Category: Public/Private


ALBA Conference 2019: A Review (Part 2)

15 October 2019 by

This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.

Article 14 ECHR discrimination challenges to social welfare measures: the second benefit cap case in the Supreme Court: Raj Desai

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Credit: The Guardian

Introduction: The ‘Benefit Cap’

Mr Desai examined Article 14 ECHR through the prism of two ‘benefit cap’ cases: R (on the application of DS and others) (Appellants) v Secretary of State for Work and Pensions (Respondent) [2019] UKSC 21 (“DA & DS”) and R(SG and ors) v Secretary of State for Work and Pensions [2015] UKSC 16 (“SG”).

Both were decisions of the Supreme Court concerning the benefit cap. This provides that a household’s total entitlement to welfare benefits cannot exceed an annual limit. The cap is disapplied if a certain amount of relevant work is completed.

In common with many Article 14 ECHR claims, both cases raise complex issues about the proper constitutional role of the courts. SG (the first benefit cap case)


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ALBA Conference 2019: A Review

7 October 2019 by

This post is the first in a series of five reports by Conor Monighan from this year’s conference held by the Administrative Law Bar Association. We will be publishing the next four posts over the next month every Monday.

This year’s ALBA conference featured an impressive list of speakers. There were talks from a Supreme Court judge, a former Lord Chancellor, top silks, and some of the best academics working in public law.

alba

The conference covered a number of practical and substantive topics. The highpoint was an address given by Lord Sumption, in which he responded to criticism of his Reith Lectures. This post, together with those that follow, summarises the key points from the conference.


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ALBA Summer Conference 2018: A Review (Part 1)

13 September 2018 by

alba

Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

This year’s ALBA conference featured an impressive list of speakers and they did not disappoint. Delegates heard from a Supreme Court judge, an Attorney General, top silks, and some of the best legal academics working in public law.

The conference dedicated much of its time to public international law, a discipline which is often thought to have little relevance for most public lawyers. In fact, the conference showed that domestic public law is heavily intertwined with international law. This post summarises the key points from the conference, with a particular focus on human rights.
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Supreme Court: unfairness/equal treatment only an aspect of irrationality

16 May 2018 by

R (o.t.a. Gallaher et al) v. Competition and Markets Authority  [2018] UKSC 25, 16 May 2018, read judgment

UK public law is very curious. You could probably write much of its substantive law on a couple of postcards, and yet it continues to raise problems of analysis and application which tax the system’s finest legal brains.

This much is clear from today’s Supreme Court’s decision that notions of public law unfairness and equal treatment are no more than aspects of irrationality.

The CMA (then the OFT) were investigating tobacco price-fixing. Gallaher et al reached an early settlement with the OFT, at a discount of their fines. Another price-fixer, TMR, did likewise, but extracted an assurance from the OFT that, if there were a successful appeal by others against the OFT decision, the OFT would apply the outcome of any appeal to TMR, and accordingly withdraw or vary its decision against TMR.

6 other parties then appealed successfully. TMR asked and got its money back from the OFT relying on the assurance.

Gallaher et al tried to appeal out of time, and were not allowed to. They then turned round to the OFT and said, by reference to TMR: why can’t we have our money back?

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Supreme Court: no-win-no-fee costs regime compatible with Article 6

22 July 2015 by

11769Coventry v. Lawrence [2015] UKSC 50, 22 July 2015, read judgment here

The pre-April 2013 Conditional Fee Agreement system, under which claimants could recover uplifts on their costs and their insurance premiums from defendants, has survived – just. It received a sustained challenge from defendants to the effect that such a system was in breach of their Article 6 rights to a fair trial.

In a seven-justice court there was a strongly-worded dissent of two, and two other justices found the case “awkward.”

The decision arises out of the noisy speedway case about which I posted in March 2014 – here. The speedway business ended up being ordered to pay £640,000 by way of costs after the trial. On an initial hearing (my post here), the Supreme Court was so disturbed by this that they ordered a further hearing to decide whether this was compatible with Article 6 .

