Public Law Case Update – December 2019

22 minute read
06 December 2019

The December 2019 edition of our case updater offers a straightforward and concise overview of six recent cases within public law and regulation which highlight important points of relevant public law principles and procedure.

Gowling WLG's team of public law and regulation specialists examine the following cases and identify the key points which can be taken from them.

Distinguishing between pre-determination and pre-disposition in the context of consulting on policy proposals

In Electronic Collar Manufacturers Association v Secretary Of State for Environment, Food and Rural Affairs, an organisation representing manufacturers of electronic collar devices for cats and dogs sought a judicial review of the Secretary of State's decision to ban the use of hand-held remote-controlled electronic training collars ('e-collars') in England.

On procedural grounds, the claimants' main contentions were that the consultation did not satisfy any of the Sedley criteria (see our previous update here as to the criteria) and that the decision was pre-determined. In support, they referred to the lack of alternative options, the pithiness of the document, the 6½ week period of consultation, and some of the language used in the consultation document and other prior communications. On pre-determination, they argued that even if the evidence did not establish actual pre-determination, it would nevertheless lead a fair minded and informed observer to think that was the case.

On substantive grounds, the claimants argued that the decision to ban e-collars was: (i) irrational because it was not a reasonable (in the Wednesbury sense) response to animal welfare concerns relating to the use of e-collars; and (ii) in breach of Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights on the basis that it disproportionately interfered with the claimants' (or their members') ability to sell e-collars in England and therefore with their marketable goodwill.

The claim was dismissed on all of the grounds of challenge.

The judge accepted that aspects of the consultation exercise could have been improved, but held that when considering the process as a whole it was not materially flawed in the sense that something had gone clearly and radically wrong. He also held that there was a legitimate distinction between pre-determination and pre-disposition (towards a proposal) and held that the latter had applied in this case. The consultation language used could have been more careful, but when considering it in context, it did not demonstrate that the Secretary of State had pre-determined the matter or that a reasonable and well informed observer would have considered that there was a real possibility of pre-determination.

On the substantive grounds of challenge, the court considered the basis of the evidence and the reasoning given by the Secretary of State for the ban and held that it was not outside the range of reasonable responses that were open to the decision-maker. This was the case notwithstanding that there had been a change of position by the Secretary of State whereby he had relied, in part, on evidence that had previously been considered not to be sufficiently strong. The change of position was not sufficient to render the decision Wednesbury unreasonable.

On the AIP1 argument, the court agreed that the ban involved an interference with the claimants' possessions, but held that the interference was justified on the basis that promotion of animal welfare was a legitimate aim for the restriction of the right to peaceful enjoyment of possessions and that no less intrusive measure was available.

When do scientific judgements by experts provide a rational basis for decision-making?

R (Thomas Langton) v (1) Secretary of State for the Environment, Food & Rural Affairs (2) Natural England is a Court of Appeal decision concerning the validity of the Secretary of State's guidance to Natural England relating to the licensing of supplementary badger culling to prevent the spread of bovine TB, and Natural England's decision to issue licences in line with the guidance.

Following a review into badger culling - which involved commissioning the services of a number of scientific experts, together with a public consultation - the Secretary of State concluded that, if carried out in accordance with strict minimum requirements, supplementary annual culling following a period of intensive culling would ensure that the reduction of bovine TB was maintained.

The policy was implemented by issuing guidance to Natural England (under the Natural Environment and Rural Communities Act 2006) which enabled it to grant licences to that effect. Natural England issued two supplementary licences in August 2017, and has issued a number of further licences since.

Mr Langton, the appellant, contended that -

  1. the guidance was ultra vires because there was no objective or scientific evidence to support the policy of supplementary culling; rather there was only scientific opinion that it might work, and the lower court erred in treating the question solely by reference to whether the guidance was for an improper purpose, and
  2. the licences breached the Conservation and Habitats Regulations 2010 because the two-stage process adopted by Natural England did not incorporate an 'appropriate assessment' on the restriction of the licensable activities, including in particular whether they would adversely affect special protection areas or special areas of conservation.

The Court of Appeal held that the lower court had not concluded that the guidance would only be unlawful if it was for a purpose other than those for which a licence could be granted, but had considered the question by reference to whether the Secretary of State's decision was flawed in public law terms.

In this respect it noted that the legislative provisions do not specify the nature or quality of the evidence which is necessary to support the grant of a licence. It concluded that, in issuing the guidance, the Secretary of State was entitled, acting rationally, to rely on the available evidence as to the effects of intensive culling and on the scientific opinions of government agencies and informed independent experts. Accordingly, the decision to give the guidance was not ultra vires.

In dismissing the appeal, the court also agreed with submissions from Natural England that the second ground of appeal had become academic because it had changed its standard practice and now carries out (and indeed had subsequently carried out in respect of already granted licences) an 'appropriate assessment' to reflect the authority cited by the appellant.

