of fact in public law which previously had not readily been the subject of judicial intervention.[2][3][4]
The contaminated blood and blood products disaster also occurred in the Republic of Ireland[1] and various compensation schemes and statutory provisions were put in place between 1991 and 2002 on compassionate grounds, without legal liability on the part of the state.[7] However, the level of payments made to similarly infected and affected people in the Republic of Ireland was considerably greater than payments made to victims in the United Kingdom. In the UK, the Department of Health had consistently refused to increase the ex gratia support payments to be on a par with the more generous levels of payments made in the Republic of Ireland, arguing that liability in the UK had never been established, whilst they claimed in Ireland there had been findings of fault.[5][8] This was found to be incorrect since the basis behind the Irish scheme was compassion, not fault.[9][10]
According to the Order handed down by the court, the decision at the centre of the judicial review could be found within a document entitled ″Government Response to Lord Archer’s Independent Report on NHS Supplied Contaminated Blood and Blood Products″.[11][12] The ministerial decision hinged on the refusal to adopt a key recommendation of the independent, non-statutory Archer Inquiry. In particular, Recommendation 6(h).[13] The rejected recommendation read as follows: ″We suggest that payments should be at least the equivalent of those payable under the scheme which applies at any time in Ireland.″[14]
I am satisfied that the government′s approach to recommendation 6 (h) has been, and remains, infected by an error.
— Mr Justice Holman
The March case demonstrates that the jurisdiction of the court extends to quashing a decision if the published reasons for the decision contain an error which is considered capable of making a material difference to the outcome of the decision – had the error in question not been made.[15] The sequence of events in Ireland were critical to this case. The Irish government had decided to make payments at a substantial level, very much like compensation, but strictly speaking ex gratia in nature, and they decided to do this before there was any finding of fault.[7] It was the Westminster government's stance on this that propagated the error.
There are a number of conditions which need to be met in order for the court to intervene:
There must be a demonstrable error to an existing fact;[16]
The error needs to be sufficiently established;[17]
The claimant and their legal advisors must not have been party to the error;[18]
The error of fact needs to be ″material″; in that there could have been an alternative decision ″but for the error″.[19]
Admissibility of evidence
The thrust of the case on behalf of the claimant is that the answers given by the minister on 23 June and 1 July, when considered separately or cumulatively, reveal a material error of fact on the part of the government as to the situation in Ireland; that that error undermines the reasoning process of the government in their decision to reject recommendation 6 (h); and, accordingly, that the government should be required to reconsider their response to recommendation 6 (h).
There was considerable scrutiny over the quality and type of evidence deemed admissible. The use of hansard was permitted by the court due to specific circumstances relating to the decision under review; in particular, the government's reasoning behind their decision. Justice Holman made a clear statement that the court could not go beyond the scope of what was reviewable and could not come to any conclusions about the proceedings of Parliament and whether they were in any way inadequate or inaccurate.[20]
Two answers were issued by the Minister of State at the Department of Health which were considered in turn by the court. A distinction was made out between the two due to the degree of preparation the minister was likely to have had. The first was merely an oral answer given "on the hoof" to a question on 23 June 2009 and thus could not be fully relied on.[1] The second ministerial answer was given on 1 July 2009 as part of a topic–specific debate, so the court felt that this could be relied on by the claimant.[17]
As part of the prepared answer, the Minister of State for the Department of Health, stated:
I stand by the points that I made. Furthermore, a judicial inquiry in Ireland found failures of responsibility by the Irish blood transfusion service and concluded that wrongful acts had been committed. As a result, the Government of the Republic of Ireland decided to make significant payments to those infected...[21]
Since the Minister chose to expand on the published reasons for the decision in responding to questions in Parliament, the court was left with an obligation to examine the government's reasoning, provided it did not trespass on issues such as allocation of resources or political matters. It was the Minister's use of the words ″as a result″ that Holman J pointed to as being factually incorrect, since those words suggested, erroneously, that the significant payments made in the Republic of Ireland were because of findings of wrongful acts and failures of responsibility.[22][23]
Significance
On the morning the judgment was handed down, the late Lord Morris of Manchester described how he felt the decision was historic for the haemophilia community and how he expected it would be welcomed by the community of some 5,000 people who were infected en masse with HIV and Hepatitis C through contaminated blood and blood products.[24] Lord Morris went on to expand as follows:
…1,974 have died in direct consequence of the NHS treatment. Yet until today the legal road to redress was blocked, just as unbreakably as any prospect of securing justice by legislative means. Now with today’s historic breakthrough in the High Court and the huge public backing for my Contaminated Blood Support for Infected and Bereaved Persons Bill, both roads are open. Our determination to ensure that ′right is done′ is totally vindicated and a just outcome is now in sight.[25]
Following certiorari, the defendant had until 4pm on Monday 7 June 2010 to apply to the Court of Appeal for permission to appeal.[11] By 2 June 2010, the new coalition government had chosen not to appeal the decision of the High Court.[26] There was a period of vacuum following the quashing order, where the government was required by the court to revisit the matter and remake the decision – de novo.[27][28]
^ abcdeR (March) v Secretary of State for Health, 765 BMLR 116, 53 (EWHC (Admin) 2010).
