Public Law Case Update - June 2018

19 minute read
29 June 2018

Written by Gowling WLG's team of experts, our case update offers a straightforward overview of six recent important cases in public law and regulation.

In this edition, our experts examine the following cases:

Parliament can be given time to fix provisions which are non-compliant with EU law

R (National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department and another

Under Part 4 of the Investigatory Powers Act 2016 the Secretary of State has the power to issue 'retention notices' requiring telecoms operators to retain certain data. Liberty challenged this power on the basis that it is not compatible with the Charter of Fundamental Rights of the European Union. In particular it claimed this was because: (a) in the area of criminal justice Part 4 does not limit access to retained data to the purpose of combating "serious crime"; and (b) that access is not subject to prior review by a court or an independent administrative body.

The Secretary of State conceded the incompatibility and confirmed that the issue would be corrected by secondary legislation. The case before the Divisional Court was about what relief should be granted in light of that concession.

Liberty applied to the Court to make an order disapplying Part 4 on the basis that, until the amending secondary legislation is approved, unlawful retention of communications data continues. Liberty requested that, in the alternative, the Court make a declaration of incompatibility.

The Court relied on R (Chester) v Secretary of State for Justice as authority that there is no automatic rule that national legislation must immediately be disapplied once it is held to be incompatible with EU law. There is nothing in EU law which prevents a Member State from having national legislation which permits the retention of data; rather the incompatibility stemmed from the failure to have certain safeguards in the legislation. The requirement for an alternative legislative scheme to be imposed in order to rectify the incompatibility made the situation distinguishable from one where a provision of incompatible national legislation can simply be ignored or overridden by EU law.

Refusing to make an order for disapplication the Court noted that this was an important constitutional case where there were vital public interests at stake on both sides, and ruled that making an order for disapplication (a coercive form of order which can be enforced by the courts) would not be appropriate in such a delicate constitutional context. Instead it favoured the more cautious approach of making a declaratory judgment of incompatibility (albeit on a narrower basis than that sought by Liberty) which included a statement that the legislation must be amended within a reasonable time and in any event not later than around six months from the date of the judgment.

Is inequality of treatment just irrational?

Gallaher Group Ltd and others v CMA

Following its investigation into the tobacco market, the Office of Fair Trading (OFT) issued a finding against 12 companies that certain price fixing arrangements had an anti-competitive object and/or likely effect (the Tobacco Decision).

The OFT entered into early resolution agreements (ERAs) with some of the companies, offering them reduced financial penalties in return for their co-operation with its investigation. TM Retail Group Ltd (TMR) entered into one such ERA. At the same time, it also secured assurances from the OFT that the Tobacco Decision against TMR would be withdrawn or varied in the event of a successful third party appeal against that decision.

Six parties who had not entered into ERAs went on successfully to appeal the Tobacco Decision. On the basis of the assurances it had given, the OFT then refunded the penalties TMR had previously paid, plus interest and legal costs.

When other companies with ERAs who had not obtained similar assurances to TMR found out about the settlement that the OFT had reached, they also requested to be refunded the penalties they had paid. The OFT refused these refunds, and the claimants, who fell into this category, brought a judicial review. The case concerned whether refunding TMR but refusing refunds to other companies was a breach of the principle of equal treatment or was unfair.

At first instance, Collins J found that the assurances to TMR had been given in error and the effects of that error should not be replicated due to cost to the public purse. The Court of Appeal disagreed, finding that the OFT's refusal to pay the appellants was unfair, in breach of the duty equal treatment, and not objectively justified. The Supreme Court unanimously allowed the appeal by the CMA (the OFT's statutory successor), finding that the OFT did not act unlawfully.

The main point of the judgment is that a mistake does not have to be repeated in the name of equal treatment. However, the main interest in the case lies in the Court's wider discussion. Although it had not been a point of contention between the parties, the Supreme Court took the opportunity to assert that the concepts of equal treatment and substantive fairness are not free-standing heads of claim for judicial review. Instead they are subsets of the concept rationality and legitimate expectation.

