Three months into the war in Gaza, the conflict has reached a courtroom: the International Court of Justice in the Hague. South Africa says we are witnessing a genocide take place in real time. Israel has called the claims ‘preposterous’. A leading expert in international law Holger Hestermeyer walks us through the case and its possible consequences.
To listen full podcast please click here.
Public Law analysis: The claimants challenged a decision by the Secretary of State for Levelling Up, Housing and Communities to make the Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023 (the ‘2023 Regulations’). The defendants served three tranches of disclosure, containing redacted documents. In an interim judgment, Mr Justice Swift held that in judicial review proceedings, absent good reason to the contrary, redaction on grounds of relevance alone ought to be confined to clear situations where the information redacted does not concern the decision under challenge (at para [22]). He held that it was not permissible for the Secretaries of State, as a matter of routine, to redact the names of civil servants outside the Senior Civil Service from documents disclosed in proceedings. Written by Jonathan Lewis, barrister at Monckton Chambers.
To read full article please click here Duty of Candour—What’s In A Name? (R (IAB) v SSHD) (subscription required).
This article was first published by LexisNexis on 19 December 2023.
This thoroughly revised second edition of the Research Handbook on International Insurance Law and Regulation provides an updated assessment of the insurance industry in an international context, featuring 30 chapters, of which half are new for this edition, written by expert academics and practising lawyers.
Brendan McGurk has contributed chapter 21 entitled “Data: the growth of risk-related data in insurance and protecting privacy” which is a comparative analysis of privacy law in the EU, UK, US and Australia which considers the relative protection those laws provide to consumer insureds relative to how insurers might use big data and machine learning algorithms to obtain risk and non-risk related data used in underwriting decisions.
The book can be purchased here: Research Handbook on International Insurance Law and Regulation 2nd ed.
Anthony Inglese interviewed George Peretz KC for this months edition of Counsel Magazine, discussing the law across parliament and the media alongside his broad and organically grown practice.
You can view the article from page 6 Lawyers have much to contribute.
Clause 19 of the Digital Markets, Competition and Consumers Bill (“the DMCC Bill”) gives the Competition and Markets Authority (“CMA”) wide powers to impose conduct requirements on undertakings that the CMA has designated as having strategic market status (“SMS”) in respect of a digital activity (essentially, “big tech”). The condition for the exercise of the power is that the CMA considers it “appropriate” to do so having regard to broadly drawn statutory objectives – the “fair dealing” objective, the “open choices” objective (essentially, enabling consumers to choose freely and easily between providers) and the “trust and transparency” objective (essentially, having the information to make properly informed decisions). The types of conduct requirement that may be imposed are set out in clause 20: essentially, there is no statutory limit to the types of requirement that may be imposed save that (whatever they are) they must be for the purpose of securing various objectives or of preventing various widely defined types of conduct (for example “using data unfairly”). Breach of a conduct requirement may result, if the CMA so decides, in an enforcement order that requires action to remedy the breach or payment of damages.
To read full article, written by George Peretz KC, please click here: UK Constitutional Law Association – Clause 19 of the Digital Markets, Competition and Consumers Bill: Power without accountability.
What is life like as a public law barrister and how best to prepare for pupillage applications? Anneli Howard KC, Imogen Proud and Khatija Hafesji explain all.
You can read full article on page 42 here: Lexis Nexis: Bar Student Guide – So, you want to work at the Public Law Bar?.
The Viasat case
The Earth’s orbit is increasingly crowded with satellites. This gives rise to questions concerning how to navigate the inevitable territorial disputes between satellite operators. For example, if one operator believes that another operator’s satellites are encroaching on its own satellites’ space, does it have a legal remedy?
This issue recently came before the U.S. Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) in Viasat, Inc. v. Federal Communications Commission, 47 F.4th 769 (D.C. Cir. 2022). The background to that case can be summarised as follows.
Space Exploration Holdings, LLC (which goes by “SpaceX”) maintains a constellation of thousands of communication satellites in low Earth orbit (“LEO”). Typically, communication satellites circle Earth in a geostationary orbit (“GSO”), moving at the same speed as the Earth’s rotation, so they appear fixed in the sky. A single GSO satellite has a continuous sight line to users within its coverage area – and thus can provide them with continuous service. SpaceX’s satellites, by contrast, move at lower altitudes in a non-GSO in LEO. The lower altitude reduces transmission latency, making SpaceX’s satellites better suited to provide high-speed services. However, these satellites do not synchronise with the Earth’s spin, so a single satellite cannot maintain a sight line with any given user. SpaceX solved this problem by deploying multiple satellites that move and communicate as a constellation. When one moves out of view of a user’s antenna, it transfers the signal to the next satellite in line.
SpaceX sought approval from the Federal Communications Commission (“FCC”) to deploy its satellites at an even lower altitude to improve service quality. The FCC approved its request. This triggered two of SpaceX’s competitors (DISH Network Corporation and Viasat, Inc.) and an environmental research and advocacy organisation (the Balance Group) to appeal the FCC’s decision – first, to the FCC itself, and second, when that failed, to the D.C. Circuit.
