RB (Algeria) and another v Home Secretary [2009] UKHL 10

Robert Palmer was junior counsel for the Home Secretary in these appeals, in which the House of Lords found in favour of the Home Secretary on all the points argued, which turned on issues arising principally under Articles 3 and 6 of the ECHR. The appeals arose out of deportation proceedings instituted against two Algerian nationals who the Home Secretary considers are a risk to national security; a third Jordanian nation’s appeal was heard at the same time: he is the Islamist cleric better known as Abu Qatada. The Special Immigration Appeals Commission (SIAC) had dismissed all their appeals.

The House of Lords held that it was permissible for the Home Secretary and SIAC to rely on inter-governmental assurances about the treatment of the deportees after their return to their countries of origin to conclude that they would not (as they would otherwise have been without such assurances) be at risk of torture or inhumane or degrading treatment. The House of Lords also decided that procedures of the Special Immigration Appeals Commission for considering evidence only disclosed to a Special Advocate and not the Appellant himself are not unfair. The case is also important for the conclusion that the Court of Appeal’s jurisdiction, on an appeal from SIAC, is limited to questions of law as provided by the statute even in relation to human rights issues; consideration of such issues does not automatically raise questions of law but may (as here) be purely matters of factual assessment for SIAC.

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Robert Palmer

The European Court of Human Rights declared admissible an application by YUKOS Oil Company on 29 January 2009. Details of that decision now released show that the Court has accepted for further examination on their merits YUKOS’ complaints that:

• the company had been taxed unlawfully in respect of liabilities totalling US $37 Bn which were wholly unknown to Russian Law before the Yukos case;
• that this taxation and its enforcement amounted to the disguised expropriation of the company and its assets, and
• that these measures singled the company out for special treatment in a discriminatory way as an abuse of power.

The Court also admitted for further examination that YUKOS’ complaints that the Russian tax proceedings as a whole had been unfair and represented the imposition of retrospective criminal penalties.

In declaring the vast majority of Yukos’ complaints admissible, the Court also rejected the Russian Government’s argument that all these complaints were now moot because Yukos had been made bankrupt and ceased to exist under Russian law. The Court specifically held that Piers Gardner, of Monckton Chambers, who has represented YUKOS before the Court since this application was filed in 2004, continues to be YUKOS’ valid representative in the proceedings.

The Court has requested written submissions from the parties in relation to nine questions and has decided to hold a hearing on the merits.

YUKOS’ underlying dispute concerning the tax liabilities of US$37 Bn and their consequences is the largest dispute by value ever to have been litigated before any court, domestic or international

For the ECtHR judgment, please click here.

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Piers Gardner

Philip Moser has been advising CounterBalance, a coalition of European NGOs, in relation to the European Investment Bank and Case 155/07 Parliament v Council, an ECJ ruling on the Community Guarantee Decision.

On 28th January 2009 Philip Moser gave evidence to an EU select committee on the Community Guarantee and he has assisted in drafting proposed legislative amendments which are currently before the European Parliament.

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Philip Moser QC

The High Court has given judgment in favour of the Home Secretary on an application for Judicial Review concerning the Posted Workers Directive (96/71/EC) and Article 49 EC (the freedom to provide services).

The case of R(Lee Ling Low, Rising Sun Catering, Hot Hot Grill and Bar Ltd and others) v Secretary of State for the Home Department [2009] EWHC 35 (Admin) was identified as the lead case for speedy determination, among 23 Judicial Review applications. A further 650 cases had been dealt with in the same manner by the Home Secretary.

The case involved an Irish company entering an agreement to supply catering services to a UK restaurant company. The services were to be provided by third country nationals who were illegally present in the UK and had no right to reside in Ireland. An application was made on behalf of the Irish company, UK company and the third country nationals in this and hundreds of other cases, seeking confirmation of the workers’ status as “posted workers” of the Irish company under Article 49 EC and the principle of derivative rights. It was also argued that the Home Secretary had no current published policy indicating in what circumstances her Department would grant “permission to work” to those persons who are subject to immigration control and who are granted temporary admission.

Article 2 of the Posted Workers Directive defines a “posted worker” as a “worker who, for a limited period, carries out his work in the territory of a member state other than the state in which he normally works”. All parties relied on a series of decisions relating to posted workers and Article 49 in the European Court of Justice, the best known of which is Case C-43/93, Vander Elst, [1994] ECR I-3803.

The Court held that none of the Claimants have any entitlement to rely on Article 49 and the posted workers cases because the third party nationals were not resident in the member state of establishment, Ireland. As the third country nationals were not lawfully resident in Ireland, the Home Secretary’s decisions not to regularise their status and to detain and remove them were lawful and not in breach of EC law. The Court also found that the Claimants’ reliance on Article 49 was an abuse of EC law. Finally, the Court held that there is a transparent and publicly available policy relating to permission to work for those granted temporary admission; and the decisions were in accordance with this policy.

