United Kingdom enterprise law

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United Kingdom enterprise law concerns the ownership, regulation and potentially competition in the provision of public services, private or mutual companies in the United Kingdom.

History[edit]

  • AW Bradley and KD Ewing, Constitutional and Administrative Law (15th edn 2010) ch 14 (289-305)
  • E Frankel, ‘The Status of “Socialization” in Germany’ (1924) 32(1) Journal of Political Economy 68
  • FD Roosevelt, Campaign Address on Progressive Government (1932)
  • WA Robson, ‘The Public Corporation in Britain Today’ (1950) 63(8) Harvard Law Review 1321
  • T Prosser, ‘Public Service Law: Privatization’s Unexpected Offspring’ (2000) 63(4) Law & Cont Probs 63
  • JR Commons, ‘The Webbs’ Constitution for the Socialist Commonwealth’ (1921) 11(1) Am Econ Rev 82
  • S Merlin, ‘Trends in German Economic Control since 1933’ (1943) 57(2) Quarterly Journal of Econ 169
  • H Hovenkamp, Enterprise and American Law, 1836-1937 (1991)
  • B Black, R Kraakman and A Tarassova, ‘Russian Privatization and Corporate Governance: What Went Wrong?’ (2000) 52(6) Stanford Law Review 1731
  • M Florio, The great divestiture: evaluating the welfare impact of the British privatizations, 1979-1997 (2004) ch 1

General enterprise law[edit]

While the 20th century had seen swings from nationalisation and re-privatisation, a general law of enterprise developed where private ownership and markets were generally thought to work by themselves. On top of ordinary principles of commercial law, based on contract, property, tort, and trusts, five main fields of law settled the rights and duties of enterprise stakeholders. First, UK company law determines the constitution, governance and finance of major corporations. Much of the Companies Act 2006 concerns the duties of company directors, and the rights of members, who are usually registered as holding share capital. Equity investment mostly derives from people saving for retirement in mutual funds, life insurance and pensions. Second, UK labour law structures the rights of employees and their representative unions against the management of an enterprise. Employees are entitled to a minimum floor of rights, and to rights of voice through collective bargaining or occasionally votes at work in their enterprise. Third, competition law, which is closely coordinated with EU law aims to protect consumers' and the public interest in choice in markets, particularly where enterprise is privately owned. Fourth, UK insolvency law determines the relative rights of creditors when an enterprise can no longer pay its debts when they fall due. Fifth, within the framework of UK constitutional law, the government's fiscal policy sets powerful incentives for the arrangement of enterprise. In particular, tax policy alters enterprise incentives for arranging corporate groups, the level and distribution of incomes, dividend returns to shareholders, consumer prices, and trading conditions. All enterprises are subject to general duties under UK environmental law and criminal law.

Corporate governance[edit]

  • Companies Act 2006 ss 21, 112, 168 and 284, company constitutions, amendment, voting rights and removal of directors
  • Model Articles, Sch 3, paras 3 and 34, model articles for public companies
  • Companies Act 2006 ss 170-177, 260-263 and 419 (directors’ duties, derivative claims, report)
  • Pensions Act 2004 ss 241-243, right of pension beneficiaries to nominate pension trustees
  • Charities Act 2006

Labour rights[edit]

Competition and consumers[edit]

Insolvency[edit]

Fiscal policy[edit]

UK central government expenditure, 2016-17. Social protection includes pensions and welfare.[1]
From 2008, UK tax receipts from income and National Insurance, VAT, corporation tax, and others.

Specific enterprises[edit]

While many sectors of the economy function under general rules of enterprises alone, specific enterprise laws developed where "free markets" were seen as inadequate to protect consumer or public interests. In enterprises that concerned central social and economic rights, were "network" or "natural monopolies", for "public goods", or where significant capital investment was necessary, the UK law developed specific rules. Usually, a combination of public ownership, positive rights of voice for users or citizens, or sector-specific regulators emerged. These regulate the rights of exit, basic standards, and voice of stakeholders, beyond investors of capital or labour.

Education[edit]

According to the Universal Declaration of Human Rights article 26 states everyone has the right to education, that is "free, at least in the elementary and fundamental stages" and "higher education shall be equally accessible to all on the basis of merit."[2] In practice, the UK has always gone further than international law requires, guaranteeing free childhood, higher and adult education, plus maintenance grants for most of the twentieth century. It has, however, been intensively debated whether schools should be allowed to segregate students according to parental income, and the extent to which fees deter people from pursuing the education they aspire to.[3] Currently there is no coherent structure to UK education. While universities have passed from being private corporations, to public, to autonomous institutions, tuition fees have varied dramatically since the Teaching and Higher Education Act 1998. Similarly, there are at least five different kinds of school: comprehensive schools that are publicly owned and run, grammar schools in some counties that have selective admissions, "academies" that are mainly public but enable some private contributions and governance, and private fee-paying schools that depend on charging parents money for tuition (also called "independent" or "public", following the Public Schools Act 1868 schools, in many quarters). Some schools also apply for "specialist" status if they focus on particular curriculum topics.

Universities are funded by endowments, funding councils paid for by taxation, and tuition fees levied on students. Cambridge's endowment, at £6.25bn is the largest, while tuition fees have been abolished in Scotland and remain highly controversial elsewhere.

Universities in the UK do not have a coherent system of funding or governance, and both remain heavily debated.[4] Before 1998, universities were funded mainly by central government, although they have been increasingly reliant on charging students and seeking to raise private capital. First, universities have the power to generate income through endowment trust funds, accumulated over generations of donations and investment.[5] Second, under the Further and Higher Education Act 1992 there are funding councils paid for through general taxation for England, Wales, Scotland and Northern Ireland. For England and Wales, the Secretary of State appoints 12 to 15 members and the chair, of which 6 to 9 should be academics and the remainder with "industrial, commercial or financial" backgrounds. Funds are administered at the councils' discretion but must consult with "bodies representing the interests of higher education institutions" such as the University and College Union and Universities UK.[6] After the Higher Education and Research Act 2017, the English council from 2018 will be renamed the "Office for Students".[7] Further, there are seven research councils (AHRC, ESRC, MRC, etc) which distribute funds after peer review of applications by academics conducting research.[8] Third, and most controversially, funding may come from charging students. From WW2 tuition fees in the UK were effectively abolished and local authorities paid maintenance grants. The Education Act 1962 formally required this position for all UK residents,[9] and this continued through the expansion of university places recommended by the Robbins Report of 1963.[10] However, over the 1980s and 1990s, grants were diminished, requiring students to become ever more reliant on their parents' wealth. Further, appointed in 1996, the Dearing Report argued for the introduction of tuition fees because it said graduates had "improved employment prospects and pay."[11] Instead of funding university through progressive tax, the Teaching and Higher Education Act 1998 mandated £1000 fees for home students. In England, this rose to £3000 in the Higher Education Act 2004, and £9000 after the Browne Review in 2010 led by the former CEO of oil corporation BP plc.[12] In 2017, the limit on fees was £9,250 for students in England,[13] £9000 in Wales,[14] and £3,805 in Northern Ireland. The same rates apply for European Union students, who cannot be discriminated against under EU law.[15] By contrast, under the Scotland Act 1998, the Scottish government resolved not to introduce tuition fees for students under 25.[16] Under EU law, while the UK Parliament does not abolish tuition fees, that English students are charged tuition fees in Scottish universities while EU students may not be, because non-discrimination for free movement of citizens does not apply to internal domestic affairs.[17] For English universities, the Higher Education Act 2004 enables the Secretary of State to set fee limits, while universities are meant to ensure "fair access" by drafting a "plan" for "equality of opportunity".[18] There is no limit on international students fees, which have steadily risen to typically around double. A system of student loans is available for UK students through the government owned Student Loans Company. Means-tested grants were also available, but abolished for students who began university after August 2016. While EU students qualify for the same fees as UK students, they only qualify for loans (or previously grants) if they have been resident for three years in the UK.[19] As the UK is in a minority of countries to still charge tuition fees, increasing demands have been made to abolish fees on the ground that they burden people without wealthy families in debt, deter disadvantaged students from education, and escalate income inequality.[20]

Almost all universities by law require staff and student representation in the governing body. Lack of transparency means many rules, like under the King's College London Act 1997, have not yet been put into practice.[21]

Governance of universities is set by each university's constitution, typically deriving from an Act of Parliament, a Royal Charter or an Order in Council issued by the Privy Council. The most progressive models support a high degree of voice for staff and students. Reforms were first put into law after an Oxford University Commission of 1852 stated it must reverse "successive interventions by which the government of the University was reduced to a narrow oligarchy."[22] For example, since the Cambridge University Act 1856 set its rules in law,[23] Cambridge University's statutes require that its Regent House (mostly full-time university members) elects its governing body, the 23 member "Council". Four members are elected by heads of colleges, four by professors and readers, eight by other academic fellows, three by students, four by a "grace" (a vote) of the whole Regent House.[24] At the London School of Economics, which unusually the legal form of a company limited by guarantee, its constitution currently requires its 17 member "Council" to have two student representatives, three staff representatives.[25] Anomalously, the King’s College London Act 1997 required a 38 member Council with five ex-officio members, twenty lay appointees, eight elected by academics, three elected by students, and two by non-academic staff members, however this provision still remains to be put into effect on the "appointed day".[26] Other universities have a broad variety of governance structures,[27] although if there is not a special statute or constitution, the general rules are set by the Education Reform Act 1988. This says that university governing bodies with constitutions issued by the Privy Council should have between 12 and 24 members, with up to thirteen lay members, up to two teachers, up to two students, and between one and nine members co-opted by the others.[28] The wide variations in governing bodies raise the question about staff or student voice should have any limit, given their fundamental expertise in university life.[29] So far as rights to other standards go for staff, or students, universities are subject to both judicial review and rights in contract law because they are seen as having both an equally "public" and "private" nature.[30] In a leading case of Clark v University of Lincolnshire and Humberside a student claimed that she should not have received a third class degree after her computer crashed, she lost an assignment, and was forced to rush a new one.[31] The Court of Appeal held that her application for both breach of contract and judicial review should not be struck out because there could be a good case to hear, so long as it did seek to overturn "issues of academic or pastoral judgment" where "any judgment of the courts would be jejune and inappropriate". However, the shorter time limit of three months in judicial review was more appropriate than six years in contract.[32] Cases which have sought to challenge academic judgment for failing students are typically bound to fail, as grading with a fair process is in the bounds of academic judgment.[33] In Buckland v Bournemouth University, where the university management interfered with academic assessment of student grades, this founded a right for a professor to claim he was constructively and unfairly dismissed.[34] All access to education must be free from unlawful discrimination under the Equality Act 2010.[35] In the Higher Education Act 2004 sections 11-21 provides for a modern complaints procedure to be followed in universities.[36]

Schools
Libraries

Health[edit]

Like education, there is a universal right to "health and well-being" including "medical care and necessary social services".[37] The National Health Service, founded in 1946, has consistently been seen as one of the most important aspects of the UK's constitution,[38] and goes considerably beyond international human rights standards. Its founding principle, that everyone should receive health care free, as a right, is usually seen as politically "untouchable", and is consistently rated as the UK's most popular institution.[39] However, the details of funding and governing health have been volatile and contested. The UK has among the world's highest life expectancy (82.8 years in 2015), but spends a relatively low amount of money on its service (9.7 per cent of GDP in 2016).[40] Since the Health and Social Care Act 2012 changed its governance, health care expenditure rose dramatically without visible health gains.[41] The National Health Service is funded directly by the UK Treasury from general taxation, which requires no citizen to buy insurance, or pay upfront costs (except for capped, and means tested prescription charges for medicines, dental and optical service in England.[42] Scotland, Wales or Northern Ireland scrapped prescription charges).[43] According to the NHS Constitution for England art 1(2), "Access to NHS services is based on clinical need, not an individual’s ability to pay".[44] Health care is a devolved matter, although all each country of the UK organised its health system after the proposals of the landmark Beveridge Report of 1942.[45] The Beveridge model of health provision, common to countries like Denmark, Sweden or Greece, removed the requirement of contributions by workers under the National Insurance Act 1911.[46] Insurance systems continue in countries like France, Germany,[47] or the United States.[48] As the UK government bears the cost of health care, and the potential to profit from people being ill is eliminated, the government has a strong incentive to improve public health with measures like the Public Health Act 1961, the Health and Safety at Work Act 1974, or the Environmental Protection Act 1990.

