Case law updates

R (National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department and another) [2018] EWHC 975 (Admin)

https://www.judiciary.uk/wp-content/uploads/2018/04/liberty-v-home-office-judgment.pdf

In a legal challenge by Liberty, the Secretary of State conceded an incompatibility between his power to compel telecoms operators to retain certain data and the Charter of Fundamental Rights of the European Union, and confirmed that the issue would be corrected by secondary legislation. Liberty applied again for an order to disapply the relevant primary statutory provisions (Investigatory Powers Act 2016), or for a declaration of incompatibility, as until the secondary legislation is amended unlawful retention of data continues. The Court made a declaratory judgment of incompatibility rather than an order of disapplication due to the delicate constitutional context and the public interests on both sides; this included a statement that the legislation must be amended within a reasonable time (not later than six months after the judgment).

  

Commissioner of Police Of The Metropolis V DSD & Anor [2018] UKSC 11

https://www.supremecourt.uk/cases/docs/uksc-2015-0166-judgment.pdf

Two victims of the serial rapist John Worboys (the respondents) brought a claim against the Metropolitan Police (the appellants) for breach of their rights under Article 3 of the ECHR, that no effective steps had been taken to investigate their serious complaints. They claimed that the police had a positive obligation to protect its citizens from Article 3 violations, including a systems duty to investigate and prosecute, and an operational duty to do so effectively. Further, they claimed that the actions of John Worboys constituted treatment prohibited by Article 3, and that in handling these complaints with such serious flaws the police breached their positive operational duty. The police contended that at common law they owed no duty of care to individual members of the public who might suffer injury due to a criminal’s actions; the reasons behind these contentions were also argued to hold true in a human rights context. The Supreme Court agreed with the respondents, confirming here the duty of the police to investigate breaches of Article 3 by a private individual as well as the State and its agents, and the duty to prevent such breaches alongside investigation.

 

Gallaher Group Ltd and others v CMA [2018] UKSC 25

https://www.supremecourt.uk/cases/docs/uksc-2016-0185-judgment.pdf

This case concerned a challenge on the basis of equal treatment. The Office of Fair Trading (OFT) issued a finding against 12 companies that certain price-fixing arrangements had an anti-competitive effect, and subsequently entered into early resolution agreements (ERAs) with some, offering reduced financial penalties in return for cooperation with their investigation. TM Retail Group Ltd (TMR) entered into an ERA with the OFT, as well as securing assurances that the finding against them would be withdrawn in the event of a successful third-party appeal. Such an appeal occurred, and the OFT refunded TMR’s penalties. When the OFT refused to refund the penalties of other companies with ERAs, the claimants brought a judicial review. At first instance, Collins J found that the assurances to TMR had been given in error and that such an error should not be repeated. The Court of Appeal disagreed, whilst the Supreme Court found that the OFT did not act unlawfully and that a mistake does not have to be repeated in the name of equal treatment. The Court also asserted more widely, and additionally, that equal treatment and substantive fairness are not free-standing heads of claim for judicial review but form a part of rationality and legitimate expectation.

 

Thornton Hall Hotel Limited v Wirral Council [2018] EWHC 560 (Admin)

http://www.bailii.org/ew/cases/EWHC/Admin/2018/560.html

The defendant granted planning permission for three semi-permanent marquees for the period of five years – but failed to attach this condition. The claimant, a competitor of the beneficiary of the planning permission, sought judicial review of the defendant’s decision, although significantly out of time. The Court decided, as it was a matter under its discretion, that it was in the public interest to allow the extension of time given the effect of the error, especially given that the beneficiary knew of it but failed to inform the defendant. The Court subsequently quashed the indefinite planning permission.

 

R (On the Application of Adath Yisroel Burial Society and another) v HM Senior Coroner for Inner North London [2018] EWHC 969 (Admin)

https://www.judiciary.uk/wp-content/uploads/2018/04/aybs-v-hmcoroner-judgment.pdf

The defendant introduced a policy to address concerns that Jewish families were being prioritised over other families by her officers, stating that ‘no death will be prioritised in any way over any other because of the religion of the deceased or family’. The claimants challenged this policy, arguing that it (1) violated Article 9 and Article 14 of the European Convention on Human Rights, (2) constituted unlawful discrimination under the Equality Act 2010, and (3) constituted a breach of the public sector equality duty in s. 149 of the Equality Act. The Court ruled in favour of the claimants on all grounds but (3), reasoning further that the policy unlawfully fettered the Coroner’s discretion and was incapable of rational justification. Singling out religious beliefs for exclusion from consideration was decided here as inadvertently discriminatory.

 

R (Uber London Limited) and others v Transport for London [2018] EWCA Civ 1213

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1213.html

The appellant, Transport for London, imposed a licence condition on private hire vehicle contractors to provide a voice contact facility for passengers wishing to make a complaint in emergency and non-emergency situations. The lawfulness of this requirement was challenged by the respondent, Uber, arguing that it constituted disproportionate interference with rights to freedom of establishment of operators contrary to Articles 49 and 54 of the TFEU. At first instance, the Court held that TfL’s insistence on a voice contact facility for all complaints was disproportionate, stating that non-emergency complaints could be handled, for example, via the booking app. The Court of Appeal upheld TfL’s licence condition, pointing to Uber’s own evidence that customers using the app would still prefer voice contact. The Court also ruled that the judge’s level of review was too intensive: the regulation of private hire vehicles is not an area of EU competence, therefore, TfL should be accorded a wider margin of discretion as to the appropriate level of consumer protection.

 

Coulter v Independent Press Standards Organisation CIC (IPSO) [2018] EWHC  919 (Admin)

https://www.judiciary.uk/wp-content/uploads/2018/04/coulter-v-ipso-2018-ewch-919-qb.pdf

The claimant was seeking a judicial review of a decision made by the Independent Press Standards Organisation (IPSO) not to uphold a complaint made by the claimant concerning reports in certain newspapers about a campaign meeting held at the House of Lords. Alongside the substantive issues of the challenge to the IPSO’s decision, the Court also considered whether the latter was amenable to judicial review. In the event, however, as the Court dismissed these substantive issues, it declined to decide the issue of jurisdiction.

 

Acts Since Publication

 

EU (Withdrawal) Act 2018

http://www.legislation.gov.uk/ukpga/2018/16/contents/enacted

The Act allows for the repeal of the European Communities Act 1972, introduces mechanisms to convert EU law as it stands at the moment of exit into domestic law, administers devolved decision-making powers, and introduces powers to make secondary legislation to address deficiencies in retained EU law.