R (on the application of Stuart Wheeler) v Office of the Prime Minister & Anor [2008] EWHC 1409 (Admin)

On 25 June, the Divisional Court (Richards LJ and Mackay J) gave judgment in favour of the Defendants, the Office of the Prime Minister and the Foreign & Commonwealth Office in the claim for judicial review brought by Mr Stuart Wheeler.

The Court explained that the claim failed for several reasons.

Mr Wheeler failed to establish the existence of the implied promise upon which his case of a legitimate expectation depended, namely a promise to hold a referendum on the Lisbon Treaty.

As to the issue of the differences between the Lisbon Treaty and the Constitutional Treaty, the Court stated, “Unlike the Constitutional Treaty, the Lisbon Treaty does not purport, either by its title or in its terms, to lay down a constitution for Europe. Unlike the Constitutional Treaty, it does not repeal the existing treaties and replace them by a single text, but proceeds by way of amendment of the existing treaties; and it leaves in place the existing entities and institutions (save that the European Community is subsumed into the European Union) rather than replacing them with a new legal entity. We see no basis for dismissing such differences as obviously immaterial even if they are treated as differences of form rather than of substance. There are also, on any view, differences of substance.”

The court noted that an assessment of the substantiality or materiality of such differences as exist depends on political perspective and political judgment and made observations as to the justiciability of the issue. At best the review of the Government’s assessment had to be approached on a Wednesbury basis, and as such, the Court was “far from persuaded that the assessment is an unreasonable one”.

As to the question of whether a promise of this kind could give rise to an enforceable legitimate expectation, the Court held, “The subject-matter, nature and context of a promise of this kind place it in the realm of politics, not of the courts, and the question whether the government should be held to such a promise is a political rather than a legal matter.”

Furthermore, the Court held that the fact that the claim would involve an interference by the court with the proceedings of Parliament was a further decisive reason why the claim must fail.

To view the judgment, please click here.

Ian Rogers appeared on behalf of the Office of the Prime Minister and the Foreign and Commonwealth Office.

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Ian Rogers

 

TNT’s challenge to Royal Mail’s exemption from VAT, due to be heard in the ECJ on 18 June, has attracted the attention of no less than 5 Member States (in addition to the UK) because of the impact that the ECJ’s judgment will have on public postal services in the EU. The TNT case raises fundamental questions about the operation of the exemption and its interrelationship with the regulation of the postal services markets in the EU.

TNT, supported by several Member States, maintains that the exemption infringes the principle of fiscal neutrality, because it applies only to public postal services, and claims that it should either be extended to all providers of postal services or dropped entirely as a result of the liberalisation of the market for postal services in the UK. The UK and Royal Mail, supported by several other Member States, maintain that the exemption remains justified because of the special position of public postal services.

The Commission is concerned that Member States have taken different views on the scope and application of the exemption and wants the ECJ to settle the matter by basing itself upon the EU legislation liberalising the postal services market.

Paul Lasok QC is appearing for Royal Mail

Melanie Hall QC acts for the UK Government/HMRC.

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Paul Lasok QC
Melanie Hall QC

On 17 June, the Grand Chamber of the European Court of Justice heard a number of Member States (the U.K., France, Ireland, Spain and Greece) intervening to support the German position in the Persche case.

The issue in Persche is whether a German taxpayer can claim tax relief in Germany on a cross-border donation made to a Portuguese foundation which is charitable in Portugal. The German tax authorities have refused to give this relief because of the difficulty of checking whether the foundation is also charitable as a matter of German law. The outcome of the case is likely to be important in the U.K. which also restricts tax relief to donations to U.K. charities.

Raymond Hill was instructed by the Treasury Solicitor on behalf of the U.K.

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Raymond Hill

On 18 June 2008, the Competition Appeal Tribunal is due to hear the appeal in Vodafone & Ors v Ofcom. Ofcom has ordered that the network operators must establish a “common database” of numbers and a system of “direct routing” of calls to ported numbers.  Porting is the process by which a consumer can retain their telephone number when they change service provider.

Tim Ward appears for Vodafone, Meredith Pickford is acting for T-Mobile and Alan Bates acts for Ofcom.

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Tim Ward QC
Meredith Pickford
Alan Bates

On 17 June 2008, the Devenish case continues with an appeal against the High Court judgment handed down earlier this year.

Devenish purchased vitamins from members of the vitamins cartel that was the subject of a decision by the EC Commission in 2003. Devenish is seeking all, or some, of the profits earned by the cartelists. The High Court ruled that Devenish was not entitled to that remedy.

Christopher Vajda QC is representing Devenish in the Court of Appeal in its appeal against the High Court judgment (in which he was not involved).

