UK: Public Law Case Update - June 2018

Last Updated: 10 July 2018
Article by John P. Cooper, Ravi K. Randhawa and Kieran Laird

Parliament can be given time to fix provisions which are non-compliant with EU law

R (National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department and another

Under Part 4 of the Investigatory Powers Act 2016 the Secretary of State has the power to issue 'retention notices' requiring telecoms operators to retain certain data. Liberty challenged this power on the basis that it is not compatible with the Charter of Fundamental Rights of the European Union. In particular it claimed this was because: (a) in the area of criminal justice Part 4 does not limit access to retained data to the purpose of combating "serious crime"; and (b) that access is not subject to prior review by a court or an independent administrative body.

The Secretary of State conceded the incompatibility and confirmed that the issue would be corrected by secondary legislation. The case before the Divisional Court was about what relief should be granted in light of that concession.

Liberty applied to the Court to make an order disapplying Part 4 on the basis that, until the amending secondary legislation is approved, unlawful retention of communications data continues. Liberty requested that, in the alternative, the Court make a declaration of incompatibility.

The Court relied on R (Chester) v Secretary of State for Justice as authority that there is no automatic rule that national legislation must immediately be disapplied once it is held to be incompatible with EU law. There is nothing in EU law which prevents a Member State from having national legislation which permits the retention of data; rather the incompatibility stemmed from the failure to have certain safeguards in the legislation. The requirement for an alternative legislative scheme to be imposed in order to rectify the incompatibility made the situation distinguishable from one where a provision of incompatible national legislation can simply be ignored or overridden by EU law.

Refusing to make an order for disapplication the Court noted that this was an important constitutional case where there were vital public interests at stake on both sides, and ruled that making an order for disapplication (a coercive form of order which can be enforced by the courts) would not be appropriate in such a delicate constitutional context. Instead it favoured the more cautious approach of making a declaratory judgment of incompatibility (albeit on a narrower basis than that sought by Liberty) which included a statement that the legislation must be amended within a reasonable time and in any event not later than around six months from the date of the judgment.

Is inequality of treatment just irrational?

Gallaher Group Ltd and others v CMA

Following its investigation into the tobacco market, the Office of Fair Trading (OFT) issued a finding against 12 companies that certain price fixing arrangements had an anti-competitive object and/or likely effect (the Tobacco Decision).

The OFT entered into early resolution agreements (ERAs) with some of the companies, offering them reduced financial penalties in return for their co-operation with its investigation. TM Retail Group Ltd (TMR) entered into one such ERA. At the same time, it also secured assurances from the OFT that the Tobacco Decision against TMR would be withdrawn or varied in the event of a successful third party appeal against that decision.

Six parties who had not entered into ERAs went on successfully to appeal the Tobacco Decision. On the basis of the assurances it had given, the OFT then refunded the penalties TMR had previously paid, plus interest and legal costs.

When other companies with ERAs who had not obtained similar assurances to TMR found out about the settlement that the OFT had reached, they also requested to be refunded the penalties they had paid. The OFT refused these refunds, and the claimants, who fell into this category, brought a judicial review. The case concerned whether refunding TMR but refusing refunds to other companies was a breach of the principle of equal treatment or was unfair.

At first instance, Collins J found that the assurances to TMR had been given in error and the effects of that error should not be replicated due to cost to the public purse. The Court of Appeal disagreed, finding that the OFT's refusal to pay the appellants was unfair, in breach of the duty equal treatment, and not objectively justified. The Supreme Court unanimously allowed the appeal by the CMA (the OFT's statutory successor), finding that the OFT did not act unlawfully.

The main point of the judgment is that a mistake does not have to be repeated in the name of equal treatment. However, the main interest in the case lies in the Court's wider discussion. Although it had not been a point of contention between the parties, the Supreme Court took the opportunity to assert that the concepts of equal treatment and substantive fairness are not free-standing heads of claim for judicial review. Instead they are subsets of the concept rationality and legitimate expectation.

It remains to be seen whether this unexpected conclusion will make any difference to the threshold that must be met to succeed in challenges on the basis of equal treatment.