Aneurin Bevan at a Manchester hospital on the NHS's first day in 1948 said to get the British Medical Association to agree to a public health system he had "stuffed their mouths with gold". Today, the NHS has universal support and has among the world's best health outcomes for money spent.[49]

National Health Service governance has seen three phases of change. While the NHS Constitution states patients and staff should be "involved" and "engaged", the actual right of stakeholders to vote has been slow.[50] First, and originally, the NHS Act 1946 created a system of 14 regional hospital boards that would pay for staff, buildings and equipment at hospitals, and gave grants to local health authorities in each council which ran health centres overseen by "executive councils".[51] The Minister of Health (with Whitehall civil servants) appointed the regional boards, while executive councils and local health authorities were medical professional representatives (though not necessarily elected), local government and Minister appointees.[52] In 1973, regional hospital boards were renamed Regional Health Authorities, and 90 Area Health Authorities plus 205 District Health Authorities took over from the more numerous local health authorities, while the government aimed to give stakeholders more direct voting rights in all.[53] Second, from the NHS and Community Care Act 1990 health authorities had to predict and account for their spending, and contract for their purchases of medical services from NHS trusts, which would compete among one another to sell health services. This did not yet mean that private companies could also compete, although the NHS (Private Finance) Act 1997 enabled the Secretary of State to approve "private finance initiative" schemes to borrow money for, or lease, the building and running of health facilities from private contractors (e.g. Telereal Trillium Ltd, Innisfree Ltd or HSBC Infrastructure Co Ltd). From 1995 to 2006 a new NHS Executive was created to manage the NHS in England, but was reabsorbed into the Department of Health. The Executive or Department oversaw Strategic Health Authorities (28 reduced to 10), and Primary Care Trusts (303 reduced to 101) which provided health services, and bought or "commissioned" "secondary care" health services (e.g. from a specialist doctor). From 2003, NHS foundation trusts were created, which could borrow money without Department of Health approval.[54] Under the National Health Service Act 2006 Schedule 7, its "Council of Governors" must have a constitution where at least three governors (but under half) must be elected by the foundation trust's employees, at least one by nearby local authorities, one by a university (if any) in the area.[55] A trust's constitution is free to enable residents, employees or patients to vote, although the law does not fix rules.[56] Third, instead of enabling NHS Foundation Trusts to take purchasing in-house, the Health and Social Care Act 2012 set up around 200 Clinical Commissioning Groups to replace PCTs.[57] CCGs are funded and mediated by NHS England.[58] According to the HSCA 2012, a CCG is a "body corporate" that should buy services, with members who can set pay for themselves.[59] A CCG must include at least 6 members (many came from abolished PCTs, General Practitioners or private business), with one person qualified in accounting or finance, a nurse, a secondary care specialist, and two lay people who understand finance and the local area.[60] Two central features of the Health and Social Care Act 2012 were that section 75 required commissioning was subjected to competition law (i.e. CCGs are potentially unable to cooperate to bargain down drug company prices, etc),[61] and section 165 enabled NHS Foundation Trusts to derive up to 49% of their income from private work.[62] In theory, CCGs are meant not to discriminate, seek the best "value for money" and avoid conflicts of interest when buying services.[63] However, the enforcement of the prohibition on conflicts of interest requires costly judicial review, while derivative claims by patients or staff are excluded without membership. Although CCGs are under a duty to "involve" patients and the public in decision-making,[64] those stakeholders can be ignored because unlike in NHS Foundation Trusts they have no right to vote. The Care Quality Commission and a subordinate Healthwatch England network is meant to inspect and maintain standards.

The Health and Social Care Act 2012 changes, and the private finance initiative have been opposed by protests and groups like "Keep Our NHS Public". Since 2012, with more private money, the cost of the NHS has risen without better outcomes.[65]

Although rights to vote are lacking, patients have some rights to bring claims in court over levels of service. First, the Secretary of State for Health is meant to improve the "physical and mental health of the people" and "have regard to the need to reduce inequalities" in health.[66] These duties, however, are difficult to enforce in practice because the courts give wide discretion to Ministers in judicial review. Second, it is possible to sue in tort for medical negligence if operations go wrong. This is controversial because (unlike New Zealand's Accident Compensation Corporation) claims require litigation, and substantial sums of money go to lawyers, instead of the person who is harmed and withdraws resources for other NHS patients. Third, challenges can be brought over the refusal to provide treatment, although they are unlikely to succeed. For instance, in R (B) v Cambridge Health Authority parents claimed their 11 year old girl should receive a second bone marrow transplant for myeloid leukemia, even though doctors said success was 20% likely and would cause "considerable suffering".[67] The Sun and The Daily Mail said the boy was being ‘Condemned by Bank Balance’ and ‘Sentenced to Death’ by the NHS. Although Laws J held that refusal was inadequate,[68] Sir Thomas Bingham MR held the health authority acted rationally and fairly.[69] After the case, because of the tabloid campaign, a donor paid for £75,000 in private treatment, but the operation failed.[70] By contrast in R (Coughlan) v North and East Devon HA Mrs Coughlan successfully claimed to remain at the "Mardon House" care home after an accident left her tetraplegic and she was promised it was a "home for life". Lord Woolf MR held in judicial review that the promise generated a "legitimate expectation" that was "equivalent to a breach of contract in private law", which could not be unilaterally withdrawn, even if the Secretary of State was concerned about cost.[71] Further, in R (Ann Marie Rogers) v Swindon Primary Care Trust Sir Anthony Clarke MR held that a PCTs reasons for refusing Rogers Herceptin treatment for breast cancer were inadequate. This drug was yet not approved by the National Institute for Health and Care Excellence, but simply stating Rogers' case was not "exceptional" (as other people were refused the drug) was not a reason in itself, and its decision was therefore irrational.[72] Within the European Union, British residents also have the right to move to other member states for treatment and be reimbursed if NHS waiting lists happen to be unreasonably long, assessed by objective criteria.[73] For example, in R (Watts) v Bedford Primary Care Trust, Mrs Watts paid £3900 for a hip replacement operation in France after the NHS waiting lists were 4 to 6 months, and successfully claimed that she should be reimbursed by the NHS.[74] These rights to move for health and be reimbursed by the NHS, however, may be removed if the UK leaves the European Union and the single market. No charges can be applied by the NHS to people who are "ordinarily resident" in the UK,[75] although controversially the Conservative government introduced a "duty" on hospitals and health services to charge overseas visitors if they fall sick. Given the tiny number of cases, most health services refused to charge patients even when they could, because of disproportionate bureaucratic cost, and compassion.[76] Another issue of migration, is that a deportation of an illegal migrant is very unlikely to be delayed by ill-health. In N v United Kingdom, the European Court of Human Rights held that a citizen of Uganda had no right under ECHR article 3 to delay deportation, even though health treatment for HIV/AIDS was highly unlikely there.[77] The UK, however, has the option at any time to improve its service beyond the minimum standards of human rights.

Banking[edit]

UK banking has two main parts.[78] First, the Bank of England administers monetary policy, influencing interest rates, inflation and employment, and it regulates the banking market with HM Treasury, the Prudential Regulation Authority and Financial Conduct Authority. Second, there are private banks, and some non-shareholder banks (co-operatives, mutual or building societies), that provide credit to consumer and business clients. Borrowing money on credit (and repaying the debt[79] later) is important for people to expand a business, invest in a new enterprise, or purchase valuable assets more quickly than by saving. Every day, banks estimate the prospects of a borrower succeeding or failing, and set interest rates for debt repayments according their predictions of the risk (or average risk of ventures like it). If all banks together lend more money, this means enterprises will do more, potentially employ more people, and if business ventures are productive in the long run, society's prosperity will increase. If banks charge interest that people cannot afford, or if banks lend too much money to ventures that are unproductive, economic growth will slow, stagnate, and sometimes crash. Although UK banks, except the Bank of England, are shareholder or mutually owned, many countries operate public retail banks (for consumers) and public investment banks (for business). The UK used to run Girobank for consumers, and there have been many proposals for a "British Investment Bank" (like the Nordic Investment Bank or KfW in Germany) since the global financial crisis of 2007-2008, but these proposals have not yet been accepted.

The Bank of England acts as the UK's central bank, influencing interest rates paid by private banks, to achieve targets in inflation, growth and employment.

The Bank of England provides finance and support to, and may influence interest rates of the private banks through monetary policy. It was originally established as a corporation with private shareholders under the Bank of England Act 1694,[80] to raise money for war with Louis XIV, King of France. After the South Sea Company collapsed in a speculative bubble in 1720, the Bank of England became the dominant financial institution, and acted as a banker to the UK government and other private banks.[81] This meant, simply by being the biggest financial institution, it could influence interest rates that other banks charged to businesses and consumers by altering its interest rate for the banks' bank accounts.[82] It also acted as a lender through the 19th century in emergencies to finance banks facing collapse.[83] Because of its power, many believed the Bank of England should have more public duties and supervision. The Bank of England Act 1946 nationalised it. Its current constitution, and guarantees of a degree of operational independence from government, is found in the Bank of England Act 1998. Under section 1, the bank's executive body, the "Court of Directors" is "appointed by Her Majesty", which in effect is the Prime Minister.[84] This includes the Governor of the Bank of England (currently Mark Carney) and up to 14 directors in total (currently there are 12, 9 men and 3 women[85]).[86] The Governor may serve for a maximum of 8 years, deputy governors for a maximum of 10 years,[87] but they may be removed only if they acquire a political position, work for the bank, are absent for over 3 months, become bankrupt, or "is unable or unfit to discharge his functions as a member".[88] This makes removal hard, and potentially a court review. A sub-committee of directors sets pay for all directors,[89] rather than a non-conflicted body like Parliament. The Bank's most important function is administering monetary policy. Under BEA 1998 section 11 its objectives are to (a) "maintain price stability, and (b) subject to that, to support the economic policy of Her Majesty’s Government, including its objectives for growth and employment."[90] Under section 12, the Treasury issues its interpretation of "price stability" and "economic policy" each year, together with an inflation target. To change inflation, the Bank of England has three main policy options.[91] First, it performs "open market operations", buying and selling banks' bonds at differing rates (i.e. loaning money to banks at higher or lower interest, known "discounting"), buying back government bonds ("repos") or selling them, and giving credit to banks at differing rates.[92] This will affect the interest rate banks charge by influencing the quantity of money in the economy (more spending by the central bank means more money, and so lower interest) but also may not.[93] Second, the Bank of England may direct banks to keep different higher or lower reserves proportionate to their lending.[94] Third, the Bank of England could direct private banks adopt specific deposit taking or lending policies, in specified volumes or interest rates.[95] The Treasury is, however, only meant to give orders to the Bank of England in "extreme economic circumstances".[96] This should ensure that changes to monetary policy are undertaken neutrally, and artificial booms are not manufactured before an election.

The largest UK banks are HSBC, Barclays, the Royal Bank of Scotland and Lloyds.

Outside the central bank, banks are mostly run as profit-making corporations, without meaningful representation for customers. This means, the standard rules in the Companies Act 2006 apply. Directors are usually appointed by existing directors in the nomination committee,[97] unless the members of a company (invariably shareholders) remove them by majority vote.[98] Bank directors largely set their own pay, delegating the task to a remuneration committee of the board.[99] Most shareholders are asset managers, exercising votes with other people's money that comes through pensions, life insurance or mutual funds, who are meant to engage with boards,[100] but have few explicit channels to represent the ultimate investors.[101] Asset managers rarely sue for breach of directors' duties (for negligence or conflicts of interest), through derivative claims.[102] However, there is some public oversight through the bank licensing system.[103] Under the Financial Services and Markets Act 2000 section 19 there is a "general prohibition" on performing a "regulated activity", including accepting deposits from the public, without authority.[104] The two main UK regulators are the Prudential Regulation Authority and the Financial Conduct Authority. Once a bank has received authorisation in the UK, or another member state, it may operate throughout the EU under the terms of the host state's rules: it has a "passport" giving it freedom of establishment in the internal market. Since the Credit Institutions Directive 2013,[105] there are some added governance requirements beyond the general framework: for example, duties of directors must be clearly defined, and there should be a policy on board diversity to ensure gender and ethnic balance. If the UK had employee representation on boards, there would also be a requirement for at least one employee to sit on the remuneration committee,[106] but this step has not yet been taken.

Government ultimately guarantees the banking system. By 2009, the UK government had been forced to nationalise Northern Rock, Bradford & Bingley, the Royal Bank of Scotland and part of HBOS-Lloyds TSB. The Banking Act 2009 contains a system to stop systemic crisis from banker insolvency.

