London, the Centralisation of Power, and the Causes of Brexit

Referendums present us with apparently simple choices, but the binary nature of the questions they ask masks layers of complexity. Their outcomes are shaped by votes cast with a wide range of motivations, many unrelated to the issue on the ballot paper. They attract protest voting. And they are incapable of answering the follow-on questions to which their results inevitably give rise.

The EU referendum was no exception to these rules. Unpicking the strands which account for the Brexit vote will take time and careful analysis. When the history is written, it will be shown to have multiple and complex causes.

However, this complexity should not be an excuse for ignoring what is already obvious and requires no further study. Some things really are quite simple. The pattern of voting tells its own clear story.

This is that while the referendum question was about the EU, the result reveals less about Europe than it does about the nature of the constitutional arrangements within the UK itself. These, especially in England, are fundamentally unfit for purpose.

The outcome of the referendum was forged not in Brussels, but in London.

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Can a Public Body Challenge its own Delegate?

A single interesting point of law emerges from the High Court judgment in South Staffordshire & Shropshire Healthcare NHS Foundation Trust v St George’s Hospital Managers, summarised by the judge, Mr Justice Cranston, as concerning ‘the capacity of a body to seek judicial review of a decision which it could have made itself‘.

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EU Referendum – The End of Fear?

When all else fails, sometimes only fear will do. ‘Though most modern writers and politicians oppose political fear as the enemy of liberty…they often embrace it, in spite of themselves, as a source of political vitality’*.

Fear, both as a basis for argument and a political technique, has been fully in evidence in the EU referendum debate. It has its practitioners on both sides of the campaign. But its most systematic and effective use had been in the strategy adopted by the UK government to argue the case for remaining in the EU.

Until now, this has been facilitated by the law governing the referendum, but as we have entered the last 28 days of the referendum, the same law is now making it more difficult to pursue.

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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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The EU Referendum – Four Months to Go, Five Things We Learned

The government has announced that the UK will vote on whether to leave or remain in the European Union on 23 June. Aside from that date, here are five other things we learned about the referendum within the last ten days…

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Understanding Parliamentary Purpose – Rights of Women, Statutory Interpretation and the Constitution

Civil legal aid is now available in such a limited category of cases that most practising lawyers will rarely (if ever) encounter it. So there is a risk that the interesting constitutional issue at the heart of the recent judgment in Rights of Women v The Lord Chancellor will fail to get the recognition it deserves.

In that case, the Court of Appeal declared unlawful a set of regulations that would have significantly limited the ability of victims of domestic violence to obtain legal aid. This briefly made the news headlines, before being displaced by the even bigger legal story of the same day, the Supreme Court’s conclusion (in Jogee) that the courts had been misapplying the law on criminal joint enterprise for the past thirty years.

However, aside from the importance of its impact in domestic abuse cases, Rights of Women is worth a second look because of its wider interest to anyone involved in making, relying on, or seeking to challenge delegated legislation.

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