Judicial reviewsub nom Office of Fair Trading v IBA Healthcare Ltd [2004] ICR 1364Times 14 JuneRe [1985] AC 835Times 11 AprilTimes 28 AugustTimes 29 June
6.1Judicial review is a means by which the High Court ensures that decisions are lawfully made within the authority conferred on the decision-making body.
Judicial review in the Upper Tribunal in England and Wales
6.2For judicial review generally, see Jonathan Manning, Sarah Salmon and Robert Brown
Judicial Review Proceedings.
13rd edition, Legal Action Group, 2013.Jurisdiction
6.3The Lord Chief Justice has issued directions transferring particular classes of case to the Upper Tribunal. They are set out in chapter 1. Otherwise, judicial review cases are transferred to the Upper Tribunal on a case by case basis. The proceedings before the Upper Tribunal are governed by UTR Part 4.
6.4In
R (Z) v Croydon London Borough Council,
2[2011] PTSR 748. the Court of Appeal transferred an age assessment case to the Upper Tribunal. Sir Anthony May P explained why and the procedure that would be followed:
The Administrative Court does not habitually decide questions of fact on contested evidence and is not generally equipped to do so. Oral evidence is not normally a feature of judicial review proceedings or statutory appeals. … Transfer to the Upper Tribunal is appropriate because the judges there have experience of assessing the ages of children from abroad in the context of disputed asylum claims. If an age assessment judicial review claim is started in the Administrative Court, the Administrative Court will normally decide whether permission should be granted before considering whether to transfer the claim to the Upper Tribunal. The matter could be transferred for permission also to be considered, but the Administrative Court should not give directions for the future conduct of the case after transfer, and in particular should not direct a rolled-up hearing in the Upper Tribunal.
3[2011] PTSR 748 at [31].The Court rejected the argument that transfer was not appropriate in view of the applicant’s vulnerable personal circumstances.
4[2011] PTSR 748 at [32].Procedure and powers
6.5The Upper Tribunal should not slavishly follow the procedure for judicial review proceedings in the Administrative Court.
5Reed Employment plc v Commissioners for Her Majesty’s Revenue and Customs [2010] UKFTT 596 (TC) at [35].6.6The test that has to be satisfied in order to obtain permission to bring judicial review proceedings is whether ‘there is an arguable ground for judicial review having a realistic prospect of success’.
6Sharma v Brown-Antoine [2007] 1 WLR 780 at [14(4)]; Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82 at [13].6.7The Upper Tribunal may certify that an application is totally without merit under UTR r30(4A), and so not eligible for renewal at an oral hearing, only if a hearing would not serve the purpose of giving the applicant ‘an opportunity … to address the perceived weaknesses in the claim which have led the judge to refuse permission on the papers’.
7Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82 at [17(3)].6.8The Upper Tribunal has power to make a consent order under UTR r39, but only if it is ‘in a position to conclude that there are good grounds on the merits for quashing the decision in question.’
8R (G and H) v Upper Tribunal and Secretary of State for the Home Department [2016] EWHC 239 (Admin) at [205-[213]. The judge said it was not appropriate to consent to an order on the ground that it was ‘the most practical resolution’ or ‘on grounds of convenience only’.Judicial review in the Upper Tribunal in Scotland
6.9There are no mandatory transfers of judicial review applications to the Upper Tribunal in Scotland. All judicial review proceedings must be commenced in the Court of Session.
9EF v Secretary of State for Work and Pensions [2009] UKUT 92 (AAC). There is a limited discretion to transfer cases under the Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008 (SSI 2008 No 357). Only those applications that fall exclusively within it may be transferred to the Upper Tribunal.