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Supreme Court: the common law working out illegality defence

23 April 2015 by

_41773060_mtic_carousel416x302Jetivia v. Bilta [2015] UKSC 23, 22 April 2015 – read judgment

Nigel Farage is quoted yesterday as preferring immigrants to be Australians and Indians rather than EU citizens, because they probably speak English and “understand common law.” 

Nice coincidence, then, that on the same day the Supreme Court came out with a perfect illustration of the potential difficulties of the common law process. This is the latest (but unlikely to be the last) instalment from the Court going to the question as to whether some crime by a claimant ought to stop his claim in its tracks.

The issue is well demonstrated by this claim, in effect a carousel fraud (see pic and see my post here), in which a company the victim of a fraud seeks to recoup losses from the fraudsters and is met with the argument – but your directors were in on the fraud too. How does the law deal with this?

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Consultation again – this time for dentists

19 December 2014 by

simple-consultation-y200British Dental Association v. General Dental Council [2014] UK EWHC 4311 (Admin) 56, Cranston J, 18 December 2014 – read judgment UPDATED

Philip Havers QC and Jeremy Hyam of 1COR were for the successful Claimants in this case. They had no part in the writing of this post.

The Supreme Court has very recently reviewed the law on consultation and unlawfulness in the Moseley case (read judgment, and my post here). The present case is a good illustration of those principles in practice.

Dentists have to be registered with the General Dental Council. The GDC regulate them and may bring proceedings against them if their fitness to practise is impaired. All that regulation has to be financed by annual fees, and the current challenge by the dentists’ trade union (BDA) was to a decision by the GDC to raise the annual fee to £890 per dentist.

As I shall explain, Cranston J decided that the consultation in advance of that decision was unfair and hence unlawful.

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Consultation duty gets to the Supreme Court

29 October 2014 by

NL33293-039Moseley R (ota) v. London Borough of Haringey [2014] UK 56  – read judgment

Lord Wilson posed the question, answered today by the Supreme Court, with concision. When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation?

The judgments reveal the surprising fact that the core principles of consultation (named after Gunning, as public lawyers will know) have never been approved by the Supreme Court or its predecessor, the House of Lords. The Court was happy to endorse them as embodiments of fairness. But it went on to consider the duty to consult on rejected alternatives – as very recently debated by the Court of Appeal in the Rusal case – see my post here.

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Consultation process not unfair after all, says Court of Appeal

12 October 2014 by


Aluminum-Warehouse21United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  [2014] EWCA 1271 (Civ) – read 
judgment

Deciding whether a given consultation process conducted prior to some administrative decision was or was not sufficiently unfair to warrant  challenge is not an easy task. Three connected problems commonly arise:

(1) did the public body provide adequate information to enable properly informed consultation 

(2) was the consultation at a formative stage of the decision-making process, so it was a real rather than sham process?

(3) did the consultation encompass sufficient alternatives?

In this case, the judge said (see my post here) that consultees were missing important information under (1), and, on the particular facts of the case ,it should have consulted on an option which it had rejected, and so found a breach of (3).

The Court of Appeal disagreed. Both findings were wrong. The consultation process was not unfair.

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Private nuisance – Article 6 and the costs conundrum

23 July 2014 by

400px-Ffos_Y_Fran_open_cast_mine,_Merthyr_TydfilCoventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment

Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases.  Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.

Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small”  local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.

Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.

In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).

So each case is about a costs burden, which is capable of causing injustice to one or other party.

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Government still on the standing warpath

20 July 2014 by


706x410q70fdb2ae613e49ab38bae8e09d0a46a228O (R o.t.a) v. Secretary of State for International Development [2014] EWHC 2371 (QB) 14 July 2014  read judgment

One proposal of the Lord Chancellor on reforming judicial review last year was the narrowing of the tests for standing, namely the ability to come to court and complain about some public law unlawfulness: see, e.g. here. The idea of statutory reform of standing was later shelved, but the current case is an interesting example of the Government probing the boundaries of the tests laid down by the courts.