While banks perform an essential economic function, supported by public institutions, the rights of bank customers have generally been limited to contract. In general terms and conditions, customers receive very limited protection. The Consumer Credit Act 1974 sections 140A to 140D prohibit unfair credit relationships, including extortionate interest rates. The Consumer Rights Act 2015 sections 62 to 65 prohibit terms that create contrary to good faith, create a significant imbalance, but the courts have not yet used these rules in a meaningful way for consumers.[107] Most importantly, since Foley v Hill the courts have held customers who deposit money in a bank account lose any rights of property by default: they apparently have only contractual claims in debt for the money to be repaid.[108] If customers did have property rights in their deposits, they would be able to claim their money back upon a bank's insolvency, trace the money if it had been wrongly paid away, and (subject to agreement) claim profits made on the money. However, the courts have denied that bank customers have property rights.[109] The same position has generally spread in banking practice globally, and Parliament has not yet taken the opportunity to ensure banks offer accounts where customer money is protected as property.[110] Because insolvent banks do not, governments have found it necessary to publicly guarantee depositors' savings. This follows the model, started in the Great Depression,[111] the US set up the Federal Deposit Insurance Corporation, to prevent bank runs. In 2017, the UK guaranteed deposits up to £85,000,[112] mirroring an EU wide minimum guarantee of €100,000.[113] Moreover, because of the knock-on consequences of any bank failure, because bank debts are locked into a network of international finance, government has found it practically necessary to prevent banks going insolvent. Under the Banking Act 2009 if a bank is going into insolvency, the government may (and usually will if "the stability of the financial systems" is at stake) pursue one of three "stabilisation options".[114] The Bank of England will either try to ensure the failed bank is sold onto another private sector purchaser, set up a subsidiary company to run the failing bank's assets (a "bridge-bank"), or for the UK Treasury to directly take shares in "temporary public ownership". This will wipe out the shareholders, but will keep creditors' claims in tact. One method to prevent bank insolvencies, following the "Basel III" programme of the international banker group, has been to require banks hold more money in reserve based on how risky their lending is. EU wide rules in the Capital Requirements Regulation 2013 achieve this in some detail, for instance requiring proportionally less in reserves if sound government debt is held, but more if mortgage-backed securities are held.[115]

Natural resources[edit]

Natural resources have historically been critical for energy and raw materials in the UK economy. Before the industrial revolution, energy and heating needs were served mainly by burning timber. The development of the steam engine, particularly after James Watt's patents in 1775, and rail transport led coal to be the UK's dominant energy source, now governed under the Coal Industry Act 1994.[116] The development of the internal combustion engine in the late 19th century, led to a gradual displacement of coal by oil and gas. In the 21st century, because of critical threat of climate damage caused by human beings burning coal, oil and gas (or any fossil fuel releasing carbon dioxide and greenhouse gases), the UK is trying to shift to energy based on zero-carbon: wind, hydro or solar based power. In 2015, the UK's energy consumption was 47% petroleum, 29% natural gas, 18% electricity and 5% other,[117] but the growth of renewable electricity, and the introduction of electric vehicles is increasingly rapid. Under the Climate Change Act 2008, the UK government is bound to ensure there is an 80% reduction of carbon emissions compared to 1990 levels, when the Kyoto Protocol was drafted. This is meant to prevent the damage from extreme weather, flooding and coastlines going under the sea. The scientific community takes the view that, while the oil and gas industry still provides energy, it must be phased out.

An anti-fracking protest at a limestone oil well in Balcombe.

Although both coal and oil production were publicly owned in the past,[118] coal, oil and gas extraction is performed today by private corporations under government licence. The largest entities include BP, Shell, but also now joined by entirely foreign firms such as Apache, Talisman, CNR, TAQA or Cuadrilla.[119] This means that ordinary UK company law (or US corporate law) sets the governance rights of oil and gas corporations, with board of directors invariably removable only by shareholders (typically large asset managers). The Petroleum Act 1998 section 2, rights of land ownership do not equate to rights to oil and gas (or hydrocarbons) underneath. In Bocardo SA v Star Energy UK Onshore Ltd, the Supreme Court did hold that a landowner may sue a company for trespass if it drills under its land without permission, but a majority held that damages will be nominal.[120] This meant that a landowner in Surrey was only able to recover £1000 when a licensed oil company drilled a diagonal well 800 to 2800 feet under its property, and not the £621,180 awarded by the High Court to reflect a share of the oil profits.[121] Similarly, under the Continental Shelf Act 1964 section 1 rights "outside territorial waters with respect to the sea bed and subsoil and their natural resources" are "vested in Her Majesty." Since 1919, the Crown has prohibited searching and boring for oil and gas without a licence.[122] Under the Energy Act 2016, licensing is managed by the Oil and Gas Authority.[123] Under section 8, the OGA should hand out licences so as to minimise future public expense, secure the energy supply, ensure storage of carbon dioxide, fully collaborate with the UK government, innovation, and stable regulation to encourage investment. Overshadowing this is the duty in PA 1998 sections 9A-I on the Secretary of State for ‘maximising the economic recovery of UK petroleum’.[124] The Secretary of State may give directions to the OGA in the interests of national security, or the public in exceptional circumstances,[125] while the OGA is nominally capable of funding itself through fees on license applicants and holders.[126] In the process of licensing, the Hydrocarbons Licensing Directive Regulations 1995 require objective, transparent and competitive criteria to be applied by OGA.[127] Under regulation 3, the OGA should consider an applicants technical and financial capability, price, previous conduct, and refuse all applications if none are satisfactory, while regulation 5 requires that all criteria to be applied are stated in the public notice for tenders. Under PA 1998 section 4, model licence clauses are prescribed by the Secretary of State, for instance in the Petroleum Licensing (Production) (Seaward Areas) Regulations 2008. Schedule 1's model clauses give the OGA discretion over the licence term, the licensee's obligation to submit its work programme, revocation on breach of a licence, arbitration for disputes, or health and environmental safety.[128] For onshore oil and gas extraction, and particularly hydraulic fracturing (or "fracking"), there are further requirements that must be fulfilled. For fracking, these include negotiating with landowners where a drill site is situated, getting the Mineral Planning Authority's approval for exploratory wells, consent from the council under the Town and Country Planning Act 1990 section 57, getting permission for disposing of hazardous waste and inordinate water use,[129] and finally consent from the Department for Business, Energy and Industrial Strategy.[130] In R (Frack Free Balcombe Residents Association) v West Sussex CC the resident group in Balcombe lost an action for judicial review of their Council's planning permission for Cuadrilla Balcombe Ltd to explore the potential to frack for shale gas. Large protests had opposed any steps toward fracking. However, Gilbart J held that the council had not been wrong in refusing to consider public opposition, and took the view would have acted unlawfully if it had considered the opposition.[131]

The Brent Spar oil storage buoy is one of 470 platforms and 5000 wells that must be decommissioned, to avoid environmental damage, as resource companies promised in their licences. Companies have lobbied for tax cuts, meaning that taxpayers bear the costs.

The interests of third parties and the public are partially represented through provisions on access to infrastructure, tax, and decommissioning. Under the Petroleum Act 1998 sections 17-17H there is a right of companies that are not owners of pipelines or gas interconnectors to use the infrastructure if there is spare capacity. This is not well utilised, and it usually left to commercial negotiation. Under the Energy Act 2011 sections 82-83 the Secretary of State can require a pipeline owner gives access on its own motion, apparently to reduce the problem of companies being too timid to exercise legal rights for fear of commercial repercussions. Taxation on oil and gas outputs have increasingly been reduced. Initially the Oil Taxation Act 1975 section 1 required a special Petroleum Revenue Tax, set as high as 75% of profits in 1983, but this ended for new licences after 1993, and then reduced from 50% in 2010, down to 0% in 2016.[132] Under the Corporation Tax Act 2010 sections 272-279A there is still a "ring fenced corporation tax", on individual fields that are "ring fenced" from other activities, set at 30%, but just 19% for smaller fields. An additional "supplementary charge" of 10% of profits was introduced in 2002 to ensure a ‘fair return’ to the state, because ‘oil companies [were] generating excess profits’.[133] Finally, under the Petroleum Act 1998 sections 29-45 require responsible decommissioning of oil and gas infrastructure. Under section 29, the Secretary of State can require a written notice of a decommissioning plan, on which stakeholders (e.g. the local community) must be consulted. Under section 30, notice regarding abandonment can be served on anyone who owns or has an interest in an installation. There are fines and offences for failure to comply. Estimates for the cost of decommissioning the UK's offshore platforms have been £16.9bn in the next decade, and £75bn to £100bn in total. A series of objections have been raised against the government's policy of cutting taxes while subsidising BP, Shell and Exxon for these costs.[134]

Energy[edit]

The need to stop climate damage, and create sustainable energy, has driven UK energy policy. The Climate Change Act 2008 section 1 requires an 80% reduction on 1990 greenhouse gas emissions by 2050, but this can always be made more stringent in line with science or international law.[135] Eliminating carbon emissions and fossil fuels means using only electricity (no more petrol or gas) and only using zero carbon inputs. In 2015, total UK energy use was composed of 18% electricity, 29% natural gas, and 49% petroleum.[136] Electricity itself, by 2015, was generated 24% from "renewable" sources, 30% gas, 22% coal,[137] and 21% nuclear.[138] "Renewable" sources were 48% wind, 9% solar (doubling each year to 2016), and 7.5% hydroelectric. But 35% of "renewable" electricity was "bioenergy", that is mostly timber, emitting more carbon than coal as it is burnt by converted coal stations.[139] Under the Energy Act 2013 section 1, the Secretary of State can set legally binding decarbonisation targets in electricity,[140] but the government has not done this yet. Under section 131, the Secretary of State should, however, give Parliament an annual "Strategy and Policy Statement" on its strategic energy priorities, and how they will be achieved.[141]

The Westmill Solar Co-operative was established by residents in Oxfordshire to generate community solar power. Solar panel prices have decreased exponentially. Every home or business can access the feed-in tariff. In 2017, 14 280Watt solar panels, and a 10kW battery (enough to power a home, and have zero electricity bills indefinitely) cost around £7500.

Two main strategies have pushed a transition to renewable power. First, under the Electricity Act 1989 sections 32-32M, the Secretary of State was able to place renewables obligations on energy generating companies.[142] Large electricity generating companies (i.e. the big six, British Gas, EDF, E.ON, nPower, Scottish Power and SSE) had to buy fixed percentages of "Renewable Obligation Certificates" from renewable generators if they did not meet set quotas in their own electricity generators. This encouraged significant investment in wind and solar farms, although the Energy Act 2013 enabled the scheme to be closed to new installations over 5MW capacity in 2015 and all in 2017.[143] In Solar Century Holdings Ltd v SS for Energy and Climate Change a group of solar companies challenged the closure decision by judicial review. Solar Century Ltd claimed they had a legitimate expectation from the government in its previous policy documents for "maintaining support levels".[144] The Court of Appeal rejected the claim, because no unconditional promise was given. As a replacement, under EA 2013 sections 6-26 created a "contracts for difference" system to subsidise energy companies' investment in renewables. The government owned "Low Carbon Contracts Co." pays licensed energy generators money under contracts lasting, for example, 15 years, reflecting the difference between a predicted future price of electricity (a "reference price") and a predicted future price of electricity with more renewable investment (a "strike price"). The LCCC gets its money from a levy on the energy companies, which pass costs onto consumers. This system was apparently seen by the government as preferable to direct investment by taxing polluters' profits.[145] The second strategy to boost renewables was the Energy Act 2008's "feed-in tariff".[146] Electricity produced with renewables has to be paid a certain price by electricity companies: a "generation" rate (even if the producer uses the energy itself) and an "export" rate (when the producer sells to the grid).[147] In PreussenElektra AG v Schleswag AG a large energy company (now part of E.ON) challenged a similar scheme in Germany. It argued that the feed-in tariff operated like a tax to subsidise renewable energy companies, since non-renewable energy companies passed the costs on, and so should be considered an unlawful state aid, contrary to TFEU article 107.[148] The Court of Justice rejected the argument, holding that the redistributive effects were inherent in the scheme, as indeed they are in any change to private law.[149] Since then, feed-in tariffs have been considerably successful at promoting small scale electricity production by homes and business, and solar and wind in general.

The Gwynt y Môr wind farm, is owned 50% by RWE, 30% Stadtwerke München, 10% Siemens, and 10% UK Green Investment Bank. It has 576 MW capacity.

The ownership and governance voice of stakeholders in UK energy companies has been mostly monopolised by private shareholders since the Electricity Act 1989 started the privatisation of the Central Electricity Generating Board. However, in 2015 Robin Hood Energy run by Nottingham City Council, and Bristol Energy run by Bristol City Council became the first new municipally owned energy companies, selling below profit-making company prices and committing to renewable sources.[150] This follows widespread publicly owned energy models around Europe, which the Court of Justice of the European Union held could not be challenged. Under the Treaty on the Functioning of the European Union article 345 states the EU treaties "shall in no way prejudice the rules in Member States governing the system of property ownership."[151] Nevertheless in Netherlands v Essent NV a private Dutch energy company, Essent NV, argued that a Dutch law requiring public ownership of all shares in electricity distribution companies violated free movement of capital in TFEU article 63,[152] as in other cases restrictions on golden shares had been struck down. But the CJEU held nothing precluded either nationalisation or privatisation. It is up to member states alone, and the Dutch government had shown "overriding reasons in the public interest" for public ownership. Given the international evidence that publicly owned energy companies are cheaper,[153] there has been an increase Europe-wide of "remunicipalisation" of services. Many local councils also require both employee and citizen representation in their energy companies. For example, the "Communal Ordinance of North Rhine-Westphalia" (which includes cities like Dortmund) §§107-114 gives councils capacity to create energy companies. If they do, one third of board members will ordinarily be employee representatives, and the constitution must be written to include council representatives,[154] although there are not yet provisions requiring direct voting rights for residents. The Office of Gas and Electricity Markets, or Ofgem,[155] carries out licensing for electricity generation. Its chair and at least two other board members must be appointed by the Secretary of State for 5 to 7 years, and while ostensibly "independent",[156] they must follow directions of the Minister.[157] Under the Electricity Act 1989 nobody can generate and supply electricity to others without a licence.[158] Ofgem follows a Standard Electricity Supply Licence, which can be modified by the Secretary of State if circumstances change,[159] for instance, to alter price controls.[160] There are exemptions from getting a licence, for instance, for small generators under 10MW (or up to 50MW if net capacity is under 100MW), or certain offshore generators.[161] Planning permission for non-exempt generators also require Secretary of State consent, and the granting of planning could be challenged.[162] In Trump International Golf Club Scotland Ltd v The Scottish Ministers Donald Trump, who had recently started his US Presidential campaign argued that the offshore Aberdeen Bay Wind Farm could not be built near his golf course.[163] He argued the Secretary of State could only give permission to existing licensees or exempt generators, ostensibly, by necessary implication from another provision on natural beauty. The Supreme Court unanimously held that Trump lost: there was to be no implied term. In R (Gerber) v Wiltshire Council, Mr Gerber attempted to challenge the construction of a 22 hectare solar farm near his grade II listed home Gifford Hall, because he thought it would have a "detrimental impact" on the "setting".[164] He had not noticed anything happening until some time after construction began, and then tried to argue that Wiltshire Council's "Statement of Community Involvement" required that he would have been notified about the plans he missed. The Court of Appeal unanimously rejected that any "legitimate expectation" in judicial review had been broken.

