Lasting Powers of Attorney: recent key developments
The Supreme Court in R (o.t.a. Gallaher et al) v. Competition and Markets Authority  UKSC 25 dealt with concepts at the core of UK public law, finding that there are no freestanding principles of fairness and equal treatment, and re-examining the grounds on which judicial review can be brought.
The Competition and Markets Authority’s predecessor, the Office of Fair Trading (“OFT”), commenced an investigation in 2003 into tobacco price-fixing, and in 2008 a Statement of Objections was sent to 11 retailers and two manufacturers. Six parties under investigation, including the two respondents in Gallaher, concluded Early Resolution Agreements (“ERA”) with the OFT. Such agreements indicated to the signatories the level of penalties to be imposed and offered them the opportunity to reduce these through procedural co-operation. The representatives of one of the parties who concluded an ERA with the OFT, TM Retail, approached the OFT to see what the outcome would be if another party, who had not entered into an ERA, successfully appealed against an OFT decision on tobacco price fixing. The resulting exchange led TM Retail to believe that a successful appeal by another party would result in a withdrawal or variation of the decision against TM Retail even though they had concluded an ERA. These communications were not shared with other organisations that had concluded ERAs with the OFT.
In 2010 the OFT decision against those under investigation for tobacco price fixing was made. TM Retail and the respondents elected to pay the penalties imposed in the ERAs, taking the benefit of the reductions. Other parties against whom the decision had been made sought to appeal against it, and in 2011 the Competition Appeals Tribunal allowed six appeals. TM Retail sought to rely on their previous communications with the OFT to take advantage of these decisions. The OFT concluded that “in the light of the particular assurances” provided to TM Retail it would repay the penalty and make a contribution to their costs. The respondents wrote to the OFT arguing that they also should be given the benefit of the assurances made to TMR. These requests were refused. The respondents lodged judicial review proceedings against the OFT claiming that they should also have had their penalty repaid and a contribution to costs.
The respondents based their arguments on the requirements of fairness and equal treatment, claiming that if TM Retail had their penalty repaid by the OFT and received a contribution to costs, then they too should receive a payment. The appellants argued that the representation outside of the Early Resolution Agreement had been made to TM Retail in error, and the requirements of fairness and equal treatment did not require this error to be replicated. The High Court agreed that the principle of fairness and equal treatment did not require a mistake to be replicated. The Court of Appeal, reversing the decision, held that the OFT should not be permitted to resile from a mistake because of the unfair and unequal treatment of the respondents that would result.
The Supreme Court cut through the reasoning of counsel for all parties and both lower courts, ruling that a decision could not turn on the applicability of the principle of equality and fairness because no such freestanding principle existed. Lord Carnwath stated that “[w]hatever the position in European law or under other constitutions or jurisdictions, the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law”, and that “[s]ubstantive unfairness... is not a distinct legal remedy”.
Any shockwaves that Lord Carnwath’s statements might have made are dampened to some extent by the Court’s subsequent reasoning and examination of UK case law. It is clear that fairness and equality are accorded constitutional significance (they were described as fundamental principles of a democratic society), but that Lord Diplock’s tripartite categorisation of grounds for judicial review (illegality, irrationality and procedural impropriety) has been preserved.
The Court cited with approval Lord Hoffman’s finding in Matedeen v Pointu  1 AC 98 that “treating like cases alike and unlike cases differently is a general axiom of rational behaviour” but found that a court cannot strike down a measure simply because of inconsistency. Lord Sumption stated that “[t]he common law principle of equality is usually no more than a particular application of the ordinary requirement of rationality imposed on public authorities.”
The Court found that the conduct of the OFT in 2008 may have given rise to a legitimate expectation of equal treatment but a decision to frustrate that legitimate expectation could only be struck down if it was found to irrational.
Procedural unfairness was confirmed as a long established ground for judicial review, but it was also confirmed that a court could not strike down a measure simply because of substantive unfairness.
The unfairness and unequal treatment in this case was not sufficient to make the decision of the OFT irrational. The Court was content to find that the OFT had made a rational decision in repaying TM Retail in 2012, but not other parties, because of the position it found itself in having mistakenly made representations to TM Retail. TM Retail had sought and obtained an assurance which they claimed to have relied on, the other parties who had not obtained an assurance “knew what they were doing and accepted it with their eyes open”. The OFT could “reasonably take the view” that, if they did not honour their assurance to TM Retail, then TM Retail would have grounds for an out of time application to appeal to the Competition Appeals Tribunal. The other parties were not in that position, so it was open to the OFT to refuse to refuse to repay their penalties or contribute to their costs.
The findings of the Supreme Court in Gallaher show a desire to keep the principles of public law in the UK lean, and reveal another gap between UK and EU jurisprudence. Lord Sumption spoke of it being important not to unnecessarily multiply categories of grounds for judicial review because of the danger of undermining the coherence of the law. Whilst acknowledging that a principle of equal treatment existed in EU law the court were not willing to recognise its applicability or a comparable UK principle even in the field of competition law which has a European flavour to it.
Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.
As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
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