10Note by Lord Hodge in the Petition of Sharon Currie [2009] CSOH 145, in which the application alleged an error of law. Lord Hodge’s reasoning can be read as meaning that a challenge to a procedural decision for an error of law that is not of a procedural nature (such as a lack of jurisdiction) would be outside the scope of mandatory transfers. In other words, the Act of Sederunt applies only to challenges on procedural grounds rather than to challenges of procedural decisions. A discretionary transfer was not possible, as the case involved a devolved matter – criminal injuries compensation.Judicial review of the Upper Tribunal
6.10For the susceptibility of the Upper Tribunal to judicial review, see chapter 1. If the decision of the Upper Tribunal is quashed on judicial review and the case remitted to the tribunal, it must accept the basis of the quashing decision, even if it later appears to have been made in error.
11Kuteh v Secretary of State for Education [2014] EWCA Civ 1586 at [20] and [24]–[25].The grounds for judicial review
6.11Lord Diplock listed the grounds on which judicial review lies in
Council for the Civil Service Unions v Minister for the Civil Service:
12[1985] AC 374 at 410–411.Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community …
By ‘illegality’ as a ground of judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it …
By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’ (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It applies to a decision that is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it …
I have described the third head as ‘procedural impropriety’ rather than failure to observe the basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe rules of procedure that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.
This is to some extent out-of-date but it provides a convenient indication of the core principles of judicial review.
Illegality
6.12If the decision-maker or tribunal has jurisdiction over a dispute but declines or fails to adjudicate, that decision is illegal in Lord Diplock’s sense and subject to judicial review.
13Lord Browne-Wilkinson in R v Lord President of the Privy Council ex p Page [1993] AC 682 at 698. Likewise, if the decision-maker or tribunal has no jurisdiction, but does adjudicate.
14[1993] AC 682 per Lord Browne-Wilkinson at 698. Other errors of law are also subject to judicial review,
15[1993] AC 682 per Lord Browne-Wilkinson at 701. provided that they are relevant to the decision.
16[1993] AC 682 per Lord Browne-Wilkinson at 702. However, those other errors are not subject to judicial review if the decision of the decision-maker or tribunal is final and conclusive. It is more likely that a decision of a court will be held to be final and conclusive than that of a decision-maker or a tribunal.
17[1993] AC 682 per Lords Griffiths and Browne-Wilkinson at 693 and 703.Judicial review and specialist tribunals
6.13The principles of judicial review are the same whether they are applied by the Administrative Court or by a specialist tribunal. In
Office of Fair Trading v IBA Healthcare Ltd,18[2004] ICR 1364. the Court of Appeal considered the scope of judicial review as applied under statute by the Competition Appeal Tribunal. The tribunal had decided that the principles were different on the ground that, unlike the Administrative Court, it was not a non-specialist court considering the decision of a specialist decision-maker, but a tribunal specialist in the area of decision-making. The Court of Appeal held that the ordinary principles of judicial review applied regardless of the specialism of the reviewing tribunal.
19[2004] ICR 1364 at [51]–[53].6.14When it is a decision of the specialist tribunal that is the subject of judicial review proceedings, the reviewing court makes appropriate allowance for the expertise of the tribunal in its particular jurisdiction.
20R (G and H) v Upper Tribunal and Secretary of State for the Home Department [2016] EWHC 239 (Admin) at [122].Judicial review and appeal
6.15The Upper Tribunal set out the differences between an appeal and a judicial review in
LS v London Borough of Lambeth:
21[2010] UKUT 461 (AAC).Most importantly, the Upper Tribunal’s power to substitute its own decision for a decision of the First-tier Tribunal that has been found to be erroneous on a point of law is far more limited in judicial review proceedings than its power to re-make the First-tier Tribunal’s decision in appellate proceedings (compare section 17 of the 2007 Act with section 12). Also of importance is the fact that there is a power to award costs against an unsuccessful party in judicial review proceedings but no power to award costs in an appeal from the Social Entitlement Chamber of the First-tier Tribunal (see rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)). There are other distinctions between the procedures. Judicial review proceedings are more cumbersome than appellate procedures because they involve the tribunal as a party, even though the tribunal rarely takes any active part. Also, judicial review proceedings do not give the First-tier Tribunal an opportunity to review its decision under section 9 of the 2007 Act. Finally, the statutory provisions governing the grant of remedies in the event of a successful appeal under the 2007 Act differ from the combination of statutory provisions and common law principles which govern the grant of remedies on an application for judicial review – whether in the High Court in England and Wales, in the High Court in Northern Ireland, in the Court of Session by petition to its supervisory jurisdiction, or in the Upper Tribunal.