Electricity generated (KWh) from renewable sources in the United Kingdom between 2000 and 2015[165]

Unless citizens set up their own generation, or own energy companies through their council, they are guaranteed few other rights by law: the idea has been that Ofgem "protect the interests of consumers" by "promoting effective competition" is meant to automatically improve service.[166] In practice, further duties have been seen as necessary. The Electricity Act 1989 section 44 Ofgem can direct the maximum prices at which electricity may be sold.[167] Originally, the idea was that the regulator would "wither away" as effective market competition replaced any need for a state, but in a transition period prices would be capped through a formula known as "RPI - X". This was supposed to mean that energy companies could only raise their prices by the increase in the retail price index (RPI), minus a percentage calculated by Ofgem to reflect how much in efficiency savings (X) could be made, but also potentially allowing higher prices for investment.[168] Further minimal consumer rights are inserted into the Standard Electricity Supply Licences given to electricity companies. For example, under condition 27, a consumer cannot be disconnected unless all reasonable steps have been taken to let them pay bills (including a pay as you go meter), and pensioners may not be disconnected at all in the winter.[169] This has not, however, come close to eliminating the extra deaths from cold weather (estimated to be around 9000 people in 2016) from fuel poverty.[170] Analogous regulatory regimes for electricity apply to gas,[171] and to nuclear power.[172] In practice there has been no possibility to abolish government involvement, and in law there has been consistent recognition that whether owned by private shareholders or not, energy remains a public service that is the responsibility of the state.[173] When energy companies go into insolvency, often indebted to the government (but not always), they can be put into administrative receivership allowing that creditor greater control over the insolvency process.[174] Under the Standard Electricity Supply Licence, condition 8, Ofgem can impose a duty on energy companies to be a supplier of last resort.[175] These rules were updated slightly in 2011 so that the government can give financial support and keep a company trading until refinancing or a new owner is found.[176]

Water[edit]

Water is a universal human right,[177] and basic to survival. While the UK has the fortune of substantial rainfall, climate damage means water resources are under pressure, and less predictable than before.[178] Historically, water for drinking, general use, or sewerage was largely left to private arrangements.[179] The recurrence of water poisoning, and large public health crises were a part of people's ordinary existence until scientific advances of the 19th century. After the Broad Street cholera outbreak of 1854, John Snow first identified the cause of cholera as drinking water being polluted by excrement. Following the Great Stink of 1858, where the River Thames had become so bad smelling that it offended the Queen and forced Parliament to relocate, Joseph Bazalgette began to build the London sewerage system. Starting with the Public Health Act 1848 and its creation of a local board of health in each council, and the Public Health Act 1866, local government built drains, sewers, and began piping clean water to households. The Waterworks Clauses Act 1847 and 1863 provided model constitutions for the dozens of spreading private and local government water companies. The Public Health Act 1875 required all new houses to have running water and internal drainage. By 1944, there were over 1000 water suppliers in England and Wales, though 26 supplied half, and 97 a further quarter of total volume.[180] The Water Act 1945 organised a national water supply policy, before the Water Act 1973 finally organised 10 regional water authorities for England and Wales, and additional authorities in Scotland and Northern Ireland.[181] However, following other privatisations, the Water Act 1989 changed the 10 authorities into 10 private water companies, each with a local monopoly, subject to price caps of a new regulator known as Ofwat.[182] Scottish Water, after a public campaign remained publicly owned, and as a result has maintained significantly lower prices than in England and Wales.[183] Only around 10 per cent of water companies around the world are privatised,[184] tending to be less efficient and more expensive.[185]

Loch Faskally is one of many reservoirs used by publicly owned Scottish Water. Its prices are around 20% lower than privatised English and Welsh water companies.[186]

The publicly owned Scottish Water is appointed by Scottish Ministers,[187] and overseen by the Water Industry Commission for Scotland,[188] although it has no direct voting power for customers.[189] By contrast, in England and Wales, each company board is typically accountable to shareholders, mostly asset managers, under the Companies Act 2006. While both UK and EU law is clear that water companies, even if privatised, still are public bodies,[190] these companies pursue shareholder profit, only restricted by regulation. Ofwat (technically called the Water Services Regulation Authority) has at least three members appointed the Secretary of State,[191] and is meant to "protect the interests of consumers, wherever appropriate by promoting effective competition" and yet ensure companies have a "reasonable returns on their capital",[192] rather than simply act in the public interest.[193] Ofwat licences companies (known as water "undertakers") to operate water and sewer services with "instruments of appointment", and can impose various conditions.[194] Licences usually last 25 years but can be terminated on 10 years notice by government. Because of public outcry over rising prices,[195] the government tried to construct more competition, with the Water Act 2014 requiring suppliers can access or pump water through other providers' pipes, for a reasonable cost, so that consumers might choose their company.[196] In Scotland, it was thought this kind of competition could pose a public health risk.[197]

Under EU water law drinking water, bathing waters, and the general environment, like at the River Wandle, must be kept clean and improved.

As real competition in natural monopolies always appeared unlikely, Ofwat has always set upper limits to prices, historically for 5 year periods.[198] This has followed the formula of RPI - X + K, where prices should rise no more than the retail price index of inflation, reduced by efficiency savings (X), but allowing for capital investment (K). This means prices could be fixed down or go up. Companies must publicise an annual charging scheme approved by Ofwat,[199] while Ofwat must openly report its work programme, report to the Secretary of State, keep a register of appointments and make information on costs available.[200] Companies can appeal to the Competition and Markets Authority for disputes over access and price caps, while Ofwat can refer companies to the CMA for breaches of conditions.[201] After unacceptable experience of people being disconnected by private companies for non-payment,[202] new regulations introduced exemptions for vulnerable customers, particularly people who are unable to pay, have large families or have medical conditions.[203] Everyone has the right to be connect to a water supply and to sewers, but the cost of new connections is borne by the customer.[204] UK water quality is generally high, since large new investments were made following the EU Drinking Water Quality Directive 1998, requiring water is "wholesome and clean".[205] Ofwat is required to issue enforcement orders under the Water Industry Act 1991 section 18 to uphold drinking quality standards, rather than being content with "undertakings" from water companies.[206] The Drinking Water Inspectorate has powers of investigation.[207] There are further standards for water companies to keep up water pressure in pipes, respond quickly to letters, phone calls and keep appointments, restore supply and provide water in emergencies, and stop sewer flooding or compensate up to £1000.[208] Finally, the Consumer Council for Water is meant to hear complaints and publicise issues with Ofwat and water companies, but its members are not elected by water customers and it has no legal power to bind Ofwat or the companies.[209]

An 1828 cartoon of a woman dropping her teacup when she sees Thames Water magnified.[210] After the Great Stink of 1858, the London sewerage system was built under Joseph Bazalgette.

Water companies have a chequered history of responsibility for damage they cause, but also the law has failed to ensure businesses are fully responsible for water pollution. In principle, a water authority used to be strictly liable for damage it caused.[211] However, more recently water company liability particularly for sewerage leaks has not appeared to as a sufficient deterrent. In R v Anglian Water Services Ltd the Court of Appeal held that fines for pollution should always be set to ensure sufficient deterrence, but on the facts reduced a fine from £200,000 to £60,000.[212] In Marcic v Thames Water plc the House of Lords held that Thames Water plc was not liable in nuisance, or for breach of a homeowner's right to property, as sewerage repeatedly overflowed residents' gardens.[213] According to Lord Hoffmann, the owners had to use statutory mechanisms to secure accountability rather than suing in tort. More recently in Manchester Ship Canal Co Ltd v United Utilities Water Plc the Supreme Court held that United Utilities was responsible for trespass an pollution of canalways, but only before 1991 when statutory reform provided immunity.[214] By contrast, in Cambridge Water Co Ltd v Eastern Counties Leather plc, the House of Lords held that a tanner business was not liable for polluting the Cambridge Water supply with toxic chemicals, because it said the loss was not "reasonably foreseeable" and therefore too remote.[215] These cases sit uneasily with the principle that polluters should pay, and the scheme of the Water Framework Directive 2000 to ensure proper enforcement of clean water standards.[216]

Transport[edit]

As the home of the industrial revolution, and a densely populated country, the UK's transport networks are among the world's oldest and most used. Roman roads in Britain are still major thoroughfares. From medieval times, highways were maintained through turnpike trusts, a system of parish and toll funded roads.[217] While the British Empire developed as a maritime power abroad, canals were built in the early industrial revolution to transport large volumes of goods. With steam engine technology, railway construction spread, and then boomed from 1840. Private investors built railways with huge subsidies from Parliament, granting planning and compulsory purchase rights, and were only haphazardly held responsible in tort law for worker deaths, and damage to the environment. Under the Transport Act 1947, the government nationalised British Rail.[218] Yet in the post-war period, more people were encouraged to buy cars, and more goods transportation shifted into trucking. Commercial aviation also developed rapidly. British Rail was privatised once more after the Railways Act 1993 was put into effect in 1996, as again more people switched away from over-crowded roads to trains. The need to eliminate fossil fuels in accordance with the Climate Change Act 2008 means more trains have been electrified, and electric motor vehicles are slowly being introduced.

While train fares have increased beyond inflation since privatisation,[219] London Underground fares under public control have not increased under Labour mayors, but increased under a Conservative mayor.[220]

Since 2015, the Office of Rail and Road has been a combined regulator for railways and highways.[221] The chair and four other members is appointed by the Secretary of State for up to five year terms, and can be dismissed for a good reason.[222] Although it exercises no direct control, under the Railways Act 1993 section 4 the ORR has a long list of duties, including to improve railway service performance in the interest of passengers, promote usage, "competition", interconnection, safety, but also to enable railways companies "to plan the future of their businesses with a reasonable degree of assurance."[223] The Single European Railway Directive 2012 requires that infrastructure managers and "railway undertakings" are structurally separate, so that railway companies (whether public or privately owned) have less of an incentive to exclude other operators.[224] Each must have separate accounts and member states are obliged to run railways "at the lowest possible cost for the quality of service required",[225] although in practice this enables huge variety and ownership structures around different countries. In the UK, infrastructure is managed by Network Rail. It was originally privatised and called Railtrack plc, and was meant to run as a regulated monopoly, in private hands, and be in charge of railway tracks, signalling, tunnels, bridges, level crossings. However after the Hatfield train crash in 2000 which killed 4 people and injured 70, and the Potters Bar crash in 2001 which killed 7 and injured 76, it was forced into insolvent administration and the government took rail infrastructure back into public ownership.[226] In Weir v Secretary of State for Transport a group of 48,000 shareholders challenged the Minister's decision to force an insolvency procedure, arguing their property was being illegally taken and the Minister was guilty of "misfeasance" in public office, but these were completely rejected.[227] Network Rail, from 2003, became a not-for-profit company, re-investing in safety, and is accountable to the ORR.[228] New infrastructure projects will require planning permission, and environmental impact consultation. In R (HS2 Action Alliance Ltd) v SS for Transport a group of people opposed to the High Speed Rail 2 project failed the consultation standards in the Environmental Impact Assessment Directive 2011, because there was a party whipped vote in Parliament for its approval. The Supreme Court rejected the claim, because political organisation did not stop proper consultation and debat.[229] To run a train company itself, the Railways Act 1993 section 8 requires companies apply to the ORR for a licence, and pay Network Rail an access charge. Access to track under EU law must be "equitable, non-discriminatory and transparent",[230] but this does not mean charging practices cannot be updated. In Great North Eastern Railway Ltd v Office of Rail Regulation sued the ORR as other operators were not given a fixed charge for track access, but a charge varying with the number of passengers. It argued this was unlawful discrimination and state aid, but Sullivan J held the ORR had a broad discretion to set prices in the passengers' interest, and should be slow to challenge the expert regulator's decisions on technical pricing issues.[231] GNER subsequently lost its franchise of the East Coast Main Line after widespread public dissatisfaction to a temporary public operator called East Coast. Most controversially, the Railways Act 2005 section 25 prohibits any government body or government-appointed corporation from becoming a rail franchise in England and Wales.[232] The government-owned rail operators of France, the Netherlands, or Germany all run trains in the UK. But the UK government is the only one in the world that is prohibited from running UK trains. In 2016, Scotland was empowered to make Scottish trains public again,[233] and the same policy is supported by a large majority of the UK public.[234] Different rules apply to Transport for London, where the most controversial policies have surrounded the cost of Public Private Partnerships.[235] The Greater London Authority Act 1999, while transferring responsibility for Transport for London back to an elected Mayor,[236] required that the mayor follow public-private partnership agreements in rebuilding the London Underground and train network.[237] While the Mayor Ken Livingstone argued he was not bound and in an "impossible position", after being elected on a platform opposing privatisation, the High Court ruled that statute required he would be bound.[238] In 2008, one of the two main companies responsible for tube upgrades, Metronet went into administration with an estimated cost of £410m.[239]

Coal powered trains became the dominant form of transport in the 19th century, while oil powered motor vehicles dominated the 20th century.