DISH argued, before the D.C. Circuit, that the proposed changes would interfere with its GSO satellite television service. It alleged primarily that the FCC’s decision had violated the Administrative Procedure Act (“APA”) and the Communications Act. The D.C. Circuit dismissed DISH’s arguments on the merits.
Viasat and the Balance Group argued that the FCC had violated the National Environmental Policy Act (“NEPA”) by “allowing SpaceX to [deploy its satellites at lower altitude] without first preparing an environmental assessment”. The D.C. Circuit noted that, in order to bring a case in U.S. federal court, a party must establish standing by showing that it has suffered an injury that is “actual, imminent or certainly impending” (i.e. a “speculative possibility of future injury” does not suffice). Further, it noted that to pursue NEPA claims under the APA, a party must show that its injury is “to the interests of the sort protected by NEPA”. It ultimately dismissed both Viasat and the Balance Group’s arguments before reaching the merits of their claims on the ground that neither party met both requirements.
Thought experiment: what would happen in the U.K.?
Viasat is, of course a U.S. case. However, the issues to which it gives rise apply more broadly. It is not difficult to envisage a comparable set of facts arising in the U.K. in the context of the new domestic space regime (for which see here). To propose a thought experiment: say Company A (akin to SpaceX in Viasat) operates satellites from the U.K. at a certain altitude above Earth and wishes to move them to a lower altitude. However, Company B is concerned that this will negatively affect its own satellites operated from the U.K. and wishes to prevent Company A from doing so. Does Company B have a legal remedy?
The U.K.’s space regime is in its infancy, and challenges of this sort are yet to come before the courts. However, to entertain the thought experiment for a moment longer, we might consider possible legal avenues available to Company B.
The statutory licensing framework
First, we might turn to the statutory licensing framework.
In July 2021, the Civil Aviation Authority (the “CAA”) became the U.K.’s space regulator. The CAA licences space companies and their activities under both the Outer Space Act 1986 (“OSA”) and the Space Industry Act 2018 (“SIA”). The OSA governs space activities carried out by U.K. entities overseas. The SIA (and the Regulations and Rules made thereunder) governs space activities carried out in the U.K. It is, therefore, the latter with which our thought experiment is concerned.
The SIA imposes various duties on the CAA. These include the following.
Sections 8 to 15 of the SIA empower the CAA to grant operator licences authorising the licensees to carry out any spaceflight activities specified, subject to such conditions the CAA considers appropriate. When a condition is imposed, it is an offence for a licensee to fail to comply with that condition. Under section 15(3) of the SIA, the CAA is empowered to vary a licence, inter alia, with the licensee’s consent.
Turning back to our thought experiment: Company A would have a licence from the CAA, which would likely impose obligations concerning the altitude(s) at which it was permitted to fly its satellites. If Company A wished to vary its licence, it could ask the CAA to do so (which the CAA could then do, following a mandatory consultation with the Secretary of State). In making that decision, the CAA would be required to take into account the factor set out in section 2(2)(c) of the SIA – namely, “the interests of any other persons in relation to the use of land, sea and airspace” which would include the interests of Company B. However, if the CAA was still minded to grant Company A’s request, what could Company B do about it?
Very little, it would appear. Under section 3 of Schedule 10 to the SIA, an appeal against a decision of the CAA or Secretary of State to vary, or refuse to vary, a licence may be brought “only by the holder of the licence” – meaning only by Company A. There is no remedy in the statute for Company B. Interestingly, this differs from the position under the Civil Aviation Act 2012 (“CAA12”), which regulates operators of dominant airports (such as Heathrow). Section 25(2) of the CAA12 allows an appeal against a decision of the CAA to modify a licence condition to be brought by either “the holder of the licence” or “a provider of air transport services whose interests are materially affected by the decision”.
It is unclear why the right to appeal under the SIA was not drafted in similar terms. At a high level, Parliament appears to have considered judicial review to be a sufficient remedy for third party non-licence-holders affected by licence variations by the CAA under the SIA.
Judicial review
Secondly, we might consider judicial review. In order to bring an application for judicial review against the CAA’s decision to allow Company A to lower its satellites, Company B would need to demonstrate “sufficient interest” in the matter to which the judicial review related: see section 31(3), Senior Courts Act 1981. The courts have avoided defining exactly what amounts to a sufficient interest. However, they have tended to interpret the concept flexibly having regard to the nature of the case. That said, flexibly does not always mean broadly. Ultimately, whether Company B had standing would depend on the particular facts of the case.
It is possible to imagine a situation where the CAA’s decision to allow Company A to fly its satellites at a lower altitude would directly impact Company B in a demonstrable manner. Notably, this wasn’t the case in Viasat, where Viasat had argued that it faced imminent injury on the ground that lowering SpaceX’s satellites could potentially cause an indirect collision with its own satellites. According to Viasat, first, one of SpaceX’s satellites could collide with a piece of space debris, thereby creating more space debris and, in the process, increasing the chance of a collision with one of Viasat’s satellites. (This theory appears to have been based on the Kessler Syndrome – recently defined in the European Space Agency’s 2022 Space Environment report as “the situation in which the density of objects in orbit is high enough that collisions between objects and debris create a cascade effect, each crash generating debris that then increases the likelihood of further collisions”). The D.C. Circuit found Viasat’s theory of injury “much too speculative”. It is possible that a U.K. court would find the same.