22[2010] UKUT 461 (AAC) at [81].6.16Judicial review and appeal are not mutually exclusive. In
R (Khan) v Secretary of State for the Home Department,
23[2015] 1 WLR 747. the High Court analysed the authorities and decided that a judicial review was still permissible if there was a statutory right of appeal if the case raised an issue of precedent fact or involved excpetional or special circumstances. The relationship between judicial review and appeal was considered by the Court of Appeal in
R v Chief Constable of the Merseyside Police ex p Calveley.
24[1986] QB 424. Sir John Donaldson MR explained the relationship in terms of the discretionary nature of judicial review, saying that if there was a right of appeal: ‘the court, in the exercise of its discretion, will very rarely make this remedy [judicial review] available in these circumstances’.
25[1986] QB 424 at 433; BX v Secretary of State for the Home Department (2010) Times 14 June.6.17Glidewell LJ summarised the exception to the usual refusal to grant judicial review: ‘Judicial review in such a case should only be granted in exceptional circumstances’.
26[1986] QB 424 at 440.6.18And May LJ warned against allowing the exception to displace the rule:
… one must guard against granting judicial review in cases where there is an alternative appeal route, merely because it may be more effective and convenient to do so.
27[1986] QB 424 at 437.Although judicial review can provide an effective, convenient and relatively swift remedy, it should only be granted, particularly where the basis of the application is merely delay in taking the necessary proceedings, where this can properly be described as amounting to an abuse of process.
28[1986] QB 424 at 439.6.19In practice, judicial review is likely to be pursued only if an appeal does not lie. There are at least two reasons. First, the scope of judicial review is more limited than that of appeal. Second, every ground for judicial review is a ground of appeal, even if appeal is limited to issues of law.
29Lord Templeman in Re Preston [1985] AC 835 at 862. See also chapter 4. The presence of such an appeal is an indication that the legislative purpose is to direct cases to the statutory procedure rather than to the Administrative Court.
30Mummery LJ in R (Davies) v Financial Services Authority [2004] 1 WLR 185 at [31].6.20Judicial review will be the only remedy available if there is no appeal against a decision.
6.21The Upper Tribunal may hear an appeal and a judicial review as part of the same proceedings. It may even sit jointly with the First-tier Tribunal to hear an appeal to that tribunal and a judicial review in the Upper Tribunal.
31Reed Employment plc v Commissioners for Her Majesty’s Revenue and Customs [2010] UKFTT 596 (TC) at [41]. This ensures that the evidence heard on the appeal is available in the judicial review proceedings.
Judicial review of decisions of the First-tier Tribunal
6.22The scope of the right to appeal to the Upper Tribunal is so wide that there is little need for judicial review, except for those decisions excluded from the right of appeal. However, if judicial review is sought of a decision of the First-tier Tribunal, that tribunal is the respondent and may make submissions. It is, though, inappropriate for that tribunal to make submissions on the merits of its decision, particularly with there is another party with an interest in opposing the application.
32R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC) at [14].6.23An application for judicial review of a review decision of the First-tier Tribunal is unlikely to succeed, as those decisions involve a substantial element of judgment or discretion.
33R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC) at [30].Judicial review of decisions on permission to appeal
6.24The court may give permission to bring judicial review proceedings in respect of a decision on permission to appeal if the Upper Tribunal misunderstood or misapplied the law. The court may decide that the grounds of appeal presented to the tribunal were plainly right or that they had a real prospect of success. It is not necessary for the court to decide that the First-tier Tribunal’s decision was in error of law.