It remains to be seen whether this unexpected conclusion will make any difference to the threshold that must be met to succeed in challenges on the basis of equal treatment.

Time for bringing a judicial review extended by six years

Thornton Hall Hotel Limited v Wirral Council

The local authority granted planning permission for the erection of three semi-permanent marquees. It decided that the permission was to be for a period of five years but failed to attach this condition to its final published decision. This meant that the planning permission was given for an indefinite period.

The claimant, a competitor to the beneficiary of the planning permission, sought judicial review of the council's decision notwithstanding that it was significantly out of time - the standard rule being that a judicial review challenge shall be brought promptly and in any event within three months (now six weeks for planning decisions) of the relevant decision. The council did not defend the claim on the timing point, but it was contested on this basis by the interested party (the beneficiary of the planning permission).

Time limits for judicial review claims are strictly enforced, but they can be extended at the discretion of the court, i.e. where it considers there is a good reason to depart from the general rule and allow the extension of time being sought.

In this case, the Court determined that, while it clearly would have been preferable for the error to have been brought to light earlier, it was in the public interest to allow the extension of time given the effect of the error. A key factor the Court took into account in reaching its decision was that the beneficiary of the planning permission (the interested party) was aware that the council had made the error but failed to draw the council's attention to it - instead it chose to remain silent about it. It was therefore unattractive for it to claim that the claimant and the council were responsible for the delay in the issue coming to light. The judge confirmed that if it was not for this factor the extension of time may otherwise have been refused.

In a rolled-up hearing for both permission and the substantive claim, having exercised its discretion to extend the time period for bringing the judicial review and granted permission for the claimant to bring the judicial review, the Court proceeded to allow the substantive claim with regard to the validity of the indefinite planning permission. It then quashed the indefinite planning permission.

An inflexible 'cab rank' policy held to be unlawful and discriminatory

R (On the Application Of Adath Yisroel Burial Society and another) v HM Senior Coroner for Inner North London

In an attempt to address her concerns that Jewish families were being prioritised over other families by her officers, the Defendant - HM Senior Coroner for Inner North London - introduced a policy which stated that "no death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner's officers or coroners."

The claimants challenged the policy on the basis that it was in breach of Article 9 (right to freedom of thought, conscience and religion) and Article 14 (enjoyment of rights and freedoms without discrimination) of the European Convention on Human Rights, that it amounted to unlawful discrimination under the Equality Act 2010 and that the Defendant had failed to have regard to the "public sector equality duty" as required under that Act. In addition, the Chief Coroner - joined as an Interested Party - submitted that the policy was over-rigid leading to a fettering of the Defendant"s discretion and not capable of rational justification.

While claiming to maintain a "neutral stance" for the purpose of the proceedings, in her written submissions the Defendant had stated that she did not apply the policy rigidly and that it operated in ways that were different in practice. The Court confirmed that it had to consider the policy as published, which on its face excluded any prioritisation of deaths for religious reasons.

The Court ruled that the policy was unlawful and discriminatory on the grounds argued by the claimants and the interested party - although it found that the Defendant had not failed to have regard to the public sector equality duty. The policy, as formulated, imposed a blanket rule which prevented the Coroner from taking into account a relevant consideration (i.e. religion) and the individual circumstances of a particular case and thereby fettered her discretion in the exercise of her relevant powers. Moreover singling out religious beliefs for exclusion from consideration under the policy was discriminatory as, without objective and reasonable justification, it failed to treat differently people whose situations are significantly different, and it also amounted to a disproportionate interference with the right to manifest religion.

The case provides a classic example of a policy which purports to apply equally having an unequal impact on a minority and therefore being inadvertently discriminatory. Discrimination can consist of treating different cases in the same way, as well as the (more common) obverse of that situation.

The discretion to be afforded in EU proportionality cases

R (Uber London Limited) and others v Transport for London

Transport for London (TfL) imposed a licence condition which required private hire vehicle operators to provide a mechanism for passengers to speak with someone if they wished to make a complaint (a voice contact facility). The requirement was for the facility to be available at all times, and in relation to complaints in both emergency and non-emergency situations.

