European Union: Public Law Case Update - June 2019

Our latest case update includes five significant cases chosen by the Public Law and Regulation team to highlight important principles or procedural points. These include the importance of disclosure to the principle of open justice, the ability of the Scottish Parliament to make provisions for Scots law after Brexit and whether a legitimate expectation can be created by a promise given in confidence.

The update also features cases which consider the fairness of a complaints procedure in which different categories of complainants are subject to differing procedures and whether discrimination in favour of one religion can be justified.

  1. 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
  2. The principle of open justice does not require compelling reasons for disclosure - R (on the application of British American Tobacco (UK) Ltd and other companies) v Secretary of State for Health and other applications (Action on Smoking and Health intervening)
  3. Comments made in strict confidence did not give rise to a legitimate expectation - R (Jefferies) v Secretary of State for the Home Department
  4. It was not procedurally unfair for Ofsted's complaints procedure to distinguish between special measures cases and other cases - Ofsted v R (on the application of Durand Academy Trust)
  5. Discrimination in favour of one religion can be justified where that religious community is disadvantaged - Z & Ors, R (On the Application Of) v Hackney London Borough Council & Anor

The limits of devolution - can the Scottish Parliament make its own provision for Scots law after Brexit?

Reference by the Attorney General and the Advocate General for Scotland is a case which tested the limits of the powers of the Scottish Parliament to legislate for the effects of Brexit.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill ("the Bill") was a bill in the Scottish Parliament intended to secure legislative continuity in Scots law following Brexit. It was passed following the failure of Scottish MPs at Westminster to secure certain changes to the European Union (Withdrawal) Act 2018 ("EUWA"). The Supreme Court was asked to consider whether the Bill fell within the legislative competence of the Scottish Parliament.

Section 29 of the Scotland Act 1998 ("the Scotland Act") states that "an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament". This will be the case where the Act:

  • relates to reserved matters listed in Schedule 5, which include foreign affairs (including relations with the EU),
  • modifies a provision listed in Schedule 4, or
  • is incompatible with EU law.

Under Section 28 of the Scotland Act the UK Parliament retains the power to legislate for Scotland, even in respect of devolved matters.

The concerns about the Bill were twofold. Firstly, that it fell within the matters listed in section 29 of the Scotland Act as being outside the Parliament's legislative competence. The Court held that since the Bill related to what would be domestic law after Brexit, rather than law flowing from the UK's obligations as part of the EU, it could not be said to be 'related' to foreign affairs. Likewise, it could not breach the requirement for compatibility with EU law, since EU law would have ceased to have effect.

However, clause 17 of the Bill sought to impose a requirement that Scottish Ministers must consent to subordinate legislation made by UK Ministers in devolved areas formally subject to EU law. The Court held that, as powers to make subordinate legislation are granted by the UK Parliament, imposing a restriction on the exercise of those powers interfered with the power of the UK Parliament to legislate under section 28 of the Scotland Act, which was protected from modification under Schedule 4.

The second concern was that the Bill sought to create a Scottish version of the regime instituted by the EUWA, whereas the UK Parliament plainly intended the body of retained EU law created by the EUWA to be UK-wide.

The Court noted that where the UK Parliament intended to reserve a particular area of law-making solely to itself, it listed it as a reserved matter in Schedule 5 to the Scotland Act. However, the EUWA was instead added to the list of provisions protected against modification in Schedule 4. Therefore, although the Scottish Parliament was not precluded from legislating in relation to the statute book after Brexit, certain provisions of the Scottish Bill did act to modify the EUWA and as such, these were outside of the Scottish Parliament's competence.

As a result, the Court held that these provisions, along with clause 17 of the Bill, were outside the competency of the Scottish Parliament. The rest of the Bill was, however, within competence.

Obtaining the disclosure of court documents - the importance of open justice

R (on the application of British American Tobacco (UK) Ltd) v Secretary of State for Health concerned an application by the Campaign for Tobacco Free Kids ("CTFK"), a non-profit organisation set up to campaign against tobacco use, for an order for disclosure of case documents.

The application related to expert reports and witness statements submitted in an unsuccessful judicial review challenge to legislation regulating tobacco products by preventing manufacturers including advertising or branding on their packaging.