34R (G and H) v Upper Tribunal and Secretary of State for the Home Department [2016] EWHC 239 (Admin) at [122].6.25The Administrative Court and the Court of Appeal have limited the scope of judicial review in these cases. The following discussion is additional to the authorities following the decision of the Supreme Court in
R (Cart) v Upper Tribunal,
35[2012] 1 AC 663. which are discussed in chapter 4.
The basic principle
6.26The basic principle is based on respect for a statutory scheme of appeals and a need to ensure the effectiveness and coherence of the scheme. This was the approach taken by the Court of Appeal in
R (Sivasubramaniam) v Wandsworth County Court.
36[2003] 1 WLR 475. The scheme there involved appeals with leave from a district judge to a circuit judge and from that judge to the Court of Appeal. The circuit judge refused leave and judicial review was sought. The Court connected the existence of a coherent statutory scheme for appeals with the basic principles on which judicial review is available:
… judicial review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused.
We believe that these general principles apply with particular force in the context of the applications before us. Under the 1999 Act, and the rules pursuant to it, a coherent statutory scheme has been set up governing appeals at all levels short of the House of Lords. One object of the scheme is to ensure that, where there is an arguable ground for challenging a decision of the lower court, an appeal will lie, but to prevent court resources being wasted by the pursuit of appeals which have no prospect of success. The other object of the scheme is to ensure that the level of Judge dealing with the application for permission to appeal, and the appeal if permission is given, is appropriate to the dispute. This is a sensible scheme which accords with the object of access to justice and the Woolf reforms. It has the merit of proportionality. To permit an applicant to by-pass the scheme by pursuing a claim for judicial review before a judge of the Administrative Court is to defeat the object of the exercise. We believe that this should not be permitted unless there are exceptional circumstances …
37[2003] 1 WLR 475 at [47]–[48].The case concerned a refusal of permission, but the Court made clear that the same principles applied to an attempt to obtain judicial review of a grant of permission.
38[2003] 1 WLR 475 at [55].When the basic principle applies
6.27Whether this basic principle applies depends on a combination of factors. They were set out by Court of Appeal in
R (Sinclair Investments (Kensington) Ltd) v Lands Tribunal.39[2006] 3 All ER 650. The Court was concerned with disputes over service charges. They were heard by a leasehold valuation tribunal. An appeal lay with the permission of either the tribunal or the Lands Tribunal. The landlord applied for permission to appeal, which was refused both by the tribunal and by a surveyor member of the Lands Tribunal. Neuberger LJ said:
40[2006] 3 All ER 650 at [41].… the resolution of the question at issue must be resolved by reference to (a) the generic nature of the issues involved (in this case, residential service charge disputes), (b) the effect of the statutory procedures concerned, particularly those relating to appeals … (c) the nature and constitution of the tribunals involved in those procedures, and (d), in so far as it can be ascertained, the legislative intention … These factors must be assessed (a) against fundamental policy considerations, namely the desirability of finality, with the minimising of delay and cost, and the desirability of achieving the legally correct answer, and (b) against the practicalities, such as the burdens on the Administrative Court and, in this case, the pressures on the Lands Tribunal.
6.28There is an undefined exception to the basic principle, of which there has been only one identified instance to date. This was permission decisions of the former Immigration Appeal Tribunal. In
R (Sivasubramaniam) v Wandsworth County Court,
41[2003] 1 WLR 475. the Court of Appeal said that judicial review was allowed because of the nature of the issues involved and the risk of error:
42[2003] 1 WLR 475 at [52].In asylum cases, and most cases are asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture. The number of applications for asylum is enormous, the pressure on the tribunal immense and the consequences of error considerable.
6.29This exception did not apply to the statutory review procedures for immigration and asylum appeals.
43This applied to the original statutory review scheme (Collins J in R (G) v Immigration Appeal Tribunal [2004] 1 WLR 2953 confirmed by Court of Appeal in [2005] 1 WLR 1445) and to the scheme under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (R (F Mongolia) v Secretary of State for the Home Department [2007] EWCA Civ 769; (2007) Times 28 August). However, judicial review was permissible in such cases if necessary in order to prevent gross procedural unfairness.