The judgment contains a comprehensive analysis of the case law on posted workers and the “abuse of EC law” doctrine.

The High Court refused the Claimants’ request to refer the case to the European Court of Justice, stating that it had no doubt that the Home Secretary’s submissions were correct in law.

Ian Rogers appeared for the Home Secretary, instructed by the Treasury Solicitor

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Ian Rogers

We would like to extend our warm congratulations to the following members upon their successful applications to the Panel of Crown Counsel.

A Panel

Peter Mantle (renewed)

George Peretz (elevated)

Kassie Smith (elevated)

B Panel

Philip Moser (new appt)

Valentina Sloane (elevated)

Mario Angiolini (elevated)

Elisa Holmes (new appt)

C Panel

Alan Bates (new appt)

This takes the total of Monckton Chambers’ panellists to 22: 7 A Panel, 8 B Panel and 7 C Panel.

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Philip Moser QC
Kassie Smith QC
Peter Mantle
George Peretz
Valentina Sloane
Alan Bates
Elisa Holmes

Monckton Chambers will host  the next ICC Task Force on Public Procurement meeting on Friday 27 February 2009

The meeting will be held to discuss:

• The Task Force Programme for addressing failures in public procurement systems.
• UNCITRAL Model Law on Procurement of Goods, Constructions and Services
• ICC Model Confidentiality Clause for Public Contracting
• Other Task Force’s business

Michael Bowsher QC is a member of The International Chamber of Commerce.

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Michael Bowsher QC

Michael Bowsher QC presented his thoughts on the UK perspective on corruption at the inaugural Procurement Lawyers Association event held at Addleshaw Goddard’s last Friday.

The Association was formed with the aim of bringing together expert practitioners to discuss the increasingly litigious issues affecting the procurement environment, to develop skills and to share best practice..

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Michael Bowsher QC

Lewison J, judgment 16 January 2009

These were the first two appeals from a full Tribunal hearing to the High Court in what is known as missing trader intra-community fraud (or MTIC) fraud. The judgment helpfully sets out the ingredients of the three principal kinds of carousel-type fraud: (1) acquisition fraud; (2) “straight” MTIC fraud and (3) contra-trading. Both appeals involved whether the traders “ought to” have had knowledge of fraud for the purposes of denying input tax repayment under the ECJ’s test in Kittel, the Tribunal having found no actual knowledge. Livewire was principally concerned with the requisite ingredients for proving that the trader ought to have known about contra-trading (which was also a secondary issue in Olympia). The Tribunal had found that the Revenue had to show that the taxable person ought to have known of both the missing trader’s fraud and also the contra-trader’s involvement in that fraud. Olympia principally involved the question of whether the knowledge to be attributed to a trader company was that of the director, whom the Tribunal had found was “naïve,” or whether it was an objective test.

The court held:

Where it was ascertained, having regard to objective factors, that the supply was to a taxable person who knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of value added tax, it was for the national court to refuse that taxable person entitlement to the right to deduct. In both cases, the Tribunal had applied too high a test to contra-trading. In the case where the contra-trader had himself been a dishonest co-conspirator it was sufficient if the trader knew or ought to have known of the contra-trader’s dishonesty. In a case where the contra-trader had not been dishonest, it was sufficient if the taxable person knew or ought to have known of the missing trader’s default. However, on the facts as found, the Tribunal’s error of law did not affect the eventual result in relation to the contra-trades in either of these appeals. In relation to Olympia, the Tribunal was wrong to adopt a legal test for knowledge that required fewer precautions (or a lower level of understanding) than would have been required of a director of ordinary competence. Olympia was accordingly remitted for a rehearing.

Rupert Anderson QC and Philip Moser (instructed by Solicitors for Revenue and Customs and Howes Percival LLP) appeared for the Revenue.

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Philip Moser QC

It was announced today that John Swift QC has been appointed to the new Co-operation and Competition Panel, chaired by Lord Carter of Coles

The Panel has been established to help ensure NHS-funded services deliver high quality care for patients and value for money for taxpayers. It will start its work later this week on Friday 30 January.

The Panel will investigate potential breaches of the Principles and Rules of Co-operation and Competition (PRCC), and make independent recommendations to Strategic Health Authorities, the Department of Health and, in relation to NHS Foundation Trusts, Monitor on how such breaches should be resolved.

It will also review proposed mergers, and advise on the wider development of co-operation, patient choice and competition within the NHS.

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John Swift QC