In a decision in the Chancery Division in the appeals in Calltel and Opto v HMRC, delivered on 6th June 2008, Mr Justice Briggs has awarded HMRC security for its costs against the appellant taxpayers. Calltel is an appeal to the High Court from the VAT & Duties Tribunal’s decision of 20th July 2007 that the appellants were knowingly connected with MTIC fraud. It is believed to be the first time that HMRC have asked for (and received) security for costs in a VAT or Duties appeal. Security was ordered both for the costs already incurred and awarded below and against future costs of the appeal.

Philip Moser is junior counsel for HMRC.

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Philip Moser QC

Last week, the Competition Appeal Tribunal heard appeals by British Sky Broadcasting Group (“Sky”) and Virgin Media against decisions taken by the Competition Commission and the Secretary of State for Business, Enterprise and Regulatory Reform in relation to Sky’s acquisition of a 17.9% shareholding in ITV.  In a report published last December, the Competition Commission concluded that Sky’s shareholding in ITV may be expected to give rise to a substantial lessening of competition, and recommended that Sky’s holding should be reduced to a level below 7.5%.  The Secretary of State was responsible for the eventual decision on remedial action, but agreed with the Commission’s recommendation.  Sky has challenged the Commission’s conclusions on jurisdiction, competition and remedial action, and also challenges the Secretary of State’s decision on remedies.

Virgin Media has mounted a separate challenge to aspects of the decision in relation to the media public interest consideration that there be a sufficient plurality of persons with control of media enterprises serving certain UK audiences.  Both the Commission and the Secretary of State found that the merger is not expected to operate against the public interest on this latter basis.  Virgin Media has also complained that the remedy imposed was inadequate. The Tribunal has reserved its judgment on both appeals.

Rupert Anderson QC and Elisa Holmes acted for The Secretary of State.

John Swift QC, Daniel Beard and Rob Williams were counsel for The Competition Commission.

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John Swift QC
Daniel Beard QC
Rob Williams
Elisa Holmes

This week the High Court is considering an application by Stuart Wheeler for judicial review brought against the Prime Minister and Foreign Secretary. Mr Wheeler challenges their decision not to hold a referendum on whether the United Kingdom should ratify the Treaty of Lisbon. He argues that the Government made unequivocal promises that a referendum would be held to allow the electorate to vote on whether the now defunct Constitutional Treaty should be ratified, and that the refusal to hold a referendum in respect of the Treaty of Lisbon is unlawful as being in breach of his legitimate expectation.

Ian Rogers is appearing as junior counsel on behalf of the Prime Minister and Foreign Secretary.

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Ian Rogers

On Wednesday 4 June, Jeremy McBride was appointed a member of the new Scientific Committee of the European Union’s Fundamental Rights Agency.

The Agency is an independent body of the European Union, established to provide assistance and expertise to the European Union and its Member States when they are implementing Community law, on fundamental rights matters. The aim is to support them to respect fully fundamental rights when they take measures or formulate courses of action. The Scientific Committee is intended to serve as guarantor of the scientific quality of the Agency’s work.

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Jeremy McBride

 

The CAT handed down judgment in two major appeals on 20 May (the appeals having been heard together in January and February):

(1) Mobile Call Termination – in which the CAT upheld Ofcom’s finding that H3G had significant market power in the market for mobile call termination on H3G’s network, and its related decision to impose a price cap on H3G’s termination charges (i.e. the charges imposed by H3G on other mobile network operators for connecting calls to H3G subscribers).  Ofcom is empowered to impose “SMP Conditions” by Part 2 of the Communications Act 2003, which gives effect to a raft of EC communications directives.  Ofcom made similar findings in relation to the other mobile network operators, but there were not appealed.  H3G’s appeal against the level of the price cap (together with a similar appeal by BT) is currently before the Competition Commission – as the first price control reference under s.193 of the Communications Act 2003.

(2) Termination Rate Disputes – in which the CAT upheld appeals by T-Mobile, BT, H3G and the FNOs (a group of fixed network operators led by Cable & Wireless) against Ofcom’s resolution of a number of disputes between (a) BT and each of the MNOs; and (b) H3G and each of O2 and Orange.  Ofcom is empowered to resolve disputes between communications providers under s.185 of the Communications Act 2003, which also gives effect to the EC communications directives.  In this case, each dispute concerned the prices charged by the MNOs for mobile call termination, and in each case Ofcom had upheld rates that were said by the appellants to be too high.  The Tribunal is currently considering the level at which Ofcom should have fixed the rates in dispute, and intends to remit the matter to Ofcom with an appropriate direction.

Peter Roth QC, Josh Holmes and Ben Lask represented OFCOM

Jon Turner QC and Meredith Pickford represented T-Mobile whilst Anneli Howard appeared for BT.

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Jon Turner QC
Josh Holmes
Meredith Pickford
Anneli Howard
Ben Lask