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.

Continue reading Return of the Cuts, Lessons from the Cuts Cases

TfL v Uber – Transport, Regulation and Disruptive Technology

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

A v Secretary of State for Health – The NHS, Devolution and Human Rights

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

RWE v Ofgem – Discrimination and Deference in Energy Regulation

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.

Continue reading RWE v Ofgem – Discrimination and Deference in Energy Regulation

Hunt v North Somerset – Judicial Review, Pyrrhic Victories, and Costs

As everyone who practises in the field of public law knows, judicial review has a habit of giving rise to the occasional pyrrhic victory – the apparent success that is actually a defeat. This can happen for a range of reasons. Since relief is discretionary, it is not always granted even where unlawfulness has been made out. When it is granted, it will not necessarily change the ultimate outcome. And, occasionally, success can simply come too late for any effective remedy to be available.

This last situation is the one considered by the Supreme Court in Hunt v North Somerset Council, where the question that arose was how to deal with costs when the claimant won on the law, but got no effective remedy. Put simply, for costs purposes in public law cases, is a pyrrhic victory really a victory or actually a defeat?

Continue reading Hunt v North Somerset – Judicial Review, Pyrrhic Victories, and Costs

R (Hemming) v Westminster – A Lesson in the Unintended Effects of EU Law

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

Nzolameso v Westminster – The Duty to Give (Good) Reasons

In Nzolameso v City of Westminster, the Supreme Court addressed itself to two related and important questions in public law. Where a public authority gives reasons for a decision, what standard of reasoning is expected of it? And where its reasons are silent about a matter to which it needed to have regard, how are the courts to interpret that silence?

The case is part of a wider trend in public law to raise the bar on the standard required of decision-making, and is therefore of considerable significance beyond its immediate context.

Continue reading Nzolameso v Westminster – The Duty to Give (Good) Reasons