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| Lord Rennard grounds for legal action |
What grounds Lord Rennard has to take legal action?
Lord Rennard’s lawyers are considering grounds for legal action against the Liberal Democrats Party following the announcement that a second investigation into Lord Rennard’s conduct is to commence.The lawyers are expected to have a great time preparing his case. There is plenty of raw material for them to play with. Professionally, they will be like kids in a toy shop.
So has Lord Rennard got a reasonably good argument for a judicial review? You bet he has.
Lord Rennard’s Legal action is likely to be by way of an application for a judicial review of the Party’s decisions to suspend him and to hold a second investigation into his conduct.
A judicial review involves an application to the Court to review the legality of an administrative decision. It is not an appeal against the administrative decision but rather a request to the Court to announce that the administrative decision is unlawful.
So on what grounds may Lord Rennard win a judicial review?
Under UK law, there are only three circumstances where a Court might declare administrative decisions unlawful. These are:
Illegality
Irrationality
Procedural Impropriety
You only need to prove one. On the face of it, Lord Rennard could win on all.
As an example, Lord Rennard might put forward a simple yet powerful argument. He might say that:
“My suspension from the Party and the investigation into my refusal to say ‘sorry’ is in true a second investigation into my original alleged misconduct. This is illegal, irrational and procedurally improper.”
Illegality: The decision goes against Party rules. It is an attempt by the Party leader to force a second investigation that is expected to reach the “right outcome” for the greater good of the Party. There will be no fair hearing because the person who ordered the second investigation had made it no secret that he is bias against Lord Rennard. The Party leader had publically expressed the precise outcome he expects to see from the second investigation.
Irrationality: All of the above plus: It is irrational to set up a second judicial process just because the Party leader doesn’t like the outcome of the original process. The Party leader’s decision was based on irrational factors. The decision was emotionally driven and not based on clear, reasoned and rational thinking. This might be evident by the fact that the Party leader had kept highly noticeable low profile on the matter for over a year. His extreme change of behaviour is an indication that he is following public mood rather than facts and good reason.
Procedural Impropriety: All of the above plus: Lack of transparency, limited access to documents, attempts to achieve a specific desired outcome via the back door, the sudden and arguably unlawful intervention of the Party leader, the incoherent process leading up to the decisions, the public trial by media and witnesses and lack of independence of the second judicial process.
You can fit all of the above into any of the three categories of Illegality , irrationality and Procedural Impropriety.
And no doubt there is plenty more. From breach of human rights to violation of rules and procedure.
Dr David Herling my great Administrative Law tutor and Senior Lecturer in Law at City University Law School would probably describe this as an “Administrative Lawyer’s paradise”.
By: Yair Cohen
Cohen Davis Solicitors