Uber and others challenged the lawfulness of this requirement on the basis that it constituted a disproportionate interference with the rights to freedom of establishment of operators contrary to Articles 49 and 54 of the Treaty on the Functioning of the European Union. The Court was therefore required to consider whether the requirement for a voice contact facility was proportionate to the customer service and safety aims that TfL put forward to justify it.

At first instance there was evidence before the Court that customers would benefit from being able to speak with a person for both emergency and non-emergency complaints, and that in many cases it would be difficult to distinguish between the two types of situations. Mitting J agreed that, for emergencies, there was no less intrusive measure than a voice contact facility which would still provide the same level of customer safety. However, he held that customers who were happy to book using the app would most likely be happy also to use it to register complaints in non-emergencies. The use of the app rather than a voice contact facility would be a less intrusive measure which would achieve the same benefits and TfL's insistence on a voice contact facility for all complaints was therefore disproportionate and in breach of EU law.

Upholding TfL's appeal, the Court of Appeal criticised the judge's reliance on the use of a voice contact facility for emergencies only as it had not been suggested by either party and there was no evidence that it would actually be practicable, or meaningfully less burdensome or costly than the use of such a facility for all types of complaints.

The Court of Appeal disagreed with the judge's finding that 'no useful purpose' would be served by a voice contact facility for non-emergency cases, especially in light of Uber's own evidence which showed that a substantial number of customers who used the app still preferred voice contact. A voice contact facility provided passenger benefits such as reassurance and speed of response and the judge had failed to explain why these were not legitimate objectives in a non-emergency situation.

Applying R (Lumsdon) v Legal Services Board, the Court of Appeal also ruled that, as the regulation of private hire vehicles is not an area of EU competence, the balancing exercise that the Court should conduct in assessing proportionality should be less intrusive. TfL should thus be accorded a wide margin of discretion as to the appropriate level of consumer protection and how this should be achieved. In substituting his view for TfL's, the judge had failed to respect that discretion and applied too intrusive a level of review.

Is the press regulator subject to judicial review?

Coulter v Independent Press Standards Organisation CIC (IPSO)

The Independent Press Standards Organisation (IPSO) is a not-for-profit community interest company regulating newspaper and magazine publishers that have agreed to be subject to its regulation. It has no statutory remit but performs the role of an independent regulator of the press, essentially a form of 'self-regulation'. In this capacity it has taken on the role of determining complaints made against a publisher which has agreed to its jurisdiction.

Mr Coulter complained to IPSO that reports in certain newspapers about a campaign meeting held at the House of Lords were inaccurate and misleading and therefore in breach of the Editors' Code of Practice.

The complaint was not upheld and Mr Coulter challenged that decision on the basis that IPSO: (a) had mishandled the complaint by declining to assess it on the basis that it was a third party complaint; (b) was in breach of a duty of sufficient inquiry, by failing to take account of a report of the House of Lords Committee for Privileges and Conduct (the Report); and (c) had applied an incorrect and irrational standard of review.

This was the first time that a judicial review of an IPSO decision had been sought. Although IPSO did not contest the claim on the basis that it was not amenable to judicial review, the judge nevertheless sought submissions on the point. This was on the basis that the question of amenability was not a matter which could be determined by agreement of the parties.

In the event, because the Court dismissed the substantive claim on all of the grounds of challenge, it declined to decide the jurisdiction issue. This leaves open the possibility that IPSO can contest any future claim on the basis that it is not amenable to challenge by way of judicial review.

On the substantive issues the Court ruled that IPSO had a degree of discretion to consider complaints of inaccuracy when raised by third parties and it had exercised this discretion appropriately. The Court also noted that IPSO's complaints handling service was not an inquisitorial function. It was for IPSO to decide the questions before it on the evidence available to it. The Report had only been placed before it after its investigation had concluded and when the decision-making process was well advanced. Accordingly IPSO's decisions not to uphold the complaint were rationally made.

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