In any event, it is essential to bear in mind that standing is only the first hurdle. Even if standing were established, Company B would need to establish that the CAA acted unlawfully in deciding to vary Company A’s licence on traditional public law grounds. It is impossible to elaborate further on the likely success of any such arguments in the abstract.
Final thoughts: managing future space relationships
To sum up the outcome of our thought experiment, it is unclear whether Company B would have a legal remedy against the CAA and/or Company A in the U.K. The statutory right to appeal in the SIA would not assist Company B. However, Company B might be able to bring a successful claim in judicial review against the CAA if it could establish standing. The answer would ultimately depend on the specific facts of the case.
This thought experiment has proceeded on the assumption that both Companies A and B were operating satellites from the U.K. But what if we were to turn the lens outwards? What if Company A was based in the E.U.? Or what if Company A acted as agent of the European Space Agency – an inter-governmental organisation of which the U.K. is a member state? It is an artefact of the history of space exploration that these matters that will have a greater and greater international component are still matters for national regulation. And the underlying substantive issues are likely to arise again in real disputes. Given the rate at which Earth’s orbit continues to grow more crowded and commercialised, it is likely that real legal solutions to this sort of issue will have to be found.
“This is the second in a series of articles which considers recent cases in relation to injunctions and other pre-emptive relief in the English Courts, and which highlight key practical considerations.
A majority of the Court of Appeal rejected an appeal against a finding of contempt after a party had intervened in Italian proceedings in order to further its position in existing English Court and London arbitration proceedings in breach of an English anti-suit injunction granted to uphold the parties’ arbitration agreements.
This decision is important because (1) it shows that it is essential for parties to act in a straightforward and prudent manner when faced with an injunction, and to deal with any issues arising from it, including uncertainty as to its meaning, through timely application to the Courts in advance of taking any steps in response to it; (2) it shows that the English Courts take a robust approach to upholding the parties’ agreements on jurisdiction, and ensuring that the purpose of such orders is not defeated, and (3) provides guidance on the Courts’ approach to the interpretation of orders, including injunctions.”
This edition is co-authored with Steven Gee KC.
To read full article please click here.
Public Law analysis: The claimants judicially reviewed the alleged failure of the Secretary of State for Work and Pensions (SSWP) to consult lawfully, by way of its UK Disability Survey (the ‘Survey’), before publishing a National Disability Strategy (the ‘Strategy’). The Court of Appeal unanimously reversed the decision of Mr Justice Griffiths in R (Binder and others) v SSWP , in finding that the Survey was not, at a common law, a ‘consultation’. This was because the SSWP was not seeking views on a specific proposal likely to have a direct impact on a person or on a defined group of people. The Court of Appeal therefore held that Griffiths J was wrong to decide that the Survey was subject to the Gunning requirements, wrong to hold that the SSWP had acted unlawfully and wrong to quash the Strategy. Written by Jonathan Lewis, barrister at Monckton Chambers.
Please click to read the full article Specific proposals impacting rights needed to trigger consultation obligations.
This article was first published by LexisNexis on 13 July 2023.
Public Law analysis: The claimant had sought permission to appeal against a First-tier Tribunal (FTT) decision refusing her claim for leave to remain in the UK. She maintained that the FTT had wrongly recorded her oral evidence. Both the FTT and Upper Tribunal (UT) refused her permission to appeal after having checked the recording of her evidence. She was granted permission to claim judicial review of the UT’s refusal on the basis that the claim raised important points of practice. However, the parties and the court had overlooked section 11A of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007). TCEA 2007, s 11A had been inserted by section 2 of the Judicial Review and Courts Act 2022. It came into force on 14 July 2022. TCEA 2007, s 11A ousts the supervisory jurisdiction of the High Court in judicial review proceedings, subject to a number of specific exceptions. It provides that a decision of the UT to refuse permission to appeal further is, subject to exceptions, final and not liable to be questioned or set aside in any other court. It thereby reversed the Supreme Court’s decision in Cart v Upper Tribunal. Rather than proceed to a full substantive hearing, a preliminary issue trial was conducted to determine whether the court had jurisdiction to determine the claim. Mr Justice Saini rejected the claimant’s attempts to argue that the TCEA 2007, s 11A ouster was somehow ineffective. He also carefully construed the ‘jurisdictional gateways’ in TCEA 2007, s 11A(4), being four circumstances in which such a claim for judicial review could proceed, finding that the claimant had not established the ‘a fundamental breach of the principles of natural justice’ gateway. Written by Jonathan Lewis, counsel at Monckton Chambers.
The full article, written by Jonathan Lewis, was first published by Lexis®PSL on 20 April 2023, please click to read A failed attempt to resurrect Cart judicial reviews.