CTFK argued that tobacco companies in other jurisdictions were still advancing some of the arguments dismissed by the Court in that case, and that the documents requested would aid a better understanding of the Court's decision and help to facilitate public debate.

Under the Civil Procedure Rules ("the CPR"), the general rule is that a person who was not a party to proceedings has a right to obtain from the court any statement of case (but not documents attached to or filed with it) and any public judgement or order of the court. The CPR also provides a discretion for the court to order provision of any other document from the court's records.

There has been some debate over the years as to which documents form part of the court's records. However, prior case law has established that the inherent jurisdiction of the court allows it to order the provision of documents that may not fall within the CPR.

As confirmed by the Court of Appeal in Cape Intermediate Holdings Ltd v Dring, the documents covered by the Court's inherent jurisdiction include witness statements, expert reports and documents which:

  • were read out in open court;
  • the judge was invited to read in open court;
  • the judge was specifically invited to read outside court; and
  • it was clear or stated that the judge had read.

In granting the application of CTFK under the Court's inherent jurisdiction, Green LJ noted that all of the documents requested were referred to in pleadings and taken into consideration by the Court in preparing its judgment. As such, they were helpful in understanding the judgment itself. Furthermore, the issues raised in the documents were considered to be of continuing public importance and there were a lack of grounds put forward as to why they should remain secret.

The judge laid particular emphasis on the principle of open justice, which underlies much of the case law in this area, and commented that although CTFK had advanced compelling reasons for disclosure of the documents such reasons are in fact unnecessary. Openness is an important constitutional virtue in its own right and the courts are unlikely to need to assess the merits of any particular reason for disclosure.

Can a legitimate expectation be created by a promise that is given in strict confidence?

The Leveson Inquiry into the behaviour of the British press was originally intended to take place in two parts. The first of these finished in 2012. There was then to be a gap during which criminal prosecutions could be brought. After this, the Inquiry would reconvene for a second session. However, in March 2018 the government announced that part two of the inquiry would not now occur. R (Jefferies) v Secretary of State for the Home Department was a judicial review of this decision.

The claimants were all people who had been affected in some way by the misconduct of the press. At the heart of their case was the claim that in 2012 - just before the report into the first part of the inquiry was published - the then Prime Minister, David Cameron, promised the claimants in a private meeting that part two of the inquiry would definitely happen. This, they claimed, created a legitimate expectation that the government was now required to honour.

When the case came to court, a recording of the meeting with Cameron emerged. This showed that his assurances as given in the private meeting were guarded and ambiguous. They fell a long way short of the standard of an unequivocal and unqualified promise that is the basic requirement for any legitimate expectation. That, by itself, would have been sufficient to defeat the claim.

However, the real interest of the case arises from a second point relied on by the Secretary of State. The private meeting had taken place under conditions of strict confidence. At the beginning of the meeting, wanting to assure the Prime Minister that he could speak freely, one of the claimants' representatives said that 'what is said in this room stays in this room'. This, it was argued, meant that promises given in the meeting could never be relied upon in court.

Giving the judgment of the Divisional Court, Davis LJ agreed with this argument and took a dim view of the claimants' reliance on statements made in a meeting that they themselves had promised would be strictly confidential - 'Any expectation engendered by what Mr Cameron said in this meeting, conducted on the basis that it was, cannot, in my judgment, be recognised or protected as a legitimate expectation'.

This raises interesting questions for future claims. Legitimate expectations often arise because of things said in meetings, or correspondence, which occur under conditions of formal confidentiality. Is Jefferies to be confined to its specific facts - and in particular the strength of the promise made to David Cameron personally about his comments 'staying in the room' - or can confidentiality be pleaded more widely as a basis for defeating a legitimate expectation that would otherwise arise?

We suggest the former. A fuller consideration of these issues can be found in the article Developments in Legitimate Expectation.

Is it unfair for the same complaints procedure not to be available to all complainants?

This was the question that was the focus of the appeal in Ofsted v R (on the application of Durand Academy Trust).

