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.
Continue reading Holmcroft v KPMG – Can a Firm of Accountants be a Public Body?
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?
Continue reading Damages and the Competence of the Administrative Court
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…
Continue reading The EU Referendum – Four Months to Go, Five Things We Learned
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.
Continue reading Understanding Parliamentary Purpose – Rights of Women, Statutory Interpretation and the Constitution
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’