44R (AM (Cameroon)) v Asylum and Immigration Tribunal [2007] EWCA Civ 131; (2007) Times 11 April.The limited grounds for judicial review if the principle applies
6.30Judicial review is allowed to disrupt a statutory scheme if there has been a jurisdictional error. In
R (Sivasubramaniam) v Wandsworth County Court,
45[2003] 1 WLR 475. the Court of Appeal decided that the judges of the Administrative Court should dismiss such applications summarily
46[2003] 1 WLR 475 at [54]. except:
… on the ground of jurisdictional error in the narrow, pre-
Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant’s right to a fair hearing.
47[2003] 1 WLR 475 at [56].6.31Jurisdictional error does not include mere errors of law. The Court of Appeal rejected an argument that it did in
Gregory v Turner.48[2003] 1 WLR 1149 at [39]. Nor does it include gross and obvious errors of law. Sullivan J rejected an argument that it did at first instance in
Sinclair Gardens Investments (Kensington) Ltd v The Lands Tribunal:
49[2004] EWHC 1910 (Admin) at [50].Whether an error of law is ‘gross and obvious’ is very much a question of degree and judgment. Many perceived errors of law are ‘gross and obvious’ in the mind of the losing party. Since it will often be impossible to decide whether the error is ‘gross and obvious’ without hearing full legal argument, applying such a test when considering applications for permission to claim judicial review would subvert the statutory scheme just as effectively as removing the need to show exceptional circumstances.
50But contrast the view of Scott Baker J in R (Anayet Begum) v Social Security Commissioners [2002] EWHC 401 (Admin), discussed below, on the need for an error to be obvious.6.32What does amount to a jurisdictional error in the pre-
Anisminic sense was considered by the Court of Appeal in
Gregory v Turner.
51[2003] 1 WLR 1149. The Court approved
52[2003] 1 WLR 1149 at [40]. the summary in the argument of counsel for the Commission in
Anisminic Ltd v Foreign Compensation Commission:
53[1969] 2 AC 163 at 161.Category (1). Cases where the tribunal has no jurisdiction to embark on an inquiry and make a determination unless a condition precedent was satisfied. If in the view of the court the condition was not satisfied, then the so-called determination is a nullity …
Category (2). Where the statute expressly forbids the tribunal to exercise jurisdiction over the subject-matter of the inquiry and determination …
Category (3). Where the tribunal has no jurisdiction to make the order it in fact made.
Category (4). Cases in which there have been different reasons for the decision and in which the distinction between nullity and error in law may not have been considered … These are difficult cases in that it is sometimes hard to see what the precise point was but it may be possible to build up from them a proposition of general validity that a tribunal has no jurisdiction to make a determination if it has acted in complete disregard of its duties.
6.33The Court of Appeal in
Gregory v Turner discussed this final category,
54[2003] 1 WLR 1149 at [40]–[43]. saying that:
What is required, at least, is some fundamental departure from the correct procedures.
55[2003] 1 WLR 1149 at [41].On remittal
6.34If the decision of the Upper Tribunal refusing permission is quashed on judicial review and the case remitted to the tribunal, it must accept the basis of the quashing decision both when it decides whether to give permission to appeal and, if it gives permission, when it decides the subsequent appeal.
56Kuteh v Secretary of State for Education [2014] EWCA Civ 1586 at [20] and [24]–[25].Judicial review of decisions without reasons
6.35The proper approach to judicial review of a decision in which reasons are not given was considered by the Court of Appeal in
R v Secretary of State for Social Services ex p Connolly.57[1986] 1 WLR 421. The Court of Appeal was concerned with a refusal of leave by a Commissioner. An appeal lay to the Commissioner on a question of law. The applicant had been refused judicial review of that refusal and had appealed against that decision to the Court of Appeal. Slade LJ said:
… the onus must, in my judgment, lie on the applicant to show either (a) that the reasons which in fact caused the commissioner to refuse leave were improper or insufficient, or (b) that there were no good grounds on which such leave could have been refused in the proper exercise of the commissioner’s discretion. He may well discharge this onus by showing that the decision sought to be challenged was on the face of it clearly erroneous in law or, alternatively, gave rise to a substantially arguable point of law. However, if it can be seen that there are still good grounds upon which the commissioner would have been entitled to refuse leave in the proper exercise of his discretion, the court should, in my opinion, assume that he acted on those grounds unless the applicant can point to convincing reasons leading to a contrary conclusion.
58[1986] 1 WLR 421 at 432.6.36This approach has been applied to cases in which reasons have been given.
6.37The approach has been qualified by later authority. Scott Baker J summarised the current law in
R (Begum) v Social Security Commissioners:
59[2002] EWHC 401 (Admin) at [20].The position is that mere arguability is not the test, a higher hurdle must be surmounted. The point must be obvious; that is one which would have a strong prospect of success were leave to be granted. An obvious point, it seems to me, is one that stands out and not one that can only be gleaned by a paper chase through various documents which may underlie the decision-maker’s decision.
60See also chapter 4.Judicial review of specialist policy
6.38If a specialist body’s decision involves the balancing of policy issues, the courts are reluctant to find that it involved an abuse of power.
61R (Legal Remedy UK Ltd) v Secretary of State for Health (2007) Times 29 June.Costs against the tribunal
6.39In
R (Davies) v Birmingham Deputy Coroner,
62[2004] 1 WLR 2739. the Court of Appeal set out the rules relating to costs against a tribunal whose decision is subject to an application for judicial review. The position is as follows.
•If the tribunal takes no part in the proceedings, it will not be liable for costs unless (i) there was a flagrant instance of improper behaviour or (ii) the tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings.
•If the tribunal takes an active part in the proceedings, it will be liable for costs unless its involvement was merely to assist in a neutral way. However, costs may be awarded against the tribunal if, for example, the successful party has no other source of funding.
6.40In principle, a protective costs order can be made to protect the tribunal, although this is perhaps unlikely to be necessary for a public body.
63R (Ministry of Defence) v Wiltshire and Swindon Coroner [2005] 4 All ER 40.Cross-border issues
6.41Applications for judicial review of a First-tier Tribunal’s decision in England or Wales can arise under the law of England and Wales for the purposes of TCEA s15, even if the original administrative decision was governed by the law of Scotland.
64MB v First-tier Tribunal and CICA [2012] UKUT 286 (AAC); NF v First-tier Tribunal and CICA [2012] UKUT 287 (AAC).6.42A decision made in England or Wales may be subject to judicial review in Scotland if the claimant was resident in Scotland.
65Tehrani v Secretary of State for the Home Department [2007] 1 AC 521.Representations by the Secretary of State
6.43The Secretary of State responsible for a particular jurisdiction is entitled to make representations on judicial review. In
R (Cowling) v Child Support Commissioners’ Office,
66[2009] 1 FLR 332. a parent with care’s solicitor argued that the Secretary of State responsible for child support should not be allowed to appear in judicial review proceedings as it was inconsistent with his duty to do only what is in the best interests of the child. Underhill J rejected that argument:
67[2009] 1 FLR 332 at [24].Mr Henshaw [counsel for the Secretary of State] made it clear in his skeleton argument that the Secretary of State saw his role as essentially that of amicus. Such a role is of assistance to the court and in the interests of justice. Mr Burrows [for the parent with care] was able to suggest no actual prejudice to the claimant, other than the obvious prejudice that she would prefer to have no argument in opposition to her submissions. Mr Burrows’ objection was at the level of theory. Even at that level I do not believe that his point is well-founded. I do not accept that such responsibility as the Secretary of State may formally have for the operations of the Child Support Agency in pursuing proper claims for the benefit of children and resident parents is inconsistent with the role which he is undertaking in these proceedings.