Passengers have a number of rights codified in law, but little direct voice in the running of their services. The ORR can set any conditions in licences, including "the fares to be charged for travel".[240] But although there can be regulatory price caps, UK train prices have risen consistently every year, usually beyond inflation.[241] By contrast, in London where the Mayor has control,[242] fares have been consistently low when Labour mayors have been elected, although rising when a Conservative mayor was elected.[243] The EU Passenger Rights Regulation 2007 contains a host of other legal rights against train companies. Passengers have a right to take bicycles on trains if not too crowded, must have proper information on tickets, must be able to make reservations, and must receive minimum compensation for long delays.[244] Service standards can be challenged in judicial review. So, in R (Save Our Railways) v Director of Passenger Rail Franchising a passenger group argued that the Regulator unlawfully allowed a reduction in services in rural areas in its franchises. The Court of Appeal accepted the group's right to review, but referred the question back to the Regulator for reconsideration.[245] Passengers are represented in a Passengers' Council, with a chair appointed by the Secretary of State, regional government representation and others who are seen to represent passenger groups,[246] but they have no binding rights against train companies, rather than rights to investigate issues and make representations.[247] If train companies go insolvent, a special procedure deviating from the normal Insolvency Act 1986 procedure is followed, to give the government, rather than banks and creditors control over administration.[248] This does not affect the powers of the Office of Rail and Road and a Minister's powers to make directions against a company in administration.[249]

Electric vehicles have spread slowly, starting with Low emission buses in London. Fully electric delivery vehicles, buses, taxis, would eliminate 56% of climate damaging exhausts, while EV network infrastructure is needed to electrify private cars.[250]
Air traffic

Communication and media[edit]

Communication between people is fundamental to the democracy and human society. The rights to freedom of thought, expression, and freedom of the media are international human rights,[251] while so is "arbitrary interference" with "privacy", and one's "home or correspondence".[252] Communication has been revolutionised by the internet, as every traditional form of communication may also take place online: posting letters to emails, telephone calls to video chat, print media to digital content, and television to streaming. Historically, the regulation of communication systems was closely connected to state ownership and international treaties, from the Royal Mail, to the International Telecommunication Union established in 1865, to the Telegraph Act 1868 enabling the government make telegraph and telephone companies public.[253] However, a process of liberalisation,[254] and then privatisation,[255] took place between 1981 and 1984. Today, the Communications Act 2003 governs the infrastructure of the internet and other telecommunications, underpinned by four main Directives in EU law.[256]

The internet backbone is a series of copper and optical fibre networks that span the globe. In the UK, networks such as the publicly funded JANET, or the privately owned Liberty Global (Virgin Media) connect each computer's Internet Protocol address.

Under the Communications Act 2003 section 3, the Office of Communications, or Ofcom, has duties to further citizens' interests in communications, and consumers' interests "by promoting competition", and secure "optimal use for wireless telegraphy of the electro-magnetic spectrum", make electronic communications, TV, radio, and plurality of media widely available.[257] It is also subject to directions by the Secretary of State.[258] Under the Wireless Telegraphy Act 2006 section 2 another one of Ofcom's main duties is to publish a "UK Plan for Frequency Authorisation", for how wireless telegraphy frequencies are allocated,[259] and should reflect current and future demand, promote efficient use, innovation and competition. While there is no longer a licence required for merely setting up a telecommunications company,[260] and local authorities may set up public electronic communications networks (such as free public wifi),[261] establishing wireless telegraphy apparatus (except for TV receivers, and other groups exempt) without a licence from Ofcom is prohibited, which can be subject to any terms Ofcom thinks fit.[262] Practically, the prices that telecommunications companies charge are one of the most important factors on which Ofcom can set conditions. First, considerable revenue is raised by setting licence prices. In EE Ltd v Office of Communications the Secretary of State issued a direction to Ofcom to charge full market value for its annual licence fee in the 900MHz and 1800MHz frequencies and conduct an auction. However, the company EE Ltd successfully claimed that in doing so, Ofcom failed to consider all its duties on promoting competition, being objective, transparent and proportionate before following the Secretary of State's direction, and would have to decide again.[263] Ofcom can also cap prices where a provider has "significant market power" so that competition is unlikely to work alone in the public interest.[264] In Telefonica O2 UK Ltd v British Telecommunications plc the Supreme Court held that Ofcom improperly exercised its discretion in rejecting price rises by BT in its "Standard Interconnect Agreement" for mobile operators to use its networks, because Ofcom did not adequately show that price changes damaged the consumer interest.[265]

Ofcom, with headquarters at Southwark Bridge, licenses the electromagnetic spectrum, and the operation of most communication firms. EE, O2, Vodafone, and 3 dominate mobile phones, and BT, Sky, Virgin and TalkTalk dominate broadband.[266]

Though Ofcom can control prices, it also has a duty to make companies compete. The Enterprise Act 2002 section 131 enables Ofcom to make references to the Competition Commission if it suspects "features of a market... distorts competition in connection with the supply or acquisition" of communication products". This mirrors standards in EU law, particularly from TFEU article 102 on dominant undertakings abusing their position. Ultimately the Competition Commission has power to break up companies, subject to appeal to the Competition Appeal Tribunal and the courts. With this in mind, under section 154 Ofcom can also accept undertakings from firms to change their business. This occurred in 2005, when BT gave an undertaking to separate its network, now called Openreach, from its wholesale and retail services, and provide other companies equal access to its own.[267] Equal treatment can also be enforced by the European Commission. In France Telecom SA v Commission the Commission found that France Telecom's subsidiary "Wanadoo Interactive" was engaging in predatory pricing (setting prices deliberately low, sustained by France Telecom's other divisions) to drive out competitors. The Court of Justice rejected there was any need to show that France Telecom would later be able to make up or "recoup" its losses if it was shown that Wanadoo's prices were below average "variable costs".[268] In Deutsche Telekom AG v Commission the Commission also found Deutsche Telekom had abused its dominant position by charging competitors so much in wholesale prices for its "local loop" network (the circuits connecting fixed telephones to main distribution frames) that others could not credibly compete with Deutsche Telekom in its retail prices. The Court of Justice held that Deutsche Telekom has "squeezed the margins" (between wholesale and retail) of its competitors enough to be an abuse, and once those figures were proven, it was unnecessary to engage in some detailed economic analysis of competition's effects.[269] Similarly in Telefónica SA v Commission the Court of Justice upheld a €151m fine on Spain's Telefonica for abuse by imposing unfair prices on competitors to access its ADSL broadband fixed telephone network. This had squeezed competitors' margins, and so distorted competition. The test is whether a hypothetical competitor working as efficiently as the incumbent could compete.[270] In the UK, TalkTalk Telecom Group Plc v Ofcom held that Ofcom imposing charge controls on BT under the Communications Act 2003 section 86 was legitimate, as BT had over 70 per cent of the local exchange market. The Court of Appeal held that, even though TalkTalk was expanding its local exchange network as Ofcom made its finding that BT had "significant market power" so long as there was no material change that falsified Ofcom's original finding, the price controls could remain.[271] However, in Vodafone Ltd v British Telecommunications Plc, the Court of Appeal held that if price controls (capping and reducing Vodafone's charges for wholesale mobile calls for four years) were appealed, the Competition Appeal Tribunal had no power to instruct Ofcom about replacement prices: Ofcom's decision if void, would have to be made again.[272] As well as competition and price controls, consumers have basic rights under the Universal Service Directive 2002,[273] and the Communications Act 2003. For example, Ofcom requires that people should be able to keep their telephone numbers even if they transfer between companies to enable people to switch competitors easily.[274] Practically important across the EU, the Roaming Regulation 2012 required reduction and elimination of charges for phone calls and text messages when abroad by June 2017.[275] In R (Vodafone Ltd) v SS for Business, Enterprise and Regulatory Reform, Vodafone attempted to argue this was unlawful under (what is now) the TFEU because it was "disproportionate" and compromised "subsidiarity". The CJEU Grand Chamber rejected the claim, as it was based on objective criteria, and encouraged competition among networks for quality.[276]

Broadcast and web
  • White Paper on Broadcasting Policy (1946) Cmd 6852
  • Royal Charter of the BBC (2016) Cm 9365, arts 3, 6, 10, 21-29, 35 (objects, board, staff consultation)
  • Communications Act 2003 ss 348-357 and Sch 14 (media ownership restrictions)
  • Wikimedia. Wikipedia, WP:Administration. WP:Sock puppetry. WP:No personal attacks. WP:Neutral.
  • Facebook, Statement of Rights and Responsibilities (2015) cf 2009-2012 ‘system of governance’. 10-K filing
  • Youtube, Terms of Service (9 Jun 2010). Alphabet Inc (i.e. Google), Bylaws and Certificate (2015). 10-K filing
  • Twitter, Terms of Service, Rules, and Privacy Policy (30 Sep 2016). 10-K filing
Post

Marketplaces and industry[edit]

Marketplaces
Industry and manufacturing

Public safety[edit]

Military
Police
Prisons
Fire

Social insurance and care[edit]

Pensions
Unemployment insurance
Social care

Housing and construction[edit]

Environment and waste[edit]

Land management
Air
Waste

Theory[edit]

See also[edit]

Notes[edit]