^Fordham, Michael (2008). "<P49>". Judicial Review Handbook (Fifth ed.). Oxford: Hart Publishing Ltd. p. 468. ISBN9781841138244. Judicial review judges have traditionally been cautious about fact-based challenges.
^Demetriou, Marie; Houseman, Stephen (1997). "Review for Error of Fact—A Brief Guide". Judicial Review. Routledge. 27 (1): 27–32. doi:10.1080/10854681.1997.11426925.
^E v. Secretary of State for the Home Department, 49 QB 1044, 51 (EWCA (Civ) 2004).
^ abMeikle, James (16 April 2010). "Court ruling may help contaminated blood victims win higher payouts". The Guardian. London. Retrieved 11 April 2020. A classical music composer who was infected by HIV when he was nine, who later developed hepatitis, won a judicial review that challenged the basis of health ministers' decision last year not to increase the payments.
^"Composer wins compensation review over contaminated blood". The Telegraph. London. 16 April 2010. Retrieved 11 April 2020. An award-winning composer who contracted HIV and Hepatitis C through NHS treatment with contaminated blood products has won a legal challenge over compensation payments.
^ abHynes, Lara (30 July 2009). "RE: Blood & Tissue Policy Division, (DOHC)". Letter to Mark A. Ward. The scheme of compensation for persons with haemophilia was put in place on compassionate grounds, without legal liability on the part of the State.
^Lord Archer of Sandwell (23 February 2009). "9"(PDF). Independent Public Inquiry Report (Report). Archer Inquiry. p. 89. Retrieved 12 April 2010. The payments by the Irish Government were equally made without an admission of liability.
^R (March) v Secretary of State for Health, 765 BMLR 116, [27] [30] [34] (EWHC (Admin) 2010).
^ abMr Justice Holman (16 April 2010). Order of the Administrative Court (Report). High Court. p. 2. Claim No: CO/9344/09.
^R (March) v Secretary of State for Health, 765 BMLR 116, 19 (EWHC (Admin) 2010) ("...that that error undermines the reasoning process of the government in their decision to reject recommendation 6 (h);").
^Lord Archer of Sandwell (23 February 2009). "12"(PDF). Independent Public Inquiry Report (Report). Archer Inquiry. pp. 107–110. Retrieved 11 April 2010. We believe that the following recommendations would help to meet the unmet needs of patients with haemophilia and their families...
^Endicott, Timothy (June 2011). "9.2.3". Administrative Law (Second ed.). Oxford: Oxford University Press. p. 333. ISBN9780199601752. An error of fact revolution?
^Fordham, Michael (July 2012). "<P49>". Judicial Review Handbook (Sixth ed.). Oxford: Hart Publishing Ltd. p. 511. ISBN9781849461597. But the claimant must demonstrate that (i) there is an error of fact;
^ abLidbetter, Andrew; Zar, Nusrat; Condliffe, Anna (30 April 2010). "Quashing a decision on the basis of material error of fact". lexology.com. Herbert Smith Freehills LLP. Retrieved 11 April 2020. ...the fact or evidence must have been ″established″, in the sense that it was uncontentious and objectively verifiable;
^R (March) v Secretary of State for Health, 765 BMLR 116, 53 (EWHC (Admin) 2010) ("In my view, the error is material because a different decision might (I stress, might) have been made if the government had correctly focussed on, and grappled with, the compassionate basis of Irish payments, when considering in particular the passage at internal pages 90 – 94 of Archer which underpins recommendation 6 (h).").
^Fordham, Michael (July 2012). "<P29.4.10>". Judicial Review Handbook (Sixth ed.). Oxford: Hart Publishing Ltd. p. 338. ISBN9781849461597. The role of the court is limited to examining the decision under review.
^Earl Howe, The Parliamentary Under-Secretary of State, Department of Health (2 June 2010). "Health: Contaminated Blood Products". Parliamentary Debates (Hansard). Vol. 719. United Kingdom: House of Lords. col. 247. My Lords, we have decided not to seek leave to appeal the judgment, and we shall be writing shortly to let the court know of our decision. We are considering our response to the judgment and will announce our decision in due course. In the meantime, ex–gratia payments will continue to be paid at current levels to those affected.
^ The dictionary definition of de novo at Wiktionary
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