The underlying dispute concerns the funding of international aid to Ethiopia by DFID. Mr O is an Ethiopian citizen who says he was the victim of human rights abuses in the course of a programme to re-settle villagers in new and larger communes – this programme (the Commune Development Programme or CDP) is said to involve forced internal relocation. As a result, O fled to Kenya, leaving his family behind. There is evidence of widespread human rights abuses perpetrated in this process of “villagisation”.

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The paradox beneath Strasbourg’s French veil ban decision

16 July 2014 by

french-veil-ban-001S.A.S v France (Application no. 43835/11) – read judgment

The Grand Chamber of the European Court of Human Rights has rejected a challenge to a French law which prohibits the wearing of veils in public. The ruling is, of course, of great political and media interest, but it is also significant from a legal perspective. In a lengthy and detailed judgment, the Court ultimately accepts that, as a matter of principle, a government can legitimately interfere with the rights of individuals in pursuit of social and cultural cohesion.

On 11th April 2011, Law no. 2010-1192 came into force in the French Republic. Subject to certain limited exceptions, the law prohibits anyone from wearing any clothing which conceals their face when in public places, on pain of a 150 euro fine, and/or compulsory citizenship classes. Whilst phrased in general terms, the most obvious effect of the law, and its clear intention, is to ban the niqab (a veil that leaves only the eyes visible) and the burka (a loose garment covering the entire body with a mesh screen over the face).

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Supreme Court revises confiscation order via A1P1

18 June 2014 by

_41773060_mtic_carousel416x302R v Ahmad and others [2014] UKSC 36, 18 June 2014 – read judgment

A bit of a familiar refrain in which A1P1, the right to property, comes in and stops an order being made which would otherwise be lawful under statute: see my recent post here on the Eastenders case.

The case concerns confiscation proceedings following the conviction of two sets of defendants for carousel fraud.  A carousel fraud involves setting up a whole series of paper transactions to generate an apparent entitlement to reclaim VAT from the tax man: see the pic for an example. The VAT is repaid, at which point the money, and the fraudsters, disappear into the dust. But in these cases, they were found, prosecuted and confiscation orders made against the individuals to try and get the money back.

In the first case, the Ahmad defendants ran a company MST, and took £12.6m (£16.1m uprated for inflation) off the taxman. In the second, the Fields defendants got £1.6m (including inflation) via their company, MDL.

In each case, the order was made in those sums against each individual defendant. So each Ahmad defendant was ordered to pay £16.1m, even if some of that £16.1m was thereafter repaid by another defendant. It was this element of the order which the Supreme Court revised.

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Richard III: fairness and public interest litigation

28 May 2014 by

King_Richard_III__1666500aThe Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others [2014] EWHC 1662 (QB) 23 May 2014 – read judgment

Some 527 years after his death, Richard III’s skeleton was found beneath a car park in Leicester. The Plantagenet Alliance, a campaigning organisation representing a group of collateral descendants, sought judicial review of the decision taken by the Secretary of State to exhume and re-inter the monarch in Leicester Cathedral without consulting them and a wide audience.

The case had become a bit of a stalking horse for Lord Chancellor Grayling’s plans to reform judicial review: see my post here. Grayling may have backed off for the moment from his specific plans to reform standing rules, though he still has it in for campaigning bodies participating in judicial reviews. As we will see, counsel for MoJ had a go at saying that the Alliance had no standing, but to no avail.

But MoJ had better points, and was successful overall. And this is the moral of the story. You cannot sensibly justify the bringing of entirely meritless judicial review. But it is wrong to seek to defeat a meritorious claim by relying on standing points, without considering the public interest of the underlying case. As I pointed out in my post, the irony of the cases chosen by MoJ last year to make its case that the standing rules were all very awful were ones where government had been behaving unlawfully.

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