  1. ^ "UK 2016 Budget" (PDF). p. 5. 
  2. ^ UDHR 1948 art 26. See also European Social Charter 1961 arts 7, 10 and 17 and ECHR 1950 Protocol 1, article 2 and the Belgian Linguistic case (No 2) (1968) 1 EHRR 252. CFREU 2000 art 14.
  3. ^ e.g. L Dearden, E Fitzsimons and G Wyness, 'The Impact of Tuition Fees and Support on University Participation in the UK' (2011) IFS Working Papers W11/17
  4. ^ See D Farrington and D Palfreyman, The Law of Higher Education (2nd edn 2012) chs 4-5, and ch 12
  5. ^ In 2016, the University of Cambridge had combined endowments of £6.25bn, the University of Oxford £5bn, the University of Edinburgh £342m, the University of Manchester £196m and King's College, London £194. By contrast, the two largest US endowment funds are Harvard $34bn and Yale $25bn.
  6. ^ Further and Higher Education Act 1992 ss 62-69
  7. ^ HERA 2017 s 1 ff
  8. ^ HERA 2017 s 92 renames the umbrella body "UK Research and Innovate" and add "Innovate UK" and "Research England".
  9. ^ Education Act 1962 s 1
  10. ^ See Committee on Higher Education, Higher education: report of the Committee appointed by the Prime Minister under the Chairmanship of Lord Robbins 1961–63 (23 September 1963) Cmnd 2154
  11. ^ The National Committee of Inquiry into Higher Education, Higher Education in the learning society: Main Report (1997) 18.24
  12. ^ Browne Review, Independent Review of Higher Education Funding and Student Finance (2010)
  13. ^ Higher Education (Higher Amount) (England) Regulations 2016 reg 6, limiting undergraduate fees
  14. ^ Higher Education (Amounts) (Wales) Regulations 2015 reg 3
  15. ^ e.g. Commission v Austria (2005) C-147/03
  16. ^ Scotland Act 1998 ss 28-29 and Sch 6 leaves higher education fees as a devolved matter.
  17. ^ cf Brown v Secretary of State for Scotland (1988) Case 197/86
  18. ^ Higher Education Act 2004 ss 23-24 (SS sets fees up to a 'higher amount') and 31-34 (Director of Fair Access requires fee charging university plans).
  19. ^ cf R (Bidar) v London Borough of Ealing (2005) C-209/03
  20. ^ The counter-argument is that abolishing fees would "be regressive, benefiting the richest graduates", although it is unclear how, with appropriate tax policy, this is true: R Adams, 'Poorest students will finish university with £57,000 debt, says IFS' (5 July 2017) Guardian
  21. ^ King's College London Act 1997 s 15 requires 13 elected members, but an "appointed day" under s 3 has not yet been made.
  22. ^ Oxford University Commission, Report of Her Majesty’s Commissioners appointed to inquire into State, Discipline, Studies and Revenues of University and Colleges of Oxford (1852) 8. See Oxford University Act 1854 ss 16 and 21, cf Statute IV and VI, Council Regulations 13 of 2002, regs 4-10. Discussed in E McGaughey, 'Votes at Work in Britain: Shareholder Monopolisation and the ‘Single Channel’ (2017) Industrial Law Journal.
  23. ^ ss 5 and 12
  24. ^ See Statute A, chs I-IV, and ch IV(2) on voting rights.
  25. ^ London School of Economics, Memorandum and Articles of Association (2006) art 10.5 required a 25 member Council of 14 lay governors, 6 elected academic governors, 3 ex-officio governors, and 2 student governors. However, in 2014, the composition was altered, to be set "by the Court" of the university. This is a large, mostly self-perpetuating body of lay members.
  26. ^ cf King's College, London, The Charter and Statutes, The Statutes, art 1, "Membership of the Council" requires a 21 member board, 12 lay, 8 staff, 1 student, but appears to make no provision for elections by staff.
  27. ^ See D Farrington and D Palfreyman, The Law of Higher Education (2nd edn 2012) ch 5
  28. ^ Education Reform Act 1988 ss 124A, 128, Schs 7 and 7A, para 3 (on constitutions by Privy Council)
  29. ^ See D Farrington and D Palfreyman, The Law of Higher Education (2nd edn 2012) ch 5
  30. ^ e.g. R (Evans) v University of Cambridge [1998] Ed CR 151, [1998] ELR 515, Sedley J allowing a claim for Dr Evans to challenge not being promoted to reader on grounds of a hostile faculty member taking part in a review. R (Persaud) v University of Cambridge [2001] EWCA Civ 534, judicial review allowed for astronomy PhD candidate being failed after it was shown that the process was unfair.
  31. ^ [2000] EWCA Civ 129
  32. ^ [2000] EWCA Civ 129, [17] and [30]-[35]
  33. ^ e.g. Gajree v Open University [2006] EWCA Civ 831 holding there was no reasonable prospect of success for a paper getting 38% and failing. Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) claimed an LPC had no guidance on taking exams, or giving feedback. The High Court held the claimant was ‘ready to blame anyone but herself for her misfortunes’. cf Siddiqui v University of Oxford [2016] EWHC 3150 (QB) allowing a claim to go to trial.
  34. ^ [2010] EWCA Civ 121
  35. ^ EA 2010 ss 90-94, 98-99, 116. Historically, see the Universities Tests Act 1871 requiring non-conformist (i.e. non-Anglican) entry to university.
  36. ^ HEA 2004 ss 11-21
  37. ^ UDHR 1948 art 25. See also European Social Charter 1961 Part I, art 11, states "Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable." ICESCR 1966 art 12(1) acknowledges "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." CFREU 2000 art 35 requires a "right to benefit from medical treatment" under national law and a "high level of human health protection". ECHR 1950 arts 2, 3 and 8 (right to life, no torture, private and family life) set only the most minimum standards, although exceptions to most rights refer to protection of health.
  38. ^ See S Fredman, 'New horizons: incorporating socio-economic rights in a British Bill of Rights' [2010] Public Law 297, 299, citing Ministry of Justice, Rights and Responsibilities: Developing our Constitutional Framework (2009) Cm 7577, para 1.11 (ranking the NHS as a landmark next to the Magna Carta) and Joseph Rowntree Memorial Trust, State of the Nation 2006 (2006) finding an ICM poll 88% of people said the right to NHS hospital treatment in a reasonable time should be in any future Bill of Rights, compared to 89% who wanted to include the right to a fair trial before a jury.
  39. ^ e.g. P Armstrong, 'Socialized healthcare: The 'untouchable' of UK politics' (5 May 2010) http://edition.cnn.com/2010/WORLD/europe/04/23/britain.nhs/index.html CNN]. British Future, State of the Nation (2013) 16-18 and 26 polling 2,515 people in 2012. See further, 'Public satisfaction with the NHS' (2016) www.kingsfund.org.uk
  40. ^ See OECD, Health Expenditure and Financing (2017) at stats.oecd.org
  41. ^ Between 2012 to 2013, from 8.5% to 9.9% of GDP, or US$3069.7 per capita to US$3613.1, calculated by the OECD at 2010 prices: stats.oecd.org
  42. ^ n.b. The first Minister for Health, Aneurin Bevan from the Labour Party leadership over introduction of charges for dental and optical services.
  43. ^ See 'NHS prescription charges from April 2017' (16 March 2017). See also, 'NHS Prescription Charges' (2012) politics.co.uk
  44. ^ Department of Health, NHS Constitution for England (27 July 2015) art 1(2)
  45. ^ Social Insurance and Allied Services (1942) Cmd 6404, ch 1, 11, "Medical treatment covering all requirements will be provided for all citizens by a national health service organised under the health departments..."
  46. ^ BB Gilbert, 'The British National Insurance Act of 1911 and the Commercial Insurance Lobby' (1965) 4(2) Journal of British Studies 127
  47. ^ Established by the Gesetz betreffend die Krankenversicherung der Arbeiter vom 15. Juni 1883, and now regulated by the Sozialgesetzbuch
  48. ^ Regulated by the Public Health Service Act of 1944, Patient Protection and Affordable Care Act of 2010, held constitutional in National Federation of Independent Business v Sebelius 567 US 519 (2012)
  49. ^ See OECD, Health Spending and [Health Statistics].
  50. ^ NHS Constitution for England (2015) arts 3a (on patient rights and involvement) and 4a (on staff rights and engagement)
  51. ^ National Health Service Act 1946 ss 11-14 and Sch 3 (regional hospital boards), ss 19-52 and Schs 4-5 (local health authorities and executive councils).
  52. ^ NHS Act 1946 s 19 and Sch 5
  53. ^ e.g. Democracy in the National Health Service (21 May 1974) C(74)49 remarking how despite some advantages in "the separation of functions" between management, staff and oversight by patients, "total separation is to challenge in a fundamental way the essence of democratic control". It sought "real devolution to those operating the service".
  54. ^ NHSA 2006 ss 40-42
  55. ^ Sch 7, paras 3(1)(b), 9
  56. ^ Sch 7, para 3
  57. ^ HSCA 2012 ss 9-10 and ss 33-34
  58. ^ NHSA 2006 s 1H referring to the "NHS Commissioning Board", which is branded as NHS England, inserted by HSCA 2012 s 9.
  59. ^ NHSA 2006 s 1I and Sch 1A paras 10 and 13(1) "A clinical commissioning group may pay members of its governing body such remuneration and travelling or other allowances as it considers appropriate." Inserted by HSCA 2012 s 10 and Sch 2, para 1.
  60. ^ National Health Service (Clinical Commissioning Groups) Regulations 2012 regs 11-12
  61. ^ HSCA 2012 s 75
  62. ^ See NHSA 2006 s 44(6), after amendments by HSCA 2012 s 165. E Jackson (2016) 44, quoting King’s Fund, says the HSCA 2012 has not privatised the NHS but fragmenting structures will "have been profoundly damaging". It "seems likely that the massive organisational changes.... contributed to widespread financial distress and failure to hit key targets for patient care..."
  63. ^ NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 regs 3-6
  64. ^ NHSA 2006 ss 14U and 14Z2 inserted by HSCA 2012 s 26
  65. ^ Between 2012 to 2013, from 8.5% to 9.9% of GDP, or US$3069.7 per capita to US$3613.1, calculated by the OECD at 2010 prices: stats.oecd.org
  66. ^ NHSA 2006 ss 1A-C and 3 (service provision)
  67. ^ [1995] EWCA Civ 43
  68. ^ Doctors had to ‘do more than toll the bell of tight resources. They must explain the priorities that have led them to decline to fund the treatment.’
  69. ^ "Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this Authority can be fairly criticised for not advancing before the court."
  70. ^ See P Toynbee, 'Jaymee and final choices: The story behind the story' (22 May 1996) Independent
  71. ^ [1999] EWCA Civ 1871
  72. ^ [2006] EWCA Civ 392
  73. ^ NHSA 2006 s 6BB, following from TFEU art 57 and the Patients’ Rights Directive 2011 (2011/24/EU). This is summarised in the Department of Health, NHS Constitution for England (27 July 2015) arts 3a(iv) ‘in certain circumstances, to go to other European Economic Area countries or Switzerland’ for services available on the NHS.
  74. ^ (2006) C-372/04. See also Geraets-Smits v Stichting Ziekenfonds; Peerbooms v Stichting CZ Groep Zorgverzekeringen (2001) C-157/99
  75. ^ National Health Service Act 2006 ss 175
  76. ^ National Health Service (Charges to Overseas Visitors) Regulations 2015 regs 3-9 (charges cannot be made for emergency treatment).
  77. ^ [2008] ECHR 453. Contrast D v United Kingdom (1997) 24 EHRR 423, where deportation was delayed due to the patient's imminent death.
  78. ^ See EP Ellinger, E Lomnicka and CVM Hare, Ellinger's Modern Law of Banking (2011) chs 1-2 and 5
  79. ^ Debt capital finance contrasts with equity capital finance, where an investor buys shares, invariably with voting rights, in a company. Debt finance usually keeps the borrower in control of their business, subject to any restrictive covenants and the need to repay the debt.
  80. ^ 5 & 6 Will & Mar c 20. The Bank of England Act 1716 widened its borrowing power. The Bank Restriction Act 1797 removed a requirement to convert notes to gold on demand. The Bank Charter Act 1844 gave the bank sole rights to issue notes and coins.
  81. ^ EP Ellinger, E Lomnicka and CVM Hare, Ellinger’s Modern Banking Law (5th edn 2011) ch 2, 30
  82. ^ So, if the Bank of England raised its interest rate for Barings Bank's account with it, Barings would probably try to raise its interest rates for customers with Barings Bank accounts (unless competition was very tight, in which case its profits would have to be reduced).
  83. ^ See W Bagehot, Lombard Street: A Description of the Money Market (1873) discussing Overend, Gurney and Co
  84. ^ By contrast the US Federal Reserve Act of 1913, 12 USC §241, requires that on advice and consent of the Senate, appointments by the President ‘shall have due regard to a fair representation of the financial, agricultural, industrial and commercial interests, and geographical divisions of the country.’ Under §302, in the Federal Reserve system of constituent banks, three are chosen by and to represent stockholding banks, six others, represent the public and elected to represent stakeholders. In the EU, TFEU art 283(2), states the European Central Bank's Executive Board (a president, vice president and four members) are appointed by the European Council by qualified majority, after consulting the European Parliament and the Governing Council of the ECB. The Governing Council is itself the Executive Board plus governors of the national central banks using the euro. The term is 8 years, non-renewable, and they can only be removed for gross misconduct after review by the CJEU: ECB Statute arts 10-11.
  85. ^ See 'Court of Directors' on bankofengland.co.uk
  86. ^ BEA 1998 s 1A allows the Treasury to add directors, or reduce the number of directors, after consultation, with some limitations.
  87. ^ BEA 1998 Sch 1, paras 1-2
  88. ^ BEA 1998 Sch 1, paras 7-8
  89. ^ BEA 1998 Sch 1, paras 14
  90. ^ In the US, the Federal Reserve Act of 1913, 12 USC §225 states ‘The Board of Governors of the Federal Reserve System and the Federal Open Market Committee shall maintain long run growth of the monetary and credit aggregates commensurate with the economy’s long run potential to increase production, so as to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates.’ Under TFEU art 9, and see also 127 and 119-150 the EU should aim at a "high level of employment". By contrast TEU art 3(3) says it should be ‘aiming at full employment’. See M Roth, ‘Employment as a Goal of Monetary Policy of the European Central Bank’ (2015) ssrn.com.
  91. ^ R Cranston, Principles of Banking Law (2002) 121-122
  92. ^ In the EU, TFEU art 123 contains a prohibition on the European Central Bank lending money to governments, but in Gauweiler v Deutsche Bundestag (2015) C-62/14 the CJEU approved the use of outright monetary transactions to buy Greek government debt on secondary markets (to support the euro) was lawful.
  93. ^ Cranston (2002) 121, ‘This will typically, in turn, produce a change in the base rates of the banks.’
  94. ^ BEA 1946 s 4(3). No order has been issued, but banks generally comply with the Bank of England's suggested reserve ratios. Cranston (2002) 121, ‘The size of the reserves clearly determines the volume of money in circulation and the extent to which a bank can itself extend credit to its customers.’
  95. ^ See Monetary Control (1980) Cmnd 7858.
  96. ^ BEA 1998 s 19
  97. ^ Companies (Model Articles) Regulations 2008, Sch 3, para 20 and UK Corporate Governance Code 2016 section B
  98. ^ Companies Act 2006 ss 168-9
  99. ^ Companies (Model Articles) Regulations 2008, Sch 3, para 23 and UK Corporate Governance Code 2016 section D
  100. ^ UK Corporate Governance Code 2016, section E
  101. ^ See E McGaughey, 'Does corporate governance exclude the ultimate investor?' (2016) Journal of Corporate Law Studies
  102. ^ Companies Act 2006 ss 170-77, 260-263
  103. ^ Before FSMA 2000 ss 19-23 and 418-9, the Banking Act 1979 introduced the formal authorisation requirements.
  104. ^ See also Credit Institutions Directive 2013/36/EU arts 8-14
  105. ^ 2013/36/EU arts 88-96
  106. ^ Credit Institutions Directive 2013 (2013/36/EU art 95, "If employee representation... is provided for by national law, the remuneration committee shall include one or more employee representatives."
  107. ^ See Office of Fair Trading v Abbey National plc [2009] UKSC 6 and Director General of Fair Trading v First National Bank plc [2001] UKHL 52
  108. ^ (1848) 2 HLC 28
  109. ^ Vincent v Trustee Savings Banks Central Board [1986] 1 WLR 1077, denying that the Trustee Savings Bank customers were, despite the name of the bank, in any trustee-beneficiary relation, either at common law or under statute. The customers, apparently, only had contractual rights.
  110. ^ See the Safety Deposit Current Accounts Bill 2008 cls 1-2, proposing a proprietary saving account option.
  111. ^ Banking Act of 1933
  112. ^ Financial Services and Markets Act 2000 ss 214-215
  113. ^ See the Deposit Guarantee Directive 2014/49/EU
  114. ^ See Banking Act 2009 ss 1, 7-13
  115. ^ (EU) No 575/2013, arts 114-134
  116. ^ The relevant historical bodies were the Coal Commission from 1933, the National Coal Board, and then British Coal. See also, Atomic Energy Act 1946, Pt III, which provides an unused framework for uranium extraction. Uranium deposits exist in Scotland, but not in large quantities, and given opposition to nuclear mining and weaponry, imports from Australia and elsewhere have been preferred.
  117. ^ DBEIS, Digest of UK Energy Statistics (2016) ch 1
  118. ^ The Coal Industry Nationalisation Act 1946 brought coal under government ownership, 27 years after the recommendations (albeit divided) of the Coal Industry Commission Act 1919. See Scottish Insurance Corp Ltd v Wilsons & Clyde Coal Co Ltd [1949] AC 462. The Petroleum and Submarine Pipe-lines Act 1975 set up the British National Oil Corporation as a public competitor to the private sector, but was privatised by the following government.
  119. ^ cf MM Roggenkamp, C Redgwell, A Rønne, and I Guayo (eds), Energy law in Europe: national, EU and international regulation (2016) ch 14, 1058
  120. ^ [2010] UKSC 35, [2011] 1 AC 380, Lord Hope and Lord Clarke dissenting.
  121. ^ Previously BP Petroleum Developments Ltd v Ryder [1987] 2 EGLR 233 had held that statutory provisions did not enable compensation by reference to the value of oil deposits.
  122. ^ See the Petroleum (Production) Act 1918, Petroleum (Production) Act 1934 s 1, Petroleum Act 1998 s 3
  123. ^ EA 2016 s 2 and Sch 1 transferred functions previously exercised by the relevant Secretary of State or Minister, particularly the PA 1998 s 3 power to licence.
  124. ^ It is not clear how this fits with the goals for preventing climate damage, in the Climate Change Act 2008 s 1
  125. ^ EA 2016 s 9
  126. ^ EA 2016 ss 12-13
  127. ^ Based on the Hydrocarbons Directive 94/22/EC arts 2-6
  128. ^ SI 2008/225 clauses 4-7, 16-17, 41-42, 43 and 23 or 45
  129. ^ See Environmental Permitting (England and Wales) Regulations 2010 and Water Resources Act 1991
  130. ^ See E Albrecht and D Schneemann, ‘Fracking in the United Kingdom: Regulatory Challenges between Resource Mobilisation and Environmental Protection’ [2014] CCLR 238. The DBEIS consults with the Environment Agency, Health and Safety Executive and the Health and Protection Agency.
  131. ^ [2014] EWHC 4108 (Admin), [128]
  132. ^ Finance Act 2016 s 140(1)
  133. ^ Corporation Tax Act 2010 s 330. This did go up to 20% in 2006, but was since reduced.
  134. ^ e.g. 'Taxpayers may be liable for North Sea decommissioning bill, says study' (21 November 2016) BBC News
  135. ^ CCA 2008 ss 1-2. This is reflected in the Renewable Energy Directive 2009 art 3 and Annex I
  136. ^ DBEIS, Digest of UK Energy Statistics (2016) ch 1
  137. ^ There are 9 plants left, but all are converting to biomass or closing by 2025. However, Open-pit coal mining in the United Kingdom still runs.
  138. ^ DBEIS, Digest of UK Energy Statistics (2016) ch 5
  139. ^ See DBEIS, Digest of UK Energy Statistics (2016) ch 6. The UN rules and the Renewable Energy Directive 2009 art 17 and Annex V enable "biomass" and "biofuel" to count toward reducing greenhouse gases, even though burning wood produces carbon emissions, on the theory that plants (unlike coal or gas) absorb carbon while they grow supposedly neutralising emissions once they burn. This logic is criticised for not accounting for the environmental damage of deforestation, and the impact of short-term emissions, regardless of the "sustainability" criteria in art 17. M Le Page, ‘The Great Carbon Scam’ (21 September 2016) 231 New Scientist 20–21
