National Aids Trust v NHS England – Public Health and the Interpretation of Statute

The Court of Appeal judgment in R (National Aids Trust) v NHS England is concerned with the allocation of responsibility for funding certain types of HIV treatment on the NHS.

At its narrowest, the case addresses the specific (though important) question of whether the power to fund prophylactic medicine for HIV lies with local authorities or with the NHS Commissioning Board (NHS England).

More generally, it serves as an unflattering critique of the legislation which underpins the allocation of roles and responsibilities within the health service.

And, at its widest, it adds usefully to the case law on how to understand the vires of a public authority when it lies within a badly-drafted, and hard to interpret, statutory regime.

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The Duty to Follow Policies (and its Limits)

If a public body adopts a policy about how it will exercise one of its functions, it must follow it.

This principle has been developed over the last 15 years in a series of cases brought against the Secretary of State for the Home Department. Initially it was regarded as an outworking of the doctrine of legitimate expectation (Saadi at [7]). More recently it has been treated as a freestanding ground of judicial review which is ‘a requirement of good administration‘ (Nadarajah at [68]) and ‘a basic public law right‘ (Lumba at [58]).

The full extent to which the duty has now been cut loose from its traditional moorings in legitimate expectation became evident last year in the Supreme Court case of Mandalia. In that case the claimant successfully relied on the Home Office’s failure to follow an internal policy – a ‘process instruction’ to civil servants – of which he neither had, nor could have had, any knowledge at the time when it should have been applied. Following Mandalia, even an unpublished policy is now binding.

The duty is qualified by another basic public law principle, that policies should not fetter discretion. If the circumstances of an individual case provide a ‘good reason‘ for doing so (Lumba at [26]) a public body may, and sometimes must, depart from its own policy.

Subject to this qualification, the requirement to follow existing policies has developed into an important obligation on public bodies. However, two recent cases expose some of the limits of reliance on policies as a ground of public law challenge.

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Holmcroft v KPMG – Can a Firm of Accountants be a Public Body?

The ‘Big Four’ accounting firms are commercial organisations par excellence. And they are highly successful. They could be the poster children for globalised capitalism in the Twenty-first Century.

In that capacity, from time to time, their collective strength in certain product markets engages the attention of the competition authorities – as it did, for instance, in the UK Competition Commission’s inquiry into statutory audit services.

But competition law is about preventing the abuse of commercial power, and public law is about preventing the abuse of governmental power. These legal disciplines come from the opposite ends of the public-private spectrum. Are there any circumstances in which an organisation as intrinsically commercial as a major accounting firm can also be regarded as a public body and subject to the requirements of public law?

This was the question addressed by the Divisional Court in R (Holmcroft Properties) v KPMG. The case is revealing as to the courts’ approach to applying public law in a complex public-private environment, and in particular their failure to form a coherent view of how regulation operates.

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Damages and the Competence of the Administrative Court

The award of damages is not a remedy traditionally available in judicial review. In public law proceedings, the purpose of a claim is to identify unlawfulness and bring it to an end, not to compensate those who have been affected by it.

In recent years, however, the non-financial purity of judicial review has been eroded by a number of developments. In particular, monetary compensation is now available in some cases where the source of the wrong was non-compliance with either EU law (Francovich damages) or the European Convention on Human Rights (under section 8 of the Human Rights Act 1998).

But does the Administrative Court, without any real track record in this area, have the competence to carry out an assessment of damages in a complex case?

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Drax v HM Treasury – How Green (or any other) Subsidies Can Be Withdrawn Without Notice

Renewable energy has been subsidised in the UK for at least 25 years. However, the nature, scope and level of the subsidy has been subject to significant change over time. In recent years, due to a range of fiscal and political pressures on the government, various support schemes have been either scaled back or abandoned.

Government subsidies provide an incentive to invest in commercial activities which would otherwise be uneconomic. That is their point. So what happens if a business, having made those investments in the expectation of a subsidy, finds that it is then withdrawn with little or no warning? Does it have any legal right to a notice period, or compensation in lieu of one?

This was the question considered by the High Court in the recent case of Drax v HM Treasury, which has important implications for business planning in any industry which currently benefits from government financial support.

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Four Short Points on Interpretation

The rules of interpretation in public law, though apparently of little interest to academic lawyers, and never taught in law schools, are fundamental to the day-to-day work of anyone practising in the area.

This is not only because most public authorities operate within a statutory framework which must be properly understood if they are to act intra vires, but because they themselves generate huge volumes of written documents – orders, directions, regulations, consents, licences, authorisations, policies, approvals, determinations, guidance (and so on) – all of which fall to be interpreted within a public law context.

Because public law is, as Martin Loughlin of the LSE observes, ‘an autonomous discipline with its own distinctive methods and tasks’, its principles of interpretation differ in important respects from those applying to private law documents. In two cases decided on the same day, the Supreme Court has emphasised four important elements of these principles.

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Return of the Cuts, Lessons from the Cuts Cases

Successive waves of public sector spending cuts imposed by UK central government since 2010 have generated a series of judicial reviews – the ‘cuts cases’. Many of these are challenges to the difficult choices that local authorities have had to make in reducing the provision of public services to stay within their shrinking budgets.

The cases are interesting not because they present a coherent narrative – they do not, although they certainly exhibit persistent themes – but because they test the boundaries of territory into which the courts have traditionally been reluctant to tread; namely whether to quash, on public law grounds, decisions which are driven by the need to allocate scarce resources between competing demands. As such, they tell us something about the considerable capabilities, but also the ongoing limits, of modern judicial review.

On 25 November 2015, the Chancellor of the Exchequer, George Osborne, revealed the next wave of public sector ‘austerity’ at more or less the same time as a number of earlier cuts cases were receiving judgment. Both offer us some useful pointers to the future.

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