British-American Tobacco Ltd v HMRC First-tier Tribunal (Tax Chamber), 14 February 2017; [2017] UKFTT 167 (TC): Tribunal clarifies tobacco manufacturers’ anti-smuggling duties

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In a judgment handed down in final form last week, the First Tier Tax Tribunal provided the first ruling on the penalty provisions of section 7 A-C of the Tobacco Products Duty Act 1979 (“TDPA”).

In this test case, British-American Tobacco (“BAT”) appealed against a £650,000 penalty imposed by HMRC. Section 7A TPDA places a duty on tobacco manufacturers not to facilitate smuggling. The maximum penalty is £5 million.

The Tribunal held that the language of s7B(1) did not require proof that the manufacturer’s product had in fact been smuggled; it was enough to show that the manufacturer had failed to take sufficient steps to prevent its supplies being smuggled. The Tribunal also held that HMRC had to prove the grounds that led them to think there had been a breach of duty. The Tribunal found that HMRC had been entitled to make the penalty notice against BAT on some grounds but not others. The Tribunal therefore set aside the penalty notice, allowing BAT’s appeal in part and imposing a reduced penalty of £100,000.

The Tribunal’s decision is the first time that the amended penalty provisions of the 1979 Act have been judicially considered and the ruling addresses a wide range of issues, including the scope of the duty under s.7A, the applicability of EU competition law and the fair trial guarantees of the ECHR. Amongst other findings, the Tribunal held that the penalty amounted to a ‘criminal charge’ for the purposes of Article 6 ECHR and construed s.16(5) of the Finance Act 1994 so as to give the Tribunal a full merits-based jurisdiction to quash or vary HMRC’s decision and substitute its own decision; further, the Tribunal concluded that the reverse burden of proof under section 16(6) of the 1994 Act did not breach ECHR fair trial requirements. The Tribunal also found that in a final s.7 penalty notice HMRC is only entitled to rely on matters it had clearly identified in the requisite ‘Initial Notice’.

Philip Moser QC and Brendan McGurk were instructed by Hogan Lovells International LLP for the Appellant.

Melanie Hall QC, Eric Metcalfe and David Gregory were instructed by the Solictors’ Office for Excise and Revenue on behalf of HMRC.

Court of Appeal rejects challenge to the UK’s rules on free movement

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The Court of Appeal this week rejected a challenge to the UK’s rules on the rights of non-EU nationals who are, or have been, family members of EU nationals residing in the UK: Shakeel Ahmed v Secretary of State for the Home Department [2017] EWCA Civ 99.

The Appellant, a national of Pakistan, was the ex-husband of a Polish national who had been working in the UK at the time of their marriage.  UK legislation implementing the EU Citizenship Directive (Directive 2004/38/EC) provided that, in order to retain a right of residence in the UK following divorce from an EU national, a person in the Appellant’s position had to be working or self-sufficient at the time of the divorce.  Since, in this case, there had been a four month gap between the divorce and the date on which the Appellant commenced employment, the Home Secretary decided that the Appellant had not retained a right of residence in the UK.

Whilst there was no dispute that the Home Secretary had correctly applied the domestic legislation, the Appellant argued that the Directive imposed no such requirement and that the UK legislation was therefore incompatible with EU law.  In a judgment handed down on 28 February, the Court of Appeal rejected this argument.  Giving judgment for the Court, Lady Justice Arden held that, under article 13(2) of the Directive, a non-EU national was required to be working or self-sufficient at the time of the divorce in order to retain a right of residence thereafter.  As such, the UK legislation correctly implemented EU law and the appeal was dismissed.

With this week’s defeat in the House of Lords, the post-Brexit rights of EU nationals living in the UK is one of the most significant issues facing the Government at present.  Whilst the position of non-EU nationals has received less media attention thus far, the Court of Appeal’s judgment is a timely reminder that any steps taken to protect the position of EU nationals in the UK following Brexit will have to deal with the position of any non-EU family members, including what happens to them in the event of a marriage breakdown.

Ben Lask represented the Home Secretary.

Please click here to read the judgment.