Time for bringing a judicial review extended by six years

Thornton Hall Hotel Limited v Wirral Council

The local authority granted planning permission for the erection of three semi-permanent marquees. It decided that the permission was to be for a period of five years but failed to attach this condition to its final published decision. This meant that the planning permission was given for an indefinite period.

The claimant, a competitor to the beneficiary of the planning permission, sought judicial review of the council's decision notwithstanding that it was significantly out of time - the standard rule being that a judicial review challenge shall be brought promptly and in any event within three months (now six weeks for planning decisions) of the relevant decision. The council did not defend the claim on the timing point, but it was contested on this basis by the interested party (the beneficiary of the planning permission).

Time limits for judicial review claims are strictly enforced, but they can be extended at the discretion of the court, i.e. where it considers there is a good reason to depart from the general rule and allow the extension of time being sought.

In this case, the Court determined that, while it clearly would have been preferable for the error to have been brought to light earlier, it was in the public interest to allow the extension of time given the effect of the error. A key factor the Court took into account in reaching its decision was that the beneficiary of the planning permission (the interested party) was aware that the council had made the error but failed to draw the council's attention to it - instead it chose to remain silent about it. It was therefore unattractive for it to claim that the claimant and the council were responsible for the delay in the issue coming to light. The judge confirmed that if it was not for this factor the extension of time may otherwise have been refused.

In a rolled-up hearing for both permission and the substantive claim, having exercised its discretion to extend the time period for bringing the judicial review and granted permission for the claimant to bring the judicial review, the Court proceeded to allow the substantive claim with regard to the validity of the indefinite planning permission. It then quashed the indefinite planning permission.

An inflexible 'cab rank' policy held to be unlawful and discriminatory

R (On the Application Of Adath Yisroel Burial Society and another) v HM Senior Coroner for Inner North London

In an attempt to address her concerns that Jewish families were being prioritised over other families by her officers, the Defendant - HM Senior Coroner for Inner North London - introduced a policy which stated that "no death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner's officers or coroners."

The claimants challenged the policy on the basis that it was in breach of Article 9 (right to freedom of thought, conscience and religion) and Article 14 (enjoyment of rights and freedoms without discrimination) of the European Convention on Human Rights, that it amounted to unlawful discrimination under the Equality Act 2010 and that the Defendant had failed to have regard to the "public sector equality duty" as required under that Act. In addition, the Chief Coroner - joined as an Interested Party - submitted that the policy was over-rigid leading to a fettering of the Defendant"s discretion and not capable of rational justification.

While claiming to maintain a "neutral stance" for the purpose of the proceedings, in her written submissions the Defendant had stated that she did not apply the policy rigidly and that it operated in ways that were different in practice. The Court confirmed that it had to consider the policy as published, which on its face excluded any prioritisation of deaths for religious reasons.

The Court ruled that the policy was unlawful and discriminatory on the grounds argued by the claimants and the interested party - although it found that the Defendant had not failed to have regard to the public sector equality duty. The policy, as formulated, imposed a blanket rule which prevented the Coroner from taking into account a relevant consideration (i.e. religion) and the individual circumstances of a particular case and thereby fettered her discretion in the exercise of her relevant powers. Moreover singling out religious beliefs for exclusion from consideration under the policy was discriminatory as, without objective and reasonable justification, it failed to treat differently people whose situations are significantly different, and it also amounted to a disproportionate interference with the right to manifest religion.

The case provides a classic example of a policy which purports to apply equally having an unequal impact on a minority and therefore being inadvertently discriminatory. Discrimination can consist of treating different cases in the same way, as well as the (more common) obverse of that situation.

The discretion to be afforded in EU proportionality cases

R (Uber London Limited) and others v Transport for London

Transport for London (TfL) imposed a licence condition which required private hire vehicle operators to provide a mechanism for passengers to speak with someone if they wished to make a complaint (a voice contact facility). The requirement was for the facility to be available at all times, and in relation to complaints in both emergency and non-emergency situations.

