Public Law Case Update – December 2019

The December 2019 edition of our case updater offers a straightforward and concise overview of six recent cases within public law and regulation which highlight important points of relevant public law principles and procedure.

Gowling WLG's team of public law and regulation specialists examine the following cases and identify the key points which can be taken from them.

The distinction between pre-determination and pre-disposition when consulting on policy proposals - Electronic Collar Manufacturers Association v Secretary Of State for Environment, Food and Rural Affairs The rationality in relying on judgments of scientific experts when decision-making - R (Thomas Langton) v (1) Secretary of State for the Environment, Food & Rural Affairs (2) Natural England The deference shown to expert regulators when their decisions are challenged by way of judicial review - R (Lasham Gliding Society Limited) v Civil Aviation Authority The evidence required to substantiate advertising claims for medical devices not limited to 'CE' marking but extends to the requirements of the Unfair Commercial Practices Directive 2005 - R (Actegy Ltd) v Advertising Standards Authority Bulk data acquisition powers within the Investigatory Powers Act 2016 compatible with Articles 8 and 10 of the European Convention on Human Rights - R (Liberty) v Secretary of State for the Home Department (National Union of Journalists intervening) The extra-territorial effect of the Public Sector Equality Duty under the Equality Act 2010 reminds public bodies to be mindful when developing policy that will have an effect outside of Great Britain - R (Hoareau & Bancoult) v Secretary of State for Foreign and Commonwealth Affairs Distinguishing between pre-determination and pre-disposition in the context of consulting on policy proposals

In Electronic Collar Manufacturers Association v Secretary Of State for Environment, Food and Rural Affairs, an organisation representing manufacturers of electronic collar devices for cats and dogs sought a judicial review of the Secretary of State's decision to ban the use of hand-held remote-controlled electronic training collars ('e-collars') in England.

On procedural grounds, the claimants' main contentions were that the consultation did not satisfy any of the Sedley criteria (see our previous update here as to the criteria) and that the decision was pre-determined. In support, they referred to the lack of alternative options, the pithiness of the document, the 6½ week period of consultation, and some of the language used in the consultation document and other prior communications. On pre-determination, they argued that even if the evidence did not establish actual pre-determination, it would nevertheless lead a fair minded and informed observer to think that was the case.

On substantive grounds, the claimants argued that the decision to ban e-collars was: (i) irrational because it was not a reasonable (in the Wednesbury sense) response to animal welfare concerns relating to the use of e-collars; and (ii) in breach of Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights on the basis that it disproportionately interfered with the claimants' (or their members') ability to sell e-collars in England and therefore with their marketable goodwill.

The claim was dismissed on all of the grounds of challenge.

The judge accepted that aspects of the consultation exercise could have been improved, but held that when considering the process as a whole it was not materially flawed in the sense that something had gone clearly and radically wrong. He also held that there was a legitimate distinction between pre-determination and pre-disposition (towards a proposal) and held that the latter had applied in this case. The consultation language used could have been more careful, but when considering it in context, it did not demonstrate that the Secretary of State had pre-determined the matter or that a reasonable and well informed observer would have considered that there was a real possibility of pre-determination.

On the substantive grounds of challenge, the court considered the basis of the evidence and the reasoning given by the Secretary of State for the ban and held that it was not outside the range of reasonable responses that were open to the decision-maker. This was the case notwithstanding that there had been a change of position by the Secretary of State whereby he had relied, in part, on evidence that had previously been considered not to be sufficiently strong. The change of position was not sufficient to render the decision Wednesbury...