Employment Tribunal dismisses test claims alleging changes to Firefighters’ pension arrangements are discriminatory

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In a judgment handed down this week, the Employment Tribunal dismissed all test claims brought by five firefighters alleging that transitional arrangements included in the Firefighters’ Pension Scheme 2015 are discriminatory.

The changes to firefighters’ pensions were part of the wide-ranging public sector pension reforms brought in after the 2011 Hutton Report concluded that since people are living longer, public sector pensions needed to be revised to make them sustainable for the taxpayer.

However, the claimants’ challenge was only to the transitional arrangements in the new pension scheme, whereby those firefighters within 10 years of pension age are protected by being able to remain in their existing pension scheme. There are also a further four years of tapered protection. It was alleged that such arrangements were directly discriminatory on grounds of age.

The Defendants – four Fire and Rescue Authorities, the Home Office and the Welsh Ministers – accepted that the transitional arrangements treat younger firefighters less favourably on the grounds of age, but argued that this is justified since it is a proportionate means of achieving a legitimate aim. The aim is to protect those closest to pension age from the effects of pension reform, given that they would have less time in which to rearrange their affairs before retirement, by making any necessary financial or lifestyle changes.

Judge Lewzey (sitting alone) accepted that this aim was legitimate, and that the treatment of the claimants was a proportionate means of achieving it, and accordingly the claims of direct age discrimination failed. The Tribunal also accepted that those closest to retirement have a greater legitimate expectation that their pension entitlements will not change significantly.

The claimants also brought claims for equal pay and claims of indirect discrimination on grounds of sex and/or race, as female and BME firefighters are disproportionately likely to be in the unprotected group. Male firefighters also brought ‘piggy-back’ equal pay claims. All claims failed.

Behind the five test claimants were over 5000 claims in England and Wales.

Similar claims had been successfully pursued in McCloud & Others v Ministry of Justice in relation to the transitional protection provided within the judges’ pension scheme. Judge Lewzey noted that the McCloud judgment of 16 January 2017 was not binding upon the Tribunal and that she must decide the firefighters’ case on the basis of the evidence and submissions she heard, and in those circumstances she disregarded the McCloud decision in reaching her conclusions.

Raymond Hill and Imogen Proud acted for the Home Office and the Welsh Ministers.

 

Challenge to Sale of Arms to Saudi Arabia before High Court

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The High Court has heard a challenge brought by Campaign Against Arms Trade (“CAAT”) in respect of the granting of licences by the United Kingdom in respect of the sale of arms to Saudi Arabia for use in its military operations in Yemen.

Yemen is presently engulfed in a bloody civil war in which  Houthi forces loyal to former president Ali Abdullah Saleh have launched an insurrection against the government  of Abdrabbuh Mansur Hadi.  A coalition of Gulf states is conducting air and ground operations in Yemen in support of the Yemeni government. Grave concerns have been raised about the conduct of these military operations. A wide range of international bodies, including the UN Security Council’s Panel of Experts on Yemen has concluded that the Coalition’s air strikes in Yemen are likely to have involved serious violations of the laws of war, including war crimes and possibly crimes against humanity.

CAAT seeks an injunction to prevent the licensing of further military equipment on grounds that there is a clear risk that such equipment might be used in serious violations of international humanitarian law.

Conor McCarthy, instructed by Leigh Day, is junior counsel for the Claimant.

Nikolaus Grubeck, instructed by Debevoise and Plimpton, is junior counsel in the proceedings for a coalition of intervenors (Human Rights Watch, Amnesty International and Rights Watch UK).

Court of Appeal agrees in Test Case that the Department of Work and Pensions was required to award £120,000 to boy suffering from narcolepsy with cataplexy caused by H1n1 vaccine

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In a judgment in a test case handed down today, the Court of Appeal upheld tribunal judgments awarding a boy (known as “John”) £120,000 under the Vaccine Damages Payments Act 1979 (“the Act”).

It was agreed that John’s narcolepsy with cataplexy was caused by his vaccination against H1N1 flu in 2009.  He has sudden attacks of day-time sleepiness and a tendency to collapse to the ground, as well as permanent severe tiredness.  The uncontested evidence was that John’s condition is unlikely to improve as he grows up.

