Nicholas Dobson discusses public law fairness
- Simple unfairness as such is not a ground for judicial review.
- Substantive unfairness is not a distinct legal criterion.
- Equal treatment is not a distinct principle of UK administrative law.
‘Fair’s fair,’ so they say; and have been doing since at least 1898. For it seems it was then that the phrase first hit the stage in a novel called Castle Inn . But while fair may be fair (connoting reciprocity of fair treatment), where does fairness stand in public law? And does domestic administrative law acknowledge equal treatment as a distinct legal principle?
These knotty issues were up for unravelling by the Supreme Court on 16 May 2018 in R (Gallaher Group Ltd and others) v The Competition and Markets Authority [2018] UKSC 25. Lord Carnwath gave the leading judgment, with which Lords Mance and Hodge agreed. Lords Sumption and Briggs gave concurring decisions.
Summary background
In March 2003, under the Competition Act 1998, the former Office of Fair Trading (OFT) began investigating alleged tobacco industry price-fixing arrangements. In 2010 various parties (including the respondents) were determined