Challenging expert regulators: the limits of judicial review

In R (Lasham Gliding Society Limited) v Civil Aviation Authority the claimant - Lasham Gliding Society (LGS) - challenged the Civil Aviation Authority (CAA)'s decision to approve a change in air traffic controls in the airspace around Farnborough Airport.

The claimant's argument was that the permitted change increased the risk of a mid-air collision as it would lead to an increased number of aircraft - those being diverted away from the airspace around Farnborough Airport - using the uncontrolled airspace near the town of Lasham that was used by LGS and its fleet of approximately 240 aircraft.

It contended that in reaching its decision the CAA had breached its statutory duties under section 70 of the Transport Act 2000 by failing to secure a high standard of safety in the airspace and the most efficient use of airspace, and in doing so had acted irrationally.

In support of its contentions LGS submitted that the CAA did not itself carry out or rely on the factual or evidence-based analysis which would be necessary for it to reach a rational conclusion on safety, but had simply accepted the analysis undertaken by Farnborough Airport. It also argued that the CAA had misinterpreted the duty relating to efficient use of airspace by not basing its decision on the actual numbers of aircraft using the airspace. Its case was that the flaws in the analysis relied upon by the CAA were so obvious that no specialist knowledge was required to identify them and therefore the court should not afford the CAA an enhanced margin of appreciation.

The judge disagreed with all of these arguments. She held that the decision was taken in a regulatory context where the expert regulator had been given a wide discretion in the performance of its statutory functions and in respect of which the scope for judicial review was extremely limited. Airspace classification is a technical and specialised area of regulation, and it was not the court's place to assess the merits of competing tenable opinions on such highly technical issues.

In dismissing the claim, the judge concluded that the safety analysis was only part of a complex technical and predictive expert judgement, that there were no obvious flaws in the analysis, and that reliance on it did not fall outside the enhanced margin of appreciation that applies to the exercise of regulatory judgment in technical and specialised areas. She also ruled that the CAA had properly interpreted its statutory duty with regard to efficient use of airspace. Having done so, its decision making was not irrational, as it was entitled to consider the capacity of the aircraft to use the airspace in general terms, and not strictly on the basis of actual numbers.

The case reinforces the position that judicial review is not concerned with the merits of a decision and is eminently not suitable where, as it was in this case, the crux of the grievance is that the claimant simply disagrees with the decision maker's decision and reasoning. It also reinforces the 'deference' that is shown by the courts to the expertise, knowledge and experience of regulators making decisions in highly technical and specialist areas.

CE marking not sufficient to substantiate advertising claims for medical devices

R (Actegy Ltd) v Advertising Standards Authority concerned an application for judicial review of a decision of the Advertising Standards Authority (the ASA) to uphold complaints relating to an advertisement for a medical device that claimed to improve circulation and reduce swelling, pain and discomfort in the lower limbs.

The device fell within the regulatory framework of the EU's Medical Devices Directive (93/42/EEC - the MDD) and, as such, was CE marked as having undergone a clinical evaluation in relation to its efficacy and safety.

The MDD does not cover advertisement of medical devices. This falls under the Unfair Commercial Practices Directive (2005/29/EC - the UCPD) which prohibits product claims based on false information or information which is likely to deceive the average consumer (even if it is factually correct) and which causes or is likely to cause the consumer to purchase a product when otherwise they would not have done so.

The UCPD requires Member States to put in place arrangements to enable the trader to be required to furnish evidence supporting the accuracy of its product claims and, in the absence of such information, for claims to be considered inaccurate.

On receiving complaints about the advertisement for the product, the ASA requested the evidence in support of the claims that the manufacturer, Actegy, made in relation to it. In response, Actegy provided the clinical evaluation report which it had relied on for the purpose of obtaining CE certification, and which it said was sufficient substantiation of its claims. The ASA upheld the complaint on the basis that the report was not sufficiently robust to evidence the claims made.

In its judicial review, Actegy sought to argue that the ASA's decision had infringed the principle of proportionality in EU law and hence interfered with its right to free movement of goods. It also argued that the decision was irrational.

The court found that the ASA's requirement for evidence consisting of rigorous and relevant studies did not go beyond the requirement to furnish evidence in the UCPD and was proportionate. Neither was its approach irrational, as it could not be said that no reasonable regulatory authority could impose a requirement of rigorous and relevant evidence to substantiate claims made for the efficacy of medical devices.

The court considered that the manufacturer failed by a wide margin to demonstrate that the ASA's approach was inconsistent with accepted scientific practice, and had not shown that the ASA had failed to assess the totality of the evidence. The court noted that both parties accepted that the evidence used to substantiate the claims was subject to significant limitations. Each of them had adduced expert evidence which, although ultimately of little benefit to the Court, served at least to show that the ASA's conclusions had some expert support.

The court also found no legal error in the ASA's refusal to be persuaded by the product's CE certification under the MDD. Advertisements were governed by a different regime - the UCPD - and under this the ASA was entitled to carry out its own assessment. The claim therefore failed.