Under the Act, any person who suffers injury as a result of most types of routine vaccination is entitled to an award of £120,000 if they meet a test of “60% disablement”.  The appeal dealt with various issues as to how 60% disablement was to be assessed.

The Tribunal looked at John’s disablement not just as it affected him as an 11-year old (his age at the time of the Tribunal decision) but at how it would affect him over his future life.  The Tribunal took into account, in particular, the effects that narcolepsy with cataplexy would have on him as he becomes a young man, such as disruption to exams, inability to drive, and effects on his social life.  The DWP said that that approach was wrong and that the Tribunal should have limited its consideration to how his condition affected John as an 11-year old.

The Court of Appeal dismissed the DWP’s appeal.  It accepted John’s argument that the DWP’s interpretation was inconsistent with the fixed-sum nature of the scheme and that it “potentially turn[ed] the scheme into a litigation game” where entitlement to the award would depend on the exact timing of the claim and of appeals.  The Court of Appeal also agreed with John’s case that the Tribunal had been entitled to refer, in support of its conclusion, to a statutory schedule of percentages of disablement used in industrial injury benefit cases, and noted John’s point that, under that schedule, a double leg amputee such as Oscar Pistorius would be 100% disabled.

The result is likely to affect over 100 other cases where narcolepsy with cataplexy has been caused by vaccinations in 2009-10 against H1N1 flu.  The cases were the subject of a Channel 4 documentary broadcast in March 2015 (“The kids who can’t stay awake”) covered here.

George Peretz QC and Conor McCarthy acted for John.  Further details about the case, and the other cases standing behind it, are available here.

Supreme Court rules that Government cannot invoke Article 50 under the Royal Prerogative

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The Supreme Court has this morning given judgment in the case of R(Miller) v Secretary of State for Exiting the EU [2017] UKSC 5.  In summary, the Court has (by majority of 8 to 3) dismissed the Government’s appeal against the Divisional Court’s judgment , and has ruled that the Government has no power under the Royal Prerogative to invoke Article 50 TEU.  An Act of Parliament is now required to authorise the executive to trigger the Article 50 process. As regards the additional devolution arguments made on behalf of Northern Irish citizens and the devolved Governments of Scotland and Wales, the Court has unanimously held that UK ministers are not legally compelled to consult the devolved legislatures before triggering Article 50.

The Supreme Court’s judgment can be found here.

The press summary can be found here.

A transcript of Lord Neuberger’s summary given in open court.

All the parties’ written cases.

To read the case note written by Fiona Banks, Monckton Chambers please click here.

The judgment, 96 pages long and containing detailed dissents from Lords Reed, Carnwarth and Hughes, will be discussed in detail by Gerry Facenna QC , Anneli Howard  and Jack Williams  at a forthcoming Monckton seminar this Thursday. For now a few matters are particularly noteworthy.

First, the Court’s judgment clarifies the proper framework for analysing prerogative powers. After establishing that a relevant prerogative power exists (see [34] and [54]), the next stage is to determine the extent of that prerogative power. This comes before any question of abrogation by statute arises. Thus, the Court delimits prerogative powers generally, and the foreign relations treaty prerogative specifically, in confirming that executive powers cannot change domestic law (see, in particular,  [50]-[57]). It was therefore unnecessary to consider subsequent questions of whether the relevant prerogative power had been excluded or abrogated by statute, or whether its purported exercise was otherwise unlawful, once the Court found that domestic law and rights would be affected if Article 50 were triggered by prerogative power (see [60] – [89]). As the Court stated, “rather than the Secretary of State being able to rely on the absence in the 1972 Act of any exclusion of the prerogative power to withdraw from the EU Treaties, the proper analysis is that, unless that Act positively created such a power in relation to those Treaties, it does not exist” ([86]).

