The Supreme Court has today refused permission for the Secretary of State for Exiting the European Union to appeal against the decision of the Court of Session in Scotland to seek a ruling from the CJEU on the revocability of the Article 50 Notice.

This means that the accelerated preliminary reference will proceed before the CJEU. The oral hearing is next Tuesday, 27 November.

Monckton Chambers’ Gerry Facenna QC and Anneli Howard, together with Scottish counsel Morag Ross QC, are acting for Liberal Democrat Brexit Spokesperson Tom Brake MP, and Labour’s Chris Leslie MP, who argue that EU law permits a Member State unilaterally to revoke a notification it has given under Article 50 TEU if, in accordance with its own constitutional arrangements, it decides to remain within the EU.

See previous news items 08 Oct here and  21 Sept here.

Warwickshire County Council v Halfords Autocentres Ltd [2018] EWHC 3007 (Admin)

The High Court has held that, where a trader acts misleadingly during a test purchase by a local trading standards officer, it breaches consumer protection law, even if the officer is not acting as a consumer within the meaning of the relevant legislation: Warwickshire County Council v Halfords Autocentres Limited and Competition and Markets Authority [2018] EWHC 3007 (Admin).

In February 2017, a trading standards officer employed by Warwickshire County Council booked a vehicle in for a service at the Stratford-upon-Avon branch of Halfords. The vehicle deliberately had a number of faults and the booking was a “test purchase” designed to assess the quality of the service facility offered by Halfords. Without knowing that the customer was in fact a trading standards officer, Halfords purported to service the vehicle and charged the officer for a full service. However, when the vehicle was examined by the Council, it emerged that various faults had been neither rectified nor reported by Halfords.

The Council brought a prosecution against Halfords, alleging that it had committed an offence under the Consumer Protection from Unfair Trading Regulations 2008 by issuing an invoice which misleadingly claimed that a full service had been carried out when it had not. However, at the close of the prosecution case, the District Judge in the Magistrates Court accepted an application of no case to answer, holding that the officer was not a “consumer” for the purposes of the 2008 Regulations and that Halfords had not therefore engaged in a “commercial practice” within the meaning of those Regulations.

The Council appealed by way of case stated and, since the Judge’s interpretation threatened to undermine the operation of the 2008 Regulations to the detriment of consumers, the CMA intervened in the appeal.

In an important judgment issued on 9 November 2018, the Divisional Court (Lord Justice Hickinbottom and Mr Justice Jay) overturned the Judge’s ruling, accepting the CMA’s argument that, even if the officer was not a consumer (which the Court did not determine), the conduct engaged in by Halfords constituted a commercial practice on a proper construction of the 2008 Regulations. In reaching its conclusion, the Court drew upon the Unfair Commercial Practice Directive (2005/29/EC), from which the Regulations are derived, observing that the Directive sought to secure a “high level of consumer protection” and was therefore “broadly framed”. It accepted the CMA’s submission that the construction adopted by the Judge was liable to undermine the ability of the CMA and trading standards authorities to enforce consumer protection law through the use of test purchasing. The Court held in conclusion that a commercial practice for the purposes of the 2008 Regulations “may be constituted or derived from a test purchase made of a product (including a service) that is generally promoted and intended for purchase by consumers, even where the purchaser may not himself be a consumer”.

Ben Lask, who is Standing Counsel to the CMA, acted for the CMA. The full judgment can be read here.

Social enterprise company Central Surrey Health (CSH) has won the first stage in a public procurement challenge against clinical commissioning group, NHS Surrey Downs CCG.   The case centred on whether the commissioners could continue with a contract CSH had originally been part of, but from which they claim they were subsequently “marginalised”.

In yesterday’s High Court ruling the judge decided that automatic suspension was to be maintained until trial. This means that NHS Surrey Downs CCG cannot continue with the contract award for the adult community health services to the IDEEA Partners. The newly awarded contract had been due to start this month but in light of the legal action the CCG extended incumbent provider CSH’s contract until February 2019.

It was successfully argued that if the defendant had breached the principles of transparency and equal treatment, damages would not be an adequate remedy for the claimant and the balance of convenience favoured maintaining the suspension, resulting in automatic suspension being maintained until trial.

Michael Bowsher QC and Ligia Osepciu are representing Central Surrey Health.

London Borough of Haringey v Simawi & Anor [2018] EWHC 2733 (QB)

The High Court has held that the statutory rules governing the right to take over a social housing tenancy when the former tenant dies do not discriminate unlawfully between widows and divorcees contrary to Article 14 of the European Convention on Human Rights (ECHR): London Borough of Haringey v Simawi and Secretary of State for Housing, Communities and Local Government [2018] EWHC 2733.  Ben Lask acted for the Secretary of State.