  140. ^ EA 2013 ss 1-4, stating targets must begin with a carbon budget including the year 2030.
  141. ^ EA 2013 ss 131-138
  142. ^ Inserted by EA 2008 ss ss 37-40, originally introduced by the Utilities Act 2000 ss 62-67. Known as a "renewable portfolio standard" in the US.
  143. ^ See the Renewables Obligation Closure Order 2014 and Renewables Obligation Closure (Amendment) Order 2015 art 2, made under Electricity Act 1989 ss 32K-L
  144. ^ [2016] EWCA Civ 117
  145. ^ Planning our electric future: a White Paper for secure, affordable and low‑carbon electricity (2011) Cm 8099, 148-150
  146. ^ EA 2008 ss 41-43 on the feed-in tariffs.
  147. ^ Reduction in the rates was successfully challenged in Breyer Group Plc v Department of Energy and Climate Change [2015] EWCA Civ 408 and SS for Energy and Climate Change v Friends of the Earth [2012] EWCA Civ 28
  148. ^ (2001) C-379/98
  149. ^ See also the Opinion of AG Jacobs, "If the argument of the Commission and PreussenElektra were to be accepted then all sums which one person owes another by virtue of a given law would have to be considered to be State resources. That seems an impossibly wide understanding of the notion."
  150. ^ A Vaughan, 'Publicly owned energy minnows take on big six in troubled UK market' (27 October 2017) Guardian
  151. ^ TFEU art 345
  152. ^ TFEU art 63
  153. ^ M Florio, ‘The Return of Public Enterprise’ (2014) Working Paper N. 01/2014
  154. ^ Gemeindeordnung Nordrhein-Westfalen 1994 §§107-113, translatable to English with deepl.com or google translate
  155. ^ The technical name is the Gas and Electricity Markets Authority (GEMA), but the older name is preferred.
  156. ^ Utilities Act 2000 Sch 1, para 2A
  157. ^ Utilities Act 2000 ss 1, 5 and Sch 1, paras 1-3
  158. ^ EA 1989 s 4
  159. ^ UA 2000 s 68
  160. ^ See R (Scottish Power) v Director General of Electricity Supply [1997] CLY 4949, quashing a decision of the DG that refused to modify licence conditions.
  161. ^ EA 1989 s 5 and Electricity (Class Exemptions from the Requirement for a Licence) Order 2001
  162. ^ Finn-Kelcey v Milton Keynes BC [2008] EWCA Civ 1067, on the three month period to make a challenge.
  163. ^ [2015] UKSC 74
  164. ^ [2016] EWCA Civ 84
  165. ^ "Renewable sources of energy" (PDF). 
  166. ^ Utilities Act 2000 ss 9 and 13 revising Electricity Act 1989 s 3A and Gas Act 1986 s 4AA
  167. ^ EA 1989 s 44, Ofgem can ‘direct that the maximum prices at which electricity supplied by authorised suppliers may be resold’.
  168. ^ J Meek, ‘How we happened to sell off our electricity’ (2012) 34(17) London Review of Books 3
  169. ^ GEMA, Standard conditions of electricity supply licence (2018)
  170. ^ 'Cold homes caused 9,000 deaths last winter, study suggests' (21 March 2016) BBC and ONS, Excess winter mortality in England and Wales: 2016 to 2017 (provisional) and 2015 to 2016 (final) (22 December 2017)
  171. ^ Gas Act 1986 ss 3, 4AA, 34 (regulatory objectives) and 5-11, 19 and 23-23G (gas licensing, consuemers, modification of conditions and appeal)
  172. ^ Nuclear Installations Act 1965 ss 1, 65-87 (nuclear licensing). There are just 8 remaining UK nuclear plants, 4 due to close between 2023-4, and 4 between 2028-35, all run by the French state owned EDF Energy. However Hinkley Point C nuclear power station is being built for £20.3bn by 2025, to be paid over a 35 year period. See H Watt (21 December 2017) Guardian. See also R Harrabin, 'Offshore wind power cheaper than new nuclear' (11 September 2017) BBC, with two firms promising to build wind turbines for £57.50 per megawatt hour for 2022-23, while Hinkley's costs mean £92.50 per megawatt hour.
  173. ^ Foster v British Gas plc (1990) C-188/89, [1991] 2 AC 306 (on nature of a public service)
  174. ^ Insolvency Act 1986 ss 72C-D and Sch 2A, para 10
  175. ^ See Ofgem, Supplier of Last Resort: Revised Guidance (2008)
  176. ^ Energy Act 2011 ss 94-102
  177. ^ UDHR 1948 art 25(1) and ICESCR 1966 art 11(1), which is ratified by the UK, both expressly protect the right to food, in which water is implicit. This was acknowledged by the UN Committee on Economic, Social and Cultural Rights (2002) General Comment No 15.
  178. ^ S Hendry, Frameworks for Water Law Reform (2014) ch 5, 86 and C Harlow and R Rawlings, Law and Administration (3rd edn 2009) ch 7, 292-304
  179. ^ J Getzler, A History of Water Rights at Common Law (2004) 328-352
  180. ^ E Porter, Water Management in England and Wales (1978) 29
  181. ^ e.g. Water (Scotland) Act 1980 (c 45)
  182. ^ Water Act 1989 ss 4, 83-85 were the initial privatisation provisions. See C Harlow and R Rawlings, Law and Administration (3rd edn 2009) ch 7, 293-295.
  183. ^ e.g. 'Water costs cheaper in Scotland' (19 February 2009) BBC
  184. ^ S Hendry, Frameworks for Water Law Reform (2014) ch 5, 78, quoting P Marin, Public private partnerships for urban water utilities: A review of experiences in developing countries (2009) finding 7% of companies were privatised, and suggesting even if this is too low, 15% would be a "generous estimate".
  185. ^ D Hall, E Lobina and P Terhorst, 'Re-municipalisation in the early twenty-first century: water in France and energy in Germany' (2013) 27(2) International Review of Applied Economics 193 and J Meek, ‘Not a drop to drink’ in Private Island: Why Britain Belongs to Someone Else (2014) ch 3
  186. ^ See 'Water costs cheaper in Scotland' (19 February 2009) BBC. D Hall, E Lobina and P Terhorst, 'Re-municipalisation in the early twenty-first century: water in France and energy in Germany' (2013) 27(2) International Review of Applied Economics 193 and J Meek, ‘Not a drop to drink’ in Private Island: Why Britain Belongs to Someone Else (2014) ch 3
  187. ^ Water Industry (Scotland) Act 2002, constitutes Scottish Water. Sch 3 requires an 8-13 member board appointed by the Scottish Ministers as experts. The Water (Scotland) Act 1980, contains duties and functions. The Sewerage (Scotland) Act 1968 deals with sewage.
  188. ^ Water Industry (Scotland) Act 2002 s 1
  189. ^ There is, however, a "Customer Forum" without any binding rights, but which may have some useful input: see S Hendry, Frameworks for Water Law Reform (2014) ch 5, 95, fn 282
  190. ^ See Griffin v South West Water Services [1995] IRLR 15 and Fish Legal v Information Commissioner, United Utilities, Yorkshire Water and Southern Water (2014) C-279/12
  191. ^ Water Industry Act 1991 s 1A and Sch 1A, para 1. This was amended by the Water Act 2003
  192. ^ Water Industry Act 1991 s 2
  193. ^ cf Water Industry (Scotland) Act 2002 s 1, requiring "promoting the interests of customers".
  194. ^ WIA 1991 s 11. The Water Act 2003 s 52 gives Ofwat a duty to cooperate with the Secretary of State, the National Assembly for Wales, the Environment Agency, and the Natural Resources Body for Wales.
  195. ^ e.g. R Graham, 'Water in the UK - public versus private' (19 December 2014) openDemocracy
  196. ^ WIA 1991 ss 66A-L. Slightly different, WIA 1991 ss 105A-C enables transfer of lateral drains and private sewers to water companies where they were draining to a public mains sewer and treatment works, to avoid deterioration. Water Industry (Schemes for Adoption of Private Sewers) Regulations SI 2011/1566.
  197. ^ S Hendry, Frameworks for Water Law Reform (2014) ch 5, 81
  198. ^ WIA 1991 ss 11-12, price determinations and conditions set in Instruments of Appointment, Condition B, each 5 years.
  199. ^ WIA 1991 ss 142-150
  200. ^ WIA 1991 ss 192A-B, 201-202
  201. ^ Ofwat and the CMA also have jurisdiction for mergers for companies with a size over £10m p/a: WIA 1991 ss 31-35.
  202. ^ See R (Oldham MBC) v Director General of Water Services (1998) 31 HLR 224 finding automatic disconnection from water through a prepayment meter did not comply with the law. R (Lancashire CC) v Director of Water Services [1999] EnvLR 114, stopped disconnections or limiting devices. The Water Industry Act 1999 stopped arbitrary disconnections.
  203. ^ ater Industry (Charges) (Vulnerable Groups) Regulations SI 1999/3441 and Floods and Water Act 2010 s 44. This does not mean that company profits' are reduced by vulnerable customers, as companies can raise prices for other customers to ensure their profits are not reduced.
  204. ^ WIA 1991 ss 37, 45 (water) and 94-99 (sewers).
  205. ^ Drinking Water Quality Directive 98/83/EC art 4, meaning water is free from any micro-organisms and parasites dangerous to health, and complies with chemical and biological standards listed in Annex I. This is implemented by the Water Supply (Water Quality) Regulations 1989 SI 1989/1147. In McColl v Strathclyde RC]] 1983 SC 225 water fluoridation was successfully challenged.
  206. ^ Commission v United Kingdom (1992) C-337/89, on the failure to transpose the Directive. The UK system under WIA 1991 s 19 of accepting undertakings from water companies (instead of s 18 enforcement orders) was not an adequate legal framework to comply with EU law. Contrast Commission v Spain (2003) C-278/01 on bathing water quality, where the CJEU confirmed fines of a €624,150 per year and per 1% of bathing areas in Spanish inshore waters which were found not to conform to the Bathing Waters Directive 2006/7/EC.
  207. ^ WIA 1991 s 86
  208. ^ Water Supply and Sewerage Services (Customer Service Standards) Regulations 2008 (SI 2008/594) regs 6-12
  209. ^ cf WIA 1991 ss 27A-27K
  210. ^ By William Heath at the time of the Commission on the London Water Supply report, 1828
  211. ^ Department of Transport v North West Water Authority [1984] AC 336
  212. ^ [2003] EWCA Crim 2243
  213. ^ [2003] UKHL 66
  214. ^ [2014] UKSC 40
  215. ^ [1994] 2 AC 264
  216. ^ Water Framework Directive 2000/60/EC recital 53, and see E Fisher, B Lange and E Scotford, Environmental Law Text, Cases, and Materials (2013) ch 14
  217. ^ S Webb and B Webb, English Local Government Vol 5, The story of the king’s highway (1913)
  218. ^ Nationalised entities were still bound by ordinary rules of law: Tamlin v Hannaford [1950] 1 KB 18, holding that the British Transport Commission could not rely on Crown immunity when ejecting a tenant, and was bound to normal obligations.
  219. ^ T de Castella, 'Have train fares gone up or down since British Rail?' (22 January 2013) BBC
  220. ^ See R Holdsworth, 'London Transport Fares 2000-2016' (2016) Londonist, showing a 56% increase in zone 1 to 4 tube fares (with Oyster cards from 2004) under Boris Johnson, while fares were held constant under Ken Livingstone and Sadiq Khan.
  221. ^ Railways and Transport Safety Act 2003 ss 15-16. This renamed "Ofrail" which had existed since 2003, that in turn replaced the Rail Regulator.
  222. ^ Railways and Transport Safety Act 2003 Sch 1, para 2, dismissal possible for absence from meetings for 3 months, financial or personal interest, ‘has misbehaved’ or ‘is unable, unfit or unwilling to perform his functions as a member.’
  223. ^ Railways Act 1993 s 4
  224. ^ Single European Railway Directive 2012/34/EU arts 4 and 7. This followed the First Railway Directive 91/440/EC.
  225. ^ Single European Railway Directive 2012/34/EU art 5-6
  226. ^ See P Ireland, 'Limited liability, shareholder rights and the problem of corporate irresponsibility' (2010) 34 Cambridge Journal of Economics 837, 845-846, "Just one week before the court handed down its decision, Network Rail (the company that replaced Railtrack) and the engineering firm Balfour Beatty had been fined £13.5 million for their part in the Hatfield rail disaster of 2000, where four people died, seventy injured. Hatfield was one of a long series of fatal rail accidents in which Railtrack’s working practices and safety record was implicated (Wolmar, 2001). On this issue the shareholders were silent. At no point had they spoken up, let alone campaigned, about the company’s safety record. They did not, apparently, feel in any way responsible for the behaviour of the company from which they had been drawing dividends and whose management was legally bound to act in their interests. The cases are illustrative of the tendency of shareholders to schizophrenically identify themselves very closely with the companies in which they hold shares for some purposes, while seeing themselves as completely separate from them for others."
  227. ^ [2005] EWHC 2192 (Ch) per Lindsay J.
  228. ^ See L Whitehouse, ‘Railtrack is dead – long live Network Rail?’ Nationalisation under the Third Way’ (2003) 30 JLS 217. The Future of Rail: White Paper (July 2004) Cm 6233. cf R Jupe, ‘Public (interest) or private (gain)? The curious case of Network Rail’s status’ (2007) 34 JLS 24, 252, noting that the former Prime Minister Tony Blair disparaged, ‘the sterile debate between wholesale privatisation and old-style state control.’ See further TUC, Rebuilding Rail (2012) pointing out high CEO pay at Network Rail, and that it was not formally classified by as a public body until 2013.
  229. ^ [2014] UKSC 3.
  230. ^ Single European Railway Directive 2012/34/EU art 10, Conditions of access to railway infrastructure (1) ‘Railway undertakings shall be granted, under equitable, non-discriminatory and transparent conditions, the right to access to the railway infrastructure in all Member States for the purpose of operating all types of rail freight services.’
  231. ^ [2006] EWHC 1942 (Admin)
  232. ^ Railways Act 1993 s 25
  233. ^ Scotland Act 2016 s 57, amending RA 1993 s 25
  234. ^ e.g. Jeremy Corbyn’s nationalisation plans are music to ears of public (1 October 2017) Guardian, 76% support rail nationalisation. Yougov (6 August 2015) finding 58% support and 17% oppose.
  235. ^ See C Wolmar, Down the Tube: The battle for London’s underground (2002) noting that PPP contracts were 28,000 pages long or 2 million words.
  236. ^ The London Regional Transport Act 1984 had abolished the Greater London Council and established London Underground Ltd, controlled by central government.
  237. ^ Greater London Authority Act 1999 ss 41 and 141 (Mayor duties for transport) and ss 210-230 (PPP agreements).
  238. ^ R (Transport for London) v London Regional Transport [2001] EWHC Admin 637, per Sullivan J, "‘Entering into agreements may be wise, as asserted by the Government, LUL and LRT, or it may be foolish, as claimed by the Mayor and... TfL... judgments about the merits, as opposed to the legality of entering into the proposed PPP agreements, must be made by elected politicians and not by judges."
  239. ^ C Millett, 'Metronet failure cost taxpayer upto £410m' (5 June 2009) Contract Journal. See also House of Commons, Transport Committee (January 2008) “The return anticipated by Metronet’s shareholders appears to have been out of all proportion to the level of risk associated with the contract...” “In terms of borrowing, the Metronet contract did nothing more than secure loans, 95% of which were in any case underwritten by the public purse, at an inflated cost...” “Metronet’s inability to operate efficiently or economically proves that the private sector can fail to deliver on a spectacular scale..” See also Re Metronet Rail BCV Ltd [2007] EWHC 2697 (Ch)
  240. ^ Railways Act 1993 s 28(1) ‘A franchise agreement may include provision with respect to the fares to be charged for travel by means of the franchised services.’ Also, s 29(5) ‘subject to any [statutory] requirements a franchise agreement may contain any such provisions as the Franchising Director thinks fit’.
  241. ^ e.g. DataBlog, ‘Rail fares rise: All the available data on British rail revenues’ (17 August 2011) Guardian, fares rising 8% and ticket holders prices rising 13%
  242. ^ Greater London Authority Act 1999 s 174. However, courts have attempted to intervene in the past: Bromley LBC v Greater London Council [1981] UKHL 7 (no deficit spending for fare reductions).
  243. ^ See R Holdsworth, 'London Transport Fares 2000-2016' (2016) Londonist, showing a 56% increase in zone 1 to 4 tube fares (with Oyster cards from 2004) under Boris Johnson, while fares were held constant under Ken Livingstone and Sadiq Khan.
  244. ^ Passenger Rights Regulation 2007 (EC) No 1371/2007 art 3 (bikes), 8-9 (information and tickets), 17 (delays: 25% of the ticket price for a 60-119 min delay, 50% for 120 min or more. Season tickets in accordance with company policy. Threshold claim is €4.)
  245. ^ [1996] CLC 596
  246. ^ RA 2005 ss 19-21 and Schs 5-6
  247. ^ Railways Act 1993 ss 76-78
  248. ^ Railways Act 1993 ss 59-65 and Sch 6
  249. ^ Winsor v Special Railway Administrators of Railtrack Plc [2002] EWCA Civ 955
  250. ^ See Defra and Department for Transport, UK plan for tackling roadside nitrogen dioxide concentrations (July 2017) 7, Figure 3: UK national average NOx roadside concentration apportioned by source of NOx emissions, 2015, showing of Nitrous Oxide emissions, vans and HGVs are 40% of emissions, buses 16%, taxis 2%, cars 43%, and other vehicles 1%, across the UK.
  251. ^ UDHR 1948, arts 18 (thought) and 19, ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ ECHR 1950, art 9 (thought) and 10(1) ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.’ This is subject to limits in art 10(2). CFREU 2000 art 10 (thought) and art 11(1) ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (2) The freedom and pluralism of the media shall be respected.’
  252. ^ UDHR 1948 art 12. See also CFREU 2000 art 7 ‘Everyone has the right to respect for his or her private and family life, home and communications.’ ECHR 1950 art 8(1) ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ See Entick v Carrington [1765] EWHC KB J98
  253. ^ The Telegraph Act 1869 s 4 gave the Postmaster General exclusive privilege of sending messages, with certain exceptions, gave the Postmaster General a monopoly on all telegraph business. In AG v Edison Telephone Company of London (1880) 6 QBD 244, 255, the Telegraph Act 1869 was applied to telephones because ‘absurd consequences would follow if the nature and extent of those powers and duties [under the Act] were made dependent upon the means employed for the purpose of giving the information’. See the National Telephone Company.
  254. ^ British Telecommunications Act 1981, separating BT from the Post Office, and enabling licensing of private companies: the first was Cable & Wireless in 1981.
  255. ^ Telecommunications Act 1984, selling BT shares, and establishing the Director General of Telecommunications to regulate the privatised company, including price fixing. On this strategy, see S Littlechild, Regulation of British Telecommunications Profitability: Report to the Secretary of State (1983)
  256. ^ Electronic Communications Framework Directive 2002 2002/21/EC arts 8-9 (on regulator tasks), Authorisation Directive 2002 2002/20/EC arts 3-7, Access Directive 2002 2002/19/EC arts 3-5 and the Universal Service Directive 2002]] 2002/22/EC arts 3-4 and 9-13 (telephone connection, affordability)
  257. ^ CA 2003 s 3, also mentioning the need to prevent offensive, harmful or unfair material in TV and radio (but not internet). Under [www.legislation.gov.uk/ukpga/2003/21/section/4 s 4], it must comply with EU law.
  258. ^ CA 2003 [www.legislation.gov.uk/ukpga/2003/21/section/5 s 5]
  259. ^ WTA 2006 s 2(3) this must be objectively justifiable, non-discriminatory, proportionate and transparent. Under s 5, the Secretary of State should also consider desirability of technological and infrastructure service neutrality.
  260. ^ CA 2003 s 147
  261. ^ CA 2003 s 148
  262. ^ WTA 2006 ss 8-9
  263. ^ [2017] EWCA Civ 1873
  264. ^ CA 2003 ss 87-88
  265. ^ [2014] UKSC 42
  266. ^ Ofcom, The Communications Market 2016 154, Figure 4.2.1 and Ofcom, Communications Market Report (2017) 147, Figure 4.15
  267. ^ I Walden, Telecommunications Law and Regulation (2012) 120-123
  268. ^ (2009) C-202/07
  269. ^ (2010) C-280/08
  270. ^ (2014) C-295/12
  271. ^ [2013] EWCA Civ 1318
  272. ^ [2010] EWCA Civ 391
  273. ^ 2002/22/EC arts 3-4 and 9-13 (telephone connection, affordable)
  274. ^ CA 203 ss 58-59
  275. ^ Roaming Regulation (EU) No 531/2012 arts 7-8 (this is the successor to 717/2007)
  276. ^ (2010) C-58/08