Second, the Supreme Court upheld the Divisional Court’s two-pronged reasoning that prerogative power does not extend to either changing domestic law or affecting domestic rights (see [83]). This may have significant consequences for the use of prerogative powers in the international sphere where domestic or acquired rights would be affected, and is of potentially wider application than if the Court had confined its analysis to circumstances where acts on the international stage result in changes to the (domestic) constitutional framework. It may, combined with the findings in relation to the principle of legality ([87]), have implications for what the authorisation bill needs to cover.

Third, the judgment lays to rest the heated academic debate as to whether a preliminary reference was required on the reversibility of Article 50 for the purposes of this litigation. The Court stated, in accordance with the Secretary of State’s own case, that the reversibility of otherwise of an Article 50 notification “would make no difference to the outcome of these proceedings” ([26]). As such the Court was prepared to proceed on the assumption that an Article 50 notification was unilaterally irrevocable (as all parties in the litigation agreed was prudent), without deciding the issue or expressing any views either way on the matter.

Finally, the Court’s ruling on the Sewel Convention reiterates that constitutional conventions are a political constraint only which, whilst playing an important role in the operation of the UK constitution, are not for the Court to police in terms of their scope and application (see [136] – [151]). The reservations for ruling on the scope of a convention may be slightly surprising to some (the courts have previously ruled on the nature and scope of conventions, if not enforcing them).

Anneli Howard is instructed by Mischcon de Reya to represent Mrs Gina Miller, the First Respondent.

Gerry Facenna QC, David Gregory, and Jack Williams are instructed by Bindmans LLP on behalf of the Pigney Respondents/Interested Parties (known as “The People’s Challenge”).

All views are entirely personal and do not represent the views of other Members of Monckton Chambers or clients.

Single market challenge: Adrian Yalland and Peter Wilding v SSEU (Article 127 EEA)

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Monckton Chambers’ members are advising on a challenge to the Government’s plan for the United Kingdom to leave the single market. The claim was commenced by two members of the think-tank British Influence on 29 December 2016.  The claim challenges the Government’s statement that the United Kingdom automatically leaves the European Economic Area following its departure from the EU under Article 50 TEU.  It seeks a declaration that the United Kingdom can only leave the single market by following the formal withdrawal procedure under Art 127 of the EEA Agreement and with Parliament’s prior authorisation in the form of an Act of Parliament.

A permission hearing has been listed before the Divisional Court on 3rd February, which will also deal with a parallel claim brought by four individuals who live in the UK or in other EEA States.

George Peretz QC and Anneli Howard are acting for the claimants Adrian Yalland and Peter Wilding.

Daniel Beard QC and Julianne Kerr Morrison are acting for the Government.

The case has already received extensive coverage including The Times and The Guardian.

CAT dismisses claim for interim relief in Phenytoin challenge

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The Competition Appeal Tribunal (Peter Freeman QC) has rejected an urgent application by Flynn Pharma for interim relief against the CMA’s decision that Flynn should reduce its prices of Phenytoin capsules with effect from Monday.  The Directions form part of the CMA’s decision of 7 December 2016 in which it found that Flynn’s prices (and those of its supplier Pfizer) were excessive.  Flynn and Pfizer both intend to appeal against the CMA’s Decision.

Flynn brought an application for interim relief to prevent the Directions from taking effect until its appeal had been resolved.   Flynn argued that the Directions would cause it serious and irreparable harm including financial losses, a potentially permanent effect on market prices and changes to the organisation of its business.  Flynn offered a cross undertaking to protect the NHS against financial losses which interim relief would cause.  The CMA opposed the application and the Department of Health intervened in support of the CMA.

The Tribunal found that the grant of interim relief would take funds out of the NHS which would otherwise be used to treat patients in need of care in the period pending the appeal.  This would cause irreversible harm to the patients in question.  The Tribunal found that this non-financial harm was detrimental to the public interest, and was the very harm which the Decision was intended to prevent.  The Tribunal ruled that this outweighed any harm which the Directions would cause to Flynn.  It also identified difficulties in applying the cross undertaking which Flynn had proposed.

The application is the first to be decided under the new rule 24 of the Tribunal’s Rules of 2015 which the Tribunal found establishes a new jurisdictional threshold for interim orders.

