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 So what happens if a business, having made those investments in the expectation of a subsidy, finds that it is then withdrawn with little or no warning?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.
Continue reading Drax v HM Treasury – How Green (or any other) Subsidies Can Be Withdrawn Without Notice
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.
The problem with David Cameron’s long-awaited ‘deal’ with the rest of the EU, aside from the fact that it currently exists only as a set of proposals which will require the agreement of all 27 other member states, is that over the last year he somehow contrived to place on it a weight of expectation that it would always be unable to bear.
The proposals, announced by Council President, Donald Tusk, with a heavy-handed Shakespearean nod to the forthcoming EU referendum – ‘To be, or not to be together, that is the question…’ – are bound to disappoint anyone who fancied that they would signal a radical new direction in the UK’s relationship with the wider EU. But that unrealistic expectation also deflects attention from their most important feature.
Continue reading Brief thoughts on David Cameron’s EU ‘deal’
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.
Technology develops rapidly. The law does not. In consequence, and with increasing frequency, new technology is being introduced into a legal environment that was not designed to accommodate it.
To what extent is the law self-adapting, addressing itself to technological solutions that could not even have been contemplated when it was originally written?
This was the question considered by the High Court in Transport for London v Uber London Ltd, a case which is interesting not only on its own facts, but also because it draws attention to how regulatory systems need to become more responsive in an era of rapid technological change.
Continue reading TfL v Uber – Transport, Regulation and Disruptive Technology
Each year, at least 1000 young women, but perhaps as many as twice that number, travel from Northern Ireland to another part of the United Kingdom in search of an abortion. They do so to avoid the criminal liability that (in most cases) still attaches to terminations of pregnancy in Northern Ireland, and to rely instead on the more liberal legal regime prevailing in England, Scotland and Wales.
Should they be entitled to obtain abortions free on the National Health Service?
The answer to this question, which was considered by the Court of Appeal in A (a child) v Secretary of State for Health, reveals the full extent to which, under the UK’s devolution settlement, the disaggregation of the NHS into four discrete health services – one for each of the four constituent territories* of the United Kingdom – is now legally entrenched. By implication, it also asks important questions about the effect of future devolution within England.
Continue reading A v Secretary of State for Health – The NHS, Devolution and Human Rights
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.