I'm not sure if anyone's done this yet but here is how I would summarise the judgment handed down by the Admin Court:
Para 45: Door stewards do not render doors "not used by passengers".
Para 46: ORR has discretion to extend a policy previously enforced only on commuter stock to heritage trains.
Paras 48-52: Discretion was not unlawfully fettered (see note 1 below).
Paras 88-92: The ORR did, in fact, adequately take into account all factually significant matters.
Paras 93-96: The ORR acted rationally (see note 2 below).
Paras 53-87: The key ground - disproportionate interference in property rights
This one is a rather interesting ground. For the ground to succeed there are a few components:
- There must be an interference by public action of WCR's right to own and enjoy property; and
- Either:
- That public action serves a legally sufficient public interest; but
- There are less restrictive means of achieving that goal;
- Or:
- that interference does not serve a legally acceptable public interest.
- Lastly, the court will balance the harms and competing public interests - in WCRC's case the cost of central door locking and the safety gain attributable to it.
Here, there can be no doubt that "keeping rail passengers safe" is a strong public interest, so the court correctly moved onto the restrictiveness of means part of it. On this bit the court made several technical observations about the two methods of door locking - door stewards and central locking. Regarding the proportionality/least restrictive measure question, paras 63-65 are dubious for me - see Note 3.
Leaving that aside and moving onto the "impacts on [WCRC]" consideration the court raised several key points:
a) that WCRC hadn't actually demonstrated in evidence (despite the 1000-page bundle) that it actually would cost them as much as they claimed (£7 million) to fit it [para 76];
b) many other operators had in fact installed central locking, and that the claimants "undue burden/impact" was in fact a corner-cut vis-à-vis other heritage rail operators, and that the ORR was willing to be flexible about the timeframe [paras 80, 84];
c) not being able to afford safety installations is not a reason for an operator to be exempted from them [para 79].
Note 1: Statute and regulations often give public authorities wide discretion - public authorities may be empowered to grant exemptions to a catch-all rule in circumstances that it thinks are reasonable (e.g. an authority may be allowed to exempt payment of a processing fee - something which may be exercised if the applicant does not have the means to pay, or to prevent double payment of the fee, for example). Those authorities, out of consistency and practicality often tend to create internal rules or guidelines guiding the use of discretion. This is legally permissible, but such discretion cannot be "fettered" - i.e. the purpose of discretion - flexibility - will be defeated if the authority simply creates a set of rigid rules in exercise of the discretionary power.
Note 2:
It's important to highlight that as the court pointed out it is not a technical appellate body - judges hearing JR applications are not technical specialists in a given field - they are expected to hear cases regarding things as varied as medical ethics and railway regulation and everything in between. As such they are not in a position to review the facts beyond a "reasonableness" standard...assessed not from the perspective of a layperson with a strong interest in the railways and even less from that of a technically-trained railway professional but from that of an "ordinary person" - this is, in many respects, one of the inevitable limits of the judicial review process, and one reason why the federal government in the US has developed an intricate system of "administrative law judges" who specialise in a given area and who have the technical expertise to do so - as such when a case gets to a general court of law its facts will already have been decided through a quasi-judicial process. In some areas, this is a role which the FTT and UT in the UK now play, but not here.
I think it fair to say that the general confusion by Thornton J between rationality and proportionality do stem at least in part from that lack of understanding in the railways. As a legal proposition, the notion that rationality and proportionality embrace similar kinds of judicial scrutiny but at different standards (rationality is a more deferent standard - in other words courts are less willing to supplant decisions in favour of their own better judgment than they are in proportionality review) is obviously correct. What differs here is that rationality does not only encompass Convention rights but is applicable to a wider range of considertions - by definition a decision is reasonable in whole and not only as concerns the applicant's property interest.
This is where that weakness of the reasonableness/rationality standard comes in - courts are well-equipped to deal with those sorts of situations in contexts with which lawyers will be familiar - immigration, prison restrictions, family custody and parenting arrangements etc as a product of the sum of judicial experience acquired by the courts collectively over the years, and which do not touch upon intensely technical fields. Railway safety on the other hand is the sort of issue which (luckily) do not come before courts very often.
Note 3:
The bit I find slightly dubious comes down to paragraphs 63-65 - there the court held that "the ORR had in mind the proportionality of its decision to refuse an exemption" [63], before going on to illustrate in paragraph 64 the fact that the ORR had said that it found the measures proportionate. The essence of the proportionality standard, however, is that the Court and not the defendant authority must make the proportionality assessment on the basis of what is before the court. This sort of deference in HRA/ECHR proportionality review is of course circular and fallacious. The only balancing up the court seemed to do on this front was in paras 77-78 where it carried out a basic, purely mathematical cost/benefit analysis. What this seems to be highly indicative of is a lack of the technical knowledge on the part of the court needed in order to make a meaningful proportionality determination - the court should be able to weigh up the competing evidence between the restrictiveness and the safety benefit, yet in order to do so it must first learn about how railways are run, passenger behaviour, and how rolling stock is designed etc.
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