Uber and others challenged the lawfulness of this requirement on the basis that it constituted a disproportionate interference with the rights to freedom of establishment of operators contrary to Articles 49 and 54 of the Treaty on the Functioning of the European Union. The Court was therefore required to consider whether the requirement for a voice contact facility was proportionate to the customer service and safety aims that TfL put forward to justify it.

At first instance there was evidence before the Court that customers would benefit from being able to speak with a person for both emergency and non-emergency complaints, and that in many cases it would be difficult to distinguish between the two types of situations. Mitting J agreed that, for emergencies, there was no less intrusive measure than a voice contact facility which would still provide the same level of customer safety. However, he held that customers who were happy to book using the app would most likely be happy also to use it to register complaints in non-emergencies. The use of the app rather than a voice contact facility would be a less intrusive measure which would achieve the same benefits and TfL's insistence on a voice contact facility for all complaints was therefore disproportionate and in breach of EU law.

Upholding TfL's appeal, the Court of Appeal criticised the judge's reliance on the use of a voice contact facility for emergencies only as it had not been suggested by either party and there was no evidence that it would actually be practicable, or meaningfully less burdensome or costly than the use of such a facility for all types of complaints.

The Court of Appeal disagreed with the judge's finding that 'no useful purpose' would be served by a voice contact facility for non-emergency cases, especially in light of Uber's own evidence which showed that a substantial number of customers who used the app still preferred voice contact. A voice contact facility provided passenger benefits such as reassurance and speed of response and the judge had failed to explain why these were not legitimate objectives in a non-emergency situation.

Applying R (Lumsdon) v Legal Services Board, the Court of Appeal also ruled that, as the regulation of private hire vehicles is not an area of EU competence, the balancing exercise that the Court should conduct in assessing proportionality should be less intrusive. TfL should thus be accorded a wide margin of discretion as to the appropriate level of consumer protection and how this should be achieved. In substituting his view for TfL's, the judge had failed to respect that discretion and applied too intrusive a level of review.

Is the press regulator subject to judicial review?

Coulter v Independent Press Standards Organisation CIC (IPSO)

The Independent Press Standards Organisation (IPSO) is a not-for-profit community interest company regulating newspaper and magazine publishers that have agreed to be subject to its regulation. It has no statutory remit but performs the role of an independent regulator of the press, essentially a form of 'self-regulation'. In this capacity it has taken on the role of determining complaints made against a publisher which has agreed to its jurisdiction.

Mr Coulter complained to IPSO that reports in certain newspapers about a campaign meeting held at the House of Lords were inaccurate and misleading and therefore in breach of the Editors' Code of Practice.

The complaint was not upheld and Mr Coulter challenged that decision on the basis that IPSO: (a) had mishandled the complaint by declining to assess it on the basis that it was a third party complaint; (b) was in breach of a duty of sufficient inquiry, by failing to take account of a report of the House of Lords Committee for Privileges and Conduct (the Report); and (c) had applied an incorrect and irrational standard of review.

This was the first time that a judicial review of an IPSO decision had been sought. Although IPSO did not contest the claim on the basis that it was not amenable to judicial review, the judge nevertheless sought submissions on the point. This was on the basis that the question of amenability was not a matter which could be determined by agreement of the parties.

In the event, because the Court dismissed the substantive claim on all of the grounds of challenge, it declined to decide the jurisdiction issue. This leaves open the possibility that IPSO can contest any future claim on the basis that it is not amenable to challenge by way of judicial review.

On the substantive issues the Court ruled that IPSO had a degree of discretion to consider complaints of inaccuracy when raised by third parties and it had exercised this discretion appropriately. The Court also noted that IPSO's complaints handling service was not an inquisitorial function. It was for IPSO to decide the questions before it on the evidence available to it. The Report had only been placed before it after its investigation had concluded and when the decision-making process was well advanced. Accordingly IPSO's decisions not to uphold the complaint were rationally made.

Read the original article on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
7 Nov 2019, Seminar, Birmingham, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

14 Nov 2019, Seminar, London, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions