When can a decision of a public body survive a failure to comply with statutory requirements?

In a recent decision, the Inner House of the Court of Session overturned a decision of the Upper Tribunal for Scotland about the enforceability of a Penalty Charge Notice (a "PCN") under the Glasgow City Council's (the "Council") Low Emission Zone Scheme ("LEZ"). The effect of the Court's decision was that the actions of the Council in issuing a PCN were considered legally valid in spite of a failure to comply with the specific statutory rules. The judgment serves as a useful reminder to local authorities and other decision makers of the need to comply with statutory procedural requirements and the occasions which the courts may excuse a failure to follow the strict procedural requirements found in statute.

Facts

On 11 August 2023 the Council sent Mr Hamilton a PCN for driving a vehicle within the LEZ which did not comply with emissions standards. The PCN was sent by ordinary post and was received by Mr Hamilton on 16 August 2023, being the date stated on the PCN as the date of service. Mr Hamilton responded to the PCN with representations, the required statutory declaration and his response was dated 16 August 2023.

The Council rejected Mr Hamilton's representations, and he exercised his right of appeal to the Scottish tribunal system. Both the First-tier Tribunal for Scotland and Upper Tribunal for Scotland upheld Mr Hamilton's appeal on the grounds that the Council had failed to follow the statutory procedure for service. The Court had to decide whether a failure to send the notice by first class recorded delivery as required by the statutory requirements was fatal to the validity of the PCN.

The Law on Service

Under section 7(3) of the Transport (Scotland) Act 2019 ("the 2019 Act") and regulation 6 of the Low Emission Zones (Emission Standards, Exemptions and Enforcement) (Scotland) Regulations 2021 ("the 2021 Regulations"), local authorities may serve PCNs to certain persons. The concept of "serving" is not defined in that legislation. Section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010 Act provides the requirements for service where an Act of the Scottish Parliament or a Scottish instrument authorises or requires a document to be served on a person and does not specify the method or timing of service. Section 26(2) provides that a document may be served by personal delivery, by registered post or recorded delivery. In this case, the requirement to serve by registered post or recorded delivery was not met and the Court had to determine whether the PCN was valid in light of the failure to serve it properly.

Judgment

The Inner House had to determine whether the incorrect method of service rendered the PCN unenforceable and addressed the following key questions:

Was the statutory provision so central to the operation of the statutory scheme that the issue of substantial compliance should be ruled out?
Did the purpose of the procedural rule and the statutory scheme show that parliamentary intent was that the rule operated strictly?
Did any prejudice arise as a result of non-compliance with the procedural rule?

For the following reasons, the Court concluded that substantial compliance had taken place, that the Scottish Parliament did not intend to have the rule operate as a strict rule, and that there was little to no prejudice to Mr Hamilton from failure to comply with the procedural rules.

The Court considered that the relevant provisions of the 2019 Act and 2021 Regulations did not contain any indication or implication about the required means of serving a PCN or the consequences when "informal service" achieved the same outcome as service by the prescribed methods. The Court found that the statutory provisions were not so central to the operation of the statutory scheme that the issue of substantial compliance should be ruled out.

The Court outlined that the purpose of the requirement to serve by recorded delivery was to provide a verifiable way of proving that the errant motorist had received the notice. Mr Hamilton accepted that he had received the notice, which contained all the prescribed information, and responded to it. The purpose of the procedural requirement and procedural protections inherent in the scheme were therefore satisfied and the requirement had been substantially complied with.

The Court also had regard to the fundamental purpose and substantive outcome of the legislative scheme, which was to tackle air pollution in cities. It observed that it was unrealistic to suppose that the Scottish Parliament would wish this objective to be undermined by insistence on strict compliance with a procedural rule which were otherwise substantially observed and that had not resulted in any detriment to Mr Hamilton's interests.

The Court concluded that where it was undisputed that the purpose of service has been fulfilled and that the recipient had lost nothing of significance the inference was that Parliament intended service of the PCN to be effective notwithstanding the failure to comply with the prescribed procedure.

In granting the appeal the Court emphasised that its decision was based on the facts of the case and specifically reserved comment on any similar cases which were ongoing.

Comment

As noted above, the Court expressly limited its decision to the facts and circumstances of the appeal. Public authorities and those affected by the decisions of such authorities should remain mindful that failure to comply with procedural rules can be fatal to the validity of decision making. In general terms, the Courts are reluctant to refuse to grant a remedy to someone who is affected by an unlawful decision.

However, the decision of the Inner House indicates that there are circumstances in which failure to follow a statutory process might not lead to unlawfulness. The courts will be heavily guided by the procedural rule that has been breached, the statutory context in which the requirement arises and the prejudice to persons affected by procedural failings.

The judgment serves as a useful reminder that the courts may refuse to find that a failure to comply with a procedural requirement is unlawful where the legislature that made the laws did not intend the scheme to operate so strictly.