Having undertaken a statutory inspection of the Trust's school, Ofsted adjudged it to require special measures and accordingly sent the Trust a draft report setting out its findings and inviting comments. The Trust disputed many of the conclusions in the draft report. It submitted a detailed response and, separately, a complaint under Ofsted's complaints procedure.

The complaint was not considered by Ofsted under its complaints procedure because, in accordance with the terms of that procedure, the only complaints that would be considered from schools adjudged to require special measures were those relating to 'inspector conduct' or the 'inspection process'. This limitation on the scope of the complaint did not apply to other cases.

The Trust argued that the difference in treatment between it and other schools not adjudged to require special measures amounted to procedural unfairness, as it was deprived of procedural rights that were available to others whose interests were actually less severely affected. This meant that it was excluded from making a substantive challenge to the inspection under the complaints procedure.

Ofsted disputed the proposition that its complaints procedure was unfair on the basis that before an inspection report is finalised in relation to schools which require special measures an extensive quality assurance and moderation process is carried out. This encompasses an evidence based review and takes due consideration of the submissions made by the affected school on the draft report. Such a process was followed in this case and the Trust's complaint was considered as part of that moderation process.

The judge in the lower Court agreed with the Trust and ruled that the complaints procedure was unfair because it deprived the Trust the right to challenge the substantive judgement set out in the report.

The Court of Appeal has now overturned that decision. It reasoned that the lower Court's focus was too narrow in looking only at the complaints procedure. In considering the question of procedural unfairness, it was necessary to consider the entirety of the inspection, evaluation and reporting process, which included but was not limited to the complaints procedure.

The Court of Appeal determined that Ofsted's overall process was not procedurally unfair given that there are various stages (both during and following an inspection) at which schools are able to raise concerns, and given that additional protections are in place (both before and after the draft report is prepared) for those schools that are considered to require special measures.

It therefore concluded that the differences in the complaints procedure between special measures cases and other cases did not undermine the fairness of the overall process that was in place.

'Positive' discrimination is not unlawful

In R (On the Application Of Z) v Hackney London Borough Council the claimants challenged the arrangements entered into by the Council with Agudas Israel Housing Association ("AIHA"), a registered housing provider, on the basis that they were unlawful under the Equality Act 2010.

The Council operates a points-based and choice-based housing allocation system. Under this system, persons on its housing register with the requisite number of points are normally invited to bid for suitable available properties. These can be either Council-owned or properties of registered housing providers (that is housing providers with whom the Council has entered into contractual arrangements under which it has nomination rights).

The claimant - a non-Jewish mother with four children, two of whom are disabled - had the highest possible priority for being rehoused and had been granted a court order that she should be given the next suitable three-bedroom property. AIHA, a registered housing provider, had six properties that may otherwise have been suitable for the claimant. However, she could not bid for them because AIHA's allocation policy excluded persons who are not members of the Orthodox Jewish community from becoming tenants of its properties.

The claimant contended that AIHA's policy, and in turn the Council's arrangements with AIHA, were unlawful and discriminatory under the Equality Act 2010.

It was accepted by the defendants that AIHA was providing a service that discriminated on the grounds of religion. However, they argued that the Orthodox Jewish community was disproportionately in need of social housing compared to other religious groups, and that the Equality Act does not prohibit the provision of services aimed specifically at a disadvantaged group where this is connected to the protected characteristic of the disadvantaged group.

The Court agreed that members of the Orthodox Jewish community were at a disadvantage in securing housing due to their way of life limiting employment and education opportunities, the prejudices they faced from private landlords, and because they have a strong need for community which differs from the needs of persons who do not share their protected characteristic. It also stated that it was unsurprising, given that AIHA's aim was primarily to house members of the Orthodox Jewish community, and that there was a limited supply of housing and high numbers of Orthodox Jewish families waiting for such housing, that AIHA was unable to provide housing to those who were not members of that community.

Having reached these conclusions, the Court held that AIHA's policy was proportionate in addressing the needs and disadvantages of the Orthodox Jewish community and therefore found the policy to be lawful under the Equality Act 2010.

In turn, since the policy was lawful, the Council's arrangements with AIHA were also lawful and it had no right to request or coerce AIHA to terminate its allocation arrangements.

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