The Defendant’s mother was the secure tenant of a property owned by the local authority.  She had succeeded to the tenancy automatically upon the death of her husband in 2001 and, since she was therefore a “successor” for the purposes of the Housing Act 1985, the Defendant was unable to succeed to the tenancy when she died in 2013.  The 1985 Act allows for only one statutory succession before the property reverts to the local authority for reallocation to others in need of accommodation.  In certain circumstances, however, a tenancy can pass from one person to another without the one statutory succession being “used up”.  An example is where it is assigned by the Court in divorce proceedings, the result being that the son of a secure tenant who had acquired the tenancy upon divorce could (unlike the Defendant) succeed to the tenancy when she died.

The Defendant resisted a claim for possession brought by the local authority, arguing that the rules on succession discriminated unlawfully between widows and divorcees, such that they contravened Article 14 of the ECHR, in conjunction with Article 8.  Since he sought a declaration of incompatibility under the Human Rights Act 1998, the Secretary of State was joined to the proceedings.

In a judgment handed down on 19 October 2018, the High Court (Mr Justice Murray) rejected the Defendant’s case, accepting the Secretary of State’s submission that the statutory rules were objectively justified.  In particular, since the rules ensured that the one succession rule did not act as a deterrent to divorce, including in cases of domestic abuse, they had a legitimate purpose and satisfied the relevant test for proportionality (i.e. they were not “manifestly without reasonable foundation”).  As a result, the Defendant’s application for a remedy under the Human Rights Act 1998 was refused.

The judgment can be read here.

The CJEU has ordered that the Scottish preliminary reference in the Wightman case (C- 621/18) should be dealt with under the accelerated procedure in Rule 105 RP. A deadline of 30 October has been set for written observations from the parties, institutions and Member States. The hearing will be on 27 November 2018.

The Inner House of the Court of Session referred the case to the CJEU as a result of the petition brought by Andy Wightman MSP and others, including Joanna Cherry MP. Monckton Chambers’ Gerry Facenna QC and Anneli Howard are continuing to represent pro bono Liberal Democrat Brexit Spokesperson Tom Brake MP, and Labour’s Chris Leslie MP, along with Scottish Counsel Morag Ross QC, instructed by John Halford at Bindmans LLP and Jennifer Jack of Harper Macleod. They will be appearing at the forthcoming hearing in Luxembourg.

See previous news item here.

The Inner House of the Court of Session has decided to make a reference to the CJEU for a preliminary ruling on the question of whether the United Kingdom can withdraw the notification of its intention to leave the EU under Article 50 TEU.

The petition was brought by Andy Wightman MSP and others, including Joanna Cherry MP. Monckton Chambers’ Gerry Facenna QC and Anneli Howard are providing pro bono advice and assistance to Liberal Democrat Brexit Spokesperson Tom Brake MP, and Labour’s Chris Leslie MP, who are represented in the Scottish proceedings by Morag Ross QC, instructed by John Halford at Bindmans LLP and Jennifer Jack of Harper Macleod.

On 5 June 2018 the Outer House of the Court of Session (Lord Boyd) refused to make a reference to the CJEU on the basis that the question of revocation of the Article 50 notice was hypothetical. However, in the decision handed down today, the Inner House (the Scottish appeal court) has unanimously held that the issue is not hypothetical and should be answered by the CJEU, in particular so that MPs who make the final decision on the Brexit process can be fully informed as to the options available to the UK, including whether revocation of the Article 50 notice is legally possible, and under what conditions.

In three separate Opinions the Inner House concludes, unanimously, that the issue properly falls within the scope of the Court’s jurisdiction, and constitutional role, to determine non-hypothetical questions of law, and that resolving the legal issues as to the effect of Article 50 TEU does not raise any issue of infringement of parliamentary privilege.

The Inner House proposes to ask the CJEU the following question:

“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU”.

The CJEU will be asked to expedite the request, and is likely to have to consider a number of arguments about the meaning and effect of Article 50 TEU, which have been debated by numerous academics and commentators and were the subject of the so-called “Three Knights Opinion” whose authors include Gerry Facenna QC and former head of Monckton Chambers Sir Jeremy Lever KCMG QC.

The Inner House Opinions contain a number of important observations on the constitutional role of the Courts, the non-hypothetical nature of the important issues facing parliamentarians who must vote on the Brexit process, and the need for the Courts to clarify the legal options open to the United Kingdom before Parliament takes the final decision on Brexit.

Lewis v MIB [2018] EWHC 2376 (QB), 14 September 2018

The Claimant was injured in an accident on private land when he was hit by the uninsured driver of a 4×4 motor vehicle. This was a preliminary issues trial to determine whether the Motor Insurance Bureau (MIB) would be liable to satisfy any judgment against the uninsured driver.

