There are many things that seem unsatisfactory about the judgment of the High Court in RWE Generation v Gas and Electricity Markets Authority, apparently reflecting the judge’s own evident dissatisfaction with aspects of the claim.
However, in spite (or perhaps because) of this, the case has important things to say about how the courts treat discrimination claims in complex regulatory cases, both in the energy industry and beyond.
The argument that sex shop operators should not have to pay the full costs of regulating their own industry, but that these should be met instead out of general public funds, is hardly the stuff of which causes célèbres are made. So perhaps it is unfortunate that the first test case on the important Provision of Services Regulations 2009 should arise from precisely these facts.
Nonetheless, the case, which is the subject of a recent Supreme Court judgment in R (Hemming) v Westminster City Council, is likely to be significant beyond the narrow limits of its factual context.
Not only does Hemming have something to say about how regulatory systems in general are funded – as evidenced by its raft of interveners which included the Law Society, Bar Council, Local Government Association and HM Treasury – but it also draws attention to the largely neglected subject of how the Provision Of Services Regulations 2009 cut across well-established areas of UK regulatory law, with uncertain future consequences.
Continue reading R (Hemming) v Westminster – A Lesson in the Unintended Effects of EU Law