The judgment can be found here.

Ronit Kreisberger acted for Flynn Pharma.

Rob Williams acted for the CMA.

Brendan McGurk acted for the Department of Health.

CJEU disagrees with Advocate-General on meaning of competition and fiscal neutrality in VAT Directive.

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Article 13 of the VAT Directive exempts public bodies from VAT except where this would lead to significant distortions of competition. The decision in Case C-288/07 Commissioners of Her Majesty’s Revenue & Customs –v- Isle of Wight Council (2008) ECR I-7203 appeared to say that if the public body and private operators carry on an activity of the same nature, then fiscal neutrality requires that they both be subject to VAT but where the nature of the economic analysis of the distortion of competition (if any) to be carried out was very unclear. In particular, it remained unclear whether a distortion of competition was to be presumed in such circumstances. In Case 344/15 National Roads Authority v Revenue Commissioners, the Advocate General Spzunar on 8th September 2016 expressed the view that even though there was no evidence of actual competition between the Irish public operator of two toll roads (the NRA) and private toll road operators, fiscal neutrality required that the NRA should be subject to VAT on the tolls it charged in the same way as private operators because the two activities were similar in nature so that a distortion of competition must be presumed.

In a decision handed down on 19th January 2017 the CJEU took a different view. The CJEU stated that while the general principle was that any economic activity was to be subject to VAT, that principle could not be applied in a way which deprived the exemption for public bodies of its effectiveness. Treating a public body as non-taxable requires an assessment of economic circumstances. The exception in relation to significant distortions of competition “[43]….presupposes, first, that the activity in question is carried on in competition, actual or potential, with that carried on by private operators and, secondly, that the different treatment of those activities for VAT purposes leads to significant distortions of competition, which must be assessed having regard to economic circumstances. [44] It follows that the mere presence of private operators on a market, without account being taken of matters of fact, objective evidence or an analysis of the market, cannot demonstrate the existence either of actual or potential competition or of a significant distortion of competition.” Since there was no economic analysis or evidence that the NRA competed (actually or potentially) with the private operators, the Court held that the NRA should not be regarded for the purposes of Article 13 as competing with private operators.

Michael M. Collins SC acted for the National Roads Authority.

Please click here for the full judgment.

Supreme Court hands down three judgments in landmark human rights cases – Serdar Mohammed, Al Waheed, Belhaj and Rahmatullah

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The Supreme Court has handed down three important judgments which are expected to have significant impact on the protection of human rights overseas.

Serdar Mohammed v Ministry of Defence & Al Waheed v Ministry of Defence [2017] UKSC 2 (available here) concerned the capture of individuals by UK forces in Afghanistan and Iraq. Following two hearings before a nine-member Supreme Court, the Court held by a majority of 7 to 2 that the UK had authority to detain individuals pursuant to the United Nations Security Council Resolutions authorising the use of all necessary measures if the detention was found to be required for imperative reasons of security – a matter that will be determined by the trial judge in both cases. However, the Court further held by majority of 6 to 3 that the procedural protections afforded to detainees in Afghanistan had in any event been inadequate (there were no findings regarding the procedures in Iraq before the Court).

Belhaj and another v Straw and others & Rahmatullah (No.1) v Ministry of Defence and Foreign and Commonwealth Office [2017] UKSC 3 (available here) concerned the UK’s involvement in the capture and rendition of individuals abroad. A seven-member Supreme Court dismissed the Government’s appeal, holding that the Defendants could not rely on state immunity or foreign act of state and that the cases should proceed to trial.

Rahmatullah (No.2) v Ministry of Defence & Mohammed and others v Ministry of Defence [2017] UKSC 1 (available here) concerned tort cases brought by the Claimants under the law of Iraq and Afghanistan. A seven-member Supreme Court held that the Defendant could rely on the doctrine of Crown Act of State and that insofar as the claimants’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, the Government cannot be liable in tort.

Nikolaus Grubeck is acting for Serdar Mohammed, Al Waheed and Rahmatullah.

Julianne Kerr Morrison is acting for Serdar Mohammed.