The High Court held that whilst an accident on private land was not a liability which was required to be insured against pursuant to Part VI of the Road Traffic Act 1988, it was a liability which the MIB is obliged to satisfy pursuant to Directive 2009/103/EC (at least to the extent of the minimum in respect of personal injury of €1million per victim) and that the provisions of the relevant EU Motor Insurance Directives have direct effect against the MIB as an emanation of the state.

The Judge followed and applied the CJEU judgments in Vnuk (Case C-162/13) and Farrell v. Whitty (No.2) (Case C-413/15) and held that these had superseded the reasoning in Byrne and the observations of Hobhouse LJ in Mighell.

Permission to appeal to the Court of Appeal was granted to the MIB by the Judge.

Philip Moser QC of Monckton Chambers (instructed by Thompsons) was Leading Counsel for the Claimant.

A copy of the judgment is here.

Please see coverage by The Times.

Today’s judgment by the European Court of Human Rights (ECHR) in Strasbourg presents a significant win for the Applicants behind the three joined cases of Big Brother Watch v. the United Kingdom, Bureau of Investigative Journalism v. the United Kingdom and Ten Human Rights NGOs v. the United Kingdom. The landmark judgment marks the court’s first ruling on UK mass surveillance programmes including bulk interception of communications, intelligence-sharing with foreign governments and obtaining of data from service providers.

The Applicants represent a range of human rights organisations, including non-governmental organisations as well as individuals active in the fields of journalism and data privacy. The submissions were triggered as a result of the revelations regarding the invasive surveillance by GCHQ and other agencies exposed by Edward Snowden in 2013.

The complaints centred on articles 8 and 10 of the convention of human rights, which protect a right to a private family life, and freedom of expression. The court found that both the bulk interception regime and that for obtaining communications data from service providers violated the right to privacy. However, operating a bulk interception regime did not of itself violate the European Convention on Human Rights but that any such regime must contain adequate safeguards against abuse. The regime for intelligence sharing was found lawful.

Specifically in the BIJ’s case the Court found that the interception of external communications, without adequate safeguards to protect the freedom of the press, is unlawful and contrary to the right to free expression and the right of journalists to protect journalistically privileged information, including their sources. It will force the government to review how it intercepts journalists’ communications and to put better safeguards in place to ensure that a journalist can continue to properly protect their sources.

Monckton’s Conor McCarthy was instructed as counsel by the Bureau of Investigative Journalism (BIJ) in Bureau of Investigative Journalism v. the United Kingdom, while Eric Metcalfe acted for the ACLU, Liberty, the Canadian Civil Liberties Association, the Egyptian Centre for Personal Rights, the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties, and the South-African-based Legal Resources Centre (six of the ten NGOs in Ten Human Rights NGOs v the United Kingdom). The parties are pointing out that the UK’s surveillance laws and practices affect the privacy and other rights of millions of people around the world, in part because major internet cables run from and to UK territory.

See BIJ news release here.

See Amnesty International, one of the TEN NGOs, news release here.

See Liberty, one of the TEN NGOs, news release here.

The Judgment was widely covered in the media including The Times, Sky news, The Independent and The Guardian.

The CJEU is today hearing a dispute between Google and the French data protection agency, the Commission Nationale de l’Informatique et des Libertés (CNIL), concerning global enforcement of the CJEU’s landmark 2014 “right to be forgotten” ruling (Google Spain v Gonzalez et al), which requires Google and other search providers to suppress certain search results about EU citizens, if the search is carried out in an EU country.

The CNIL, supported by the French Government, argues that the right should be applied globally, thereby requiring search engines to delete relevant search results on all of their worldwide domains, including their web domains in countries outside the EU. Google, supported by Microsoft, Wikimedia and others, argues that the right to have search results removed should apply only to the state of residence of the person concerned, and not across the whole EU, nor the entire World. The hearing has come about after France’s highest administrative court, the Conseil d’État, referred the dispute to the CJEU.

Free speech and information campaigners who intervened in the national proceedings are also appearing in the CJEU to support Google’s argument that extending the ruling globally would effectively grant European regulators the power to control the world’s internet and would set a global precedent for censorship, including for authoritarian regimes seeking to exert control over information published on the internet.

Gerry Facenna QC and Eric Metcalfe are acting for eight intervening NGOs who argue that the “right to be forgotten” should be limited so as to accord appropriate respect to freedom of expression. They are: (1) ARTICLE 19; (2) Human Rights Watch ; (3) Electronic Frontier Foundation ; (4) Open Net Korea ; (5) Derechos Digitales ; (6) La Clinique d’intérêt public et de politique d’Internet du Canada; (7) Pen International and (8) le Centre for Democracy and Technology.

The case has received wide news coverage, including: The New York Times,  Financial Times, The Register, The Guardian, Sky News.