Public Law Case Update – Top Ten Cases Of 2019

As well as some headline grabbing Brexit litigation, 2019 featured many important cases for public authorities and those that deal with them. Our experts have chosen their top ten cases of 2019 that highlight an important principle or point of law for inclusion in our first update of the year.

The cases that made it onto their list include:

KPMG was not amenable to judicial review when acting as an independent reviewer of a bank's redress scheme - R (Holmcroft Properties Ltd) v KPMG LLP The Supreme Court considers whether judicial review of decisions of the Investigatory Powers Tribunal was successfully excluded - or ousted - by statute and whether such ouster was permissible in any case - R (on the application of Privacy International) v Investigatory Powers Tribunal and others The Supreme Court determines that the Scottish Parliament cannot make provisions for Scots law after Brexit where this would modify the scope of its powers - A Reference by the Attorney General and the Advocate General for Scotland Comments made in strict confidence did not give rise to a legitimate expectation - R (Jefferies) v Secretary of State for the Home Department The standards of consultation required, legitimate expectation and intensity of review in the context of the Heathrow judicial review challenges - R (Spurrier) v Secretary of State for Transport and R (Heathrow Hub) v Secretary of State for Transport The legality of a voter ID Pilot Scheme made by order under section 10 of the Representation of the People Act 2000 - R (on the application of Coughlan) v The Minister for the Cabinet Office and others The need for clear and express words if a statutory power conferred on a member of the Executive is able to be exercised to override a duty set out in other primary legislation - R (on the application of VIP communications) v Secretary of State for the Home Department The Supreme Court's landmark judgment in the demarcation of the relationship between Parliament, the executive and the courts - R (Miller) v the Prime Minister and Cherry and Ors v Advocate General for Scotland 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 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) When can a private body be amenable to judicial review?

The Court of Appeal upheld the decision of the Divisional Court, in R (Holmcroft Properties Ltd) v KPMG LLP, and agreed that KPMG was not amenable to judicial review when acting as an independent reviewer of a bank's redress scheme. However, while both courts ultimately reached the same conclusion, their reasons for doing so were quite different.

Barclays Bank voluntarily agreed with its regulator, the Financial Services Authority (now the Financial Conduct Authority - (the "FCA")), to establish a redress scheme for customers and appoint an 'Independent Reviewer', approved by the FCA. The Independent Reviewer was to decide whether the redress arrangements were appropriate, fair, and reasonable.

The appellant applied for and was offered compensation under the scheme. KPMG (a private entity) approved the offer as Independent Reviewer and it was this decision that the appellant challenged by way of judicial review.

The first question for the courts was whether KPMG was amenable to judicial review in its capacity of Independent Reviewer.

The Divisional Court had concluded that the role of the Independent Reviewer did not have sufficient "public law flavour" to make KPMG amenable to judicial review. Its reasons for this were that (i) the scheme was voluntary, (ii) the arrangement between Barclays and KPMG was contractual, (iii) it was not enough to say that KPMG was amenable because the role of the Independent Reviewer promoted the regulator's objectives, (iv) the regulator did not have any statutory obligation, or the resources, to carry out the role itself, and (v) complaints about the arrangement could be made to the FCA and its decision on any such complaint potentially subject to judicial review.

The Court of Appeal came to the same conclusion but it considered that the lower court had focussed much too narrowly on the source of KPMG's power.

In terms of the regulatory position, the Court of Appeal held that it was necessary to examine the function that was being fulfilled by KPMG in the overall scheme of things. The court did not focus solely on the redress scheme but also on the background and reasons for the scheme and the FCA's role within that background.

The Court considered it too narrow a view of the FCA's statutory functions, and what it was trying to achieve, to say that KPMG's role was outside of the scheme of statutory regulation.

Looking at the factual context it noted that there were similarities between this redress scheme and other industry-wide redress schemes, but also some differences in that the FCA had imposed an obligation on Barclays to grant redress and had required it to appoint an Independent Reviewer. It did not consider that the FCA's involvement in these matters changed the fundamental nature of the scheme which was essentially for the pursuit of private law rights.

The decisions confirm where a private body is tasked with undertaking functions which are, as the lower court put it, "woven into the fabric" of a regulatory authority's regulatory functions, it is necessary to consider the nature of the power and function that has been exercised in order to assess whether the decision has sufficient "public law flavour".

Can the High Court surveil the Investigatory Powers Tribunal?

In R (on the application of Privacy International) v Investigatory Powers Tribunal and others, the Supreme Court considered whether judicial review of decisions of the Investigatory Powers Tribunal ("IPT") was successfully excluded - or ousted - by statute and whether such ouster was permissible in any case.

The IPT was established under the Regulation of Investigatory Powers Act 2000 ("RIPA") with the power to examine the conduct of the Security Service, Secret Intelligence Service and GCHQ. Privacy International sought judicial review of a decision of the IPT on the scope of the Secretary of State's power to authorise certain surveillance activities.

Section 67(8) of RIPA provides that:

"Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or liable to be questioned in any court."

Despite the seeming clarity of that provision, the Supreme Court ruled by a majority of 4-3 that it did not prevent the High Court from reviewing decisions of the IPT. The Court then went on to consider the means, if any, by which Parliament could in fact do so.

In Anisminic Ltd v Foreign Compensation Commission the House of Lords considered a similar clause (absent the parentheses) which purported to prevent a decision by the Foreign Compensation Commission from being called into question in any court of law. By a majority of 3-2 it was held that the clause only prevented challenges to decisions which fell within the jurisdiction of the Commission...