References[edit]

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  • JR Commons, ‘The Webbs’ Constitution for the Socialist Commonwealth’ (1921) 11(1) American Economic Review 82
  • ACL Davies, ‘This Time, it’s for Real: The Health and Social Care Act 2012’ (2013) 76(3) Modern Law Review 564
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  • T Jenkinson and C Mayer, 'The Costs of Privatization in the UK and France', in M Bishop, J Kay, and C Mayer (eds), Privatization & Economic Performance (OUP) 290–298
  • T Prosser, ‘Public Service Law: Privatization’s Unexpected Offspring’ (2000) 63(4) Law & Contemporary Problems 63
  • WA Robson, ‘The Public Corporation in Britain Today’ (1950) 63(8) Harvard Law Review 1321
  • H Skovgaard-Petersen, ‘There and back again: portability of student loans, grants and fee support in a free movement perspective’ (2013) 38(6) European Law Review 783
Books
  • R Cranston, Principles of Banking Law (2002) chs 3-5
  • EP Ellinger, E Lomnicka and CVM Hare, Ellinger’s Modern Banking Law (5th edn 2011) chs 2 and 5
  • D Farrington and D Palfreyman, The Law of Higher Education (2nd edn 2012) chs 4-5 and 12
  • G Gordon et al, Oil and Gas Law: Current Practice and Emerging Trends (2010) ch 4
  • L Hannah, Electricity before Nationalisation: A Study of the Development of the Electricity Supply Industry to 1948 (1979)
  • E Jackson, Medical Law: Texts, Cases and Materials (4th edn 2016) ch 2
  • A Johnston and G Block, EU Energy Law (2012) ch 7
  • J Montgomery, Health care law (2002) chs 3-4
  • Tony Prosser, The limits of competition law (2004)
  • T Wheelwright, Oil and World Politics: From Rockefeller to the Gulf War (1991)

External links[edit]