Investigatory Powers Act 2016 compatible with the European Convention on Human Rights

R (Liberty) v Secretary of State for the Home Department (National Union of Journalists intervening) constitutes Liberty's second challenge to the Investigatory Powers Act 2016 (the Act), following on from its successful EU law challenge to Part 4 of the Act last year.

The focus of the present case was on powers under the Act to -

  • conduct bulk interception of communications,
  • acquire communications data in bulk,
  • retain, and for public authorities such as the police to acquire, retained communications data,
  • conduct 'thematic' and bulk equipment interference (i.e. 'hacking'), and
  • retain and examine bulk personal datasets (such as travel records).

It was alleged that these powers are incompatible with Articles 8 and 10 of the European Convention on Human Rights (ECHR) which protect the right to private life and the right to freedom of expression respectively.

The relevant warrants are not directed towards particular individuals but are issued for the purposes of intelligence gathering, including to identify targets for more directed surveillance. As such, not all data obtained is either examined in depth or retained.

The claimant argued that the powers did not meet the requirement that interference with human rights must be 'in accordance with the law' as they lacked the minimum safeguards established by the ECHR in relation to the operation of covert surveillance regimes. Further, the powers were unnecessary and disproportionate in a democratic society, posing the risk of everyone unknowingly becoming susceptible to surveillance.

The Divisional Court dismissed the claim, refusing to issue the requested declaration of incompatibility. It made clear that it was concerned with the provisions of the Act itself, rather than any hypothetical action taken under it. As to that, the First Section of the European Court of Human Rights has already held that in principle bulk powers are compatible with the ECHR (Big Brother Watch v United Kingdom).

The Divisional Court stated that the statutory framework had to be read as a whole and that, taken together, it comprised a detailed set of interlocking safeguards to protect human rights. These include -

  • the fact data can be collected only for set statutory purposes, which impose a high threshold,
  • the need for warrants to be necessary for, and proportionate to, the relevant purpose,
  • various codes of practice issued under the Act providing guidance on the preservation of confidentiality and acting in the public interest,
  • the need for authorisation of a Judicial Commissioner, who has held high judicial office, and
  • individuals' right to appeal to the Investigatory Powers Tribunal (the IPT).

The court was particularly impressed by the 'double-lock' provided by the Commissioners and the IPT, which had been absent from earlier surveillance legislation.

In addition to its more general challenges to the Act, the claimant also argued that the legislation failed to respect lawyer-client communications as well as journalistic material, including the protection of sources.

Again, both points failed, with the court finding that the Act provides adequate protection to both classes of material.

The extra-territorial effect of the public sector equality duty

R (Hoareau & Bancoult) v Secretary of State for Foreign and Commonwealth Affairs relates to the ongoing dispute over the forced depopulation of the Chagos Islands, a colonial era possession of the Crown in the British Indian Ocean Territory. The Islanders, 'Chagossians', were removed between 1967 and 1973 to make way for a US military installation on the largest island, Diego Garcia, and now live largely in Mauritius, the Seychelles and the UK.

There have been a series of cases brought by exiled Chagossians, with this latest challenge concerning the lawfulness of the UK Foreign Office's decisions in 2016 to rule out resettlement of the Islands and provide a package of additional financial support instead.

The current case was brought on a range of grounds including irrationality, human rights breaches and unlawful consultation.

One of the key grounds of challenge was in respect of the public sector equality duty (PSED) in section 149(1) of the Equality Act 2010 (EA 2010). The PSED requires all public authorities in Great Britain to, in the exercise of their functions, have regard to the need to -

  1. eliminate unlawful conduct under the Act (including discrimination, harassment and victimisation);
  2. advance equality of opportunity between those with a protected characteristic and those without; and
  3. foster good relations between persons with protected characteristics and persons without.

One of the central issues in dispute was whether the second and third limbs of the PSED apply outside of Great Britain.

It was common ground that the first limb of the PSED relating to unlawful conduct under the EA 2010 applied only to Great Britain. This is because the part outlining unlawful conduct is confined to Britain, and to a lesser extent Northern Ireland, under section 217. It therefore cannot apply extra-territorially.

The second and third limbs of the PSED, however, have no such implicit geographical limit. Furthermore, Parliament specifically carved out certain immigration functions from the application of the second limb of the PSED in Schedule 18 to the EA 2010, whilst remaining consciously silent on the application of the PSED otherwise.

Drawing on the decision in R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs, the court held that the second and third limb of the PSED did apply outside of Great Britain.

Ultimately the outcome of the case did not turn on this finding. The claim was dismissed, with the court finding that the PSED had in any event been complied with, that the decision was not irrational and that neither the European Convention on Human Rights nor the Human Rights Act 1998 applied to the Chagos Islands. The other grounds were likewise dismissed.

The significance of the finding on the PSED is, however, notable as a restatement of the principle that certain aspects of the duty have extra-territorial effect. This has implications for any public body developing policy that will have an effect outside of Great Britain.

We note that permission to appeal has been granted in relation to the some of the grounds canvassed before the Divisional Court, but has been refused in relation to the PSED.

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