CMA provisionally finds Fox/Sky deal not in the public interest

On 23 January 2018, the CMA published its provisional decision that Fox taking full control of Sky is not in the public interest due to media plurality concerns, but not because of a lack of a genuine commitment to meeting broadcasting standards in the UK.  The media plurality concerns identified mean that, overall, the CMA provisionally concluded that the proposed transaction is not in the public interest.  The public interest issues had been referred to the CMA by the Secretary of State for Digital, Culture, Media and Sport.  The CMA’s final view is due in summer 2018, when the matter will be referred back to the Secretary of State for a final decision on the merger.

The CMA provisionally found that if the deal went ahead, as currently proposed, it would be likely to operate against the public interest. It would lead to the Murdoch Family Trust (MFT), which controls Fox and News Corporation (News Corp), increasing its control over Sky, so that it would have too much control over news providers in the UK across all media platforms (TV, Radio, Online and Newspapers), and therefore too much influence over public opinion and the political agenda.  The MFT’s news outlets are watched, read or heard by nearly a third of the UK’s population, and have a combined share of the public’s news consumption that is significantly greater than all other news providers, except the BBC and ITN.  Due to its control of News Corp, the Murdoch family already has significant influence over public opinion and full ownership of Sky by Fox would strengthen this even further.  While there are a range of other news outlets serving UK audiences, the CMA provisionally found that they would not be sufficient to moderate or mitigate the increased influence of the MFT if the deal went ahead.

The CMA’s investigation also examined a range of evidence to understand whether Fox, Sky and the MFT have a genuine commitment to broadcasting standards in the UK. Here, it provisionally found that Fox taking full control of Sky was not likely to operate against the public interest.

Kassie Smith QC and Julian Gregory are acting for the Secretary of State in this matter.

George Peretz QC and Azeem Suterwalla are acting for Avaaz, who are objecting to the transaction.

This has been widely covered by the press: BBC, The Guardian, The Independent, The Times.

George Peretz QC gives evidence to the Trade Public Bill Committee

George Peretz QC will this afternoon be giving evidence to the House of Commons Public Bill Committee considering the Trade Bill.  The Trade Bill contains various measures designed to enable the UK to enter into trade agreements with third countries after Brexit, and sets up a new Trade Remedies Authority to administer an independent UK trade defence regime.  George has recently written a briefing for the UK Trade Policy Forum on the Government’s proposals for a trade defence regime.

“Threatened Lawyers: the end of the Rule of Law in Europe?” Piers Gardner speaks for CCBE in Strasbourg

On 24 January 2018 the CCBE is organising a Side Event during the Session of the Parliamentary Assembly of the Council of Europe (PACE) on: ‘Threatened Lawyers: the end of the Rule of Law in Europe?’ The Side Event is intended to draw attention to the proposed PACE Recommendation to the Committee of Ministers of the Council of Europe for a European Convention on the Profession of Lawyer. The proposal, which was adopted unanimously in December by the Legal Affairs and Human Rights Committee of PACE, will be voted on by the whole Assembly immediately after the Side Meeting. Piers Gardner will be one of the speakers, explaining why a binding Convention with an effective enforcement machinery, would be a positive step for the rule of law.

The proposed Convention has the strong support of all six of the UK’s Bar Councils and Law Societies which participate in the CCBE, together with the national Bars and Law Societies of 44 other States, together representing one million lawyers. Piers Gardner is the UK member of the CCBE’s Permanent Delegation to the European Court of Human Rights in Strasbourg.

EU Advocate General delivers landmark Opinion in Western Sahara Campaign UK v. Commissioners for Her Majesty’s Revenue and Customs

Advocate General Wathelet has delivered a landmark opinion in Case 266/16 on the validity of the Fisheries Partnership Agreement between the EU and Morocco. The case raises potentially far-reaching issues regarding the relationship between the EU and third counties and the extent to which such agreements must respect public international law and human rights obligations incumbent on EU institutions.

In his opinion, the Advocate General found that “the European Union has failed to fulfil its obligation not to recognise the illegal situation resulting from the breach of the right of the people of Western Sahara to self-determination by the Kingdom of Morocco and also not to render aid or assistance in maintaining that situation”. The AG further found that  in so far as they apply to the territory of Western Sahara and to the waters adjacent thereto, the Fisheries Agreement and a 2013 Protocol to that agreement are incompatible with EU law which imposes on the European Union “the obligation that its external action is to protect human rights and strictly respect international law”.

Conor McCarthy acts for the Claimant. He was instructed by Leigh Day and was led by Kieron Beal QC.

The opinion can be found here.

Ben Lask appointed to CMA standing counsel panel

The CMA has today announced the appointment of Ben Lask to its standing counsel panel. Ben will join the current panel as its fourth member following an open competition and approval by the Attorney General. Rob Williams of Monckton Chambers is already a member of the panel.

Members of the standing counsel panel assist the Competition and Markets Authority (CMA) with its cases, including defending them in court.

The CMA has such a panel because the areas of law it applies – competition, mergers, consumer – are highly specialised and its cases are often heavily contested in the Competition Appeal Tribunal and other courts.

Welcoming Ben’s appointment, the CMA General Counsel, Sarah Cardell, said:“I am delighted that we have been able to appoint an additional member of such high calibre to our current panel.  Having a dedicated, expert team of standing counsel has provided the CMA with high quality legal support across our functions and the addition of Ben to the team will strengthen them further.  I look forward to working closely with all four members of the panel.”

Court of Appeal rules against Independent Police Complaints Commission in Schedule 7 terrorism “stop” case

The Court of Appeal has ruled against the Independent Police Complaints Commission (IPCC) in a case concerning disclosure of information to a complainant where there national security concerns arise.

The claim was brought by Mr Miah who was ‘stopped’ by the Metropolitan Police at Heathrow Airport under Schedule 7 of the Terrorism Act 2000, which allows the police to stop travellers to question them about terrorism concerns, even where there are no grounds of suspicion.

The Appellant complained to the Metropolitan Police that he had been discriminated against on grounds of race and religion and appealed to the IPCC when his complaint was dismissed without being told the reason for the stop. The IPCC dismissed his appeal.

Overturning the judgment of Hickinbottom J, the Court of Appeal found that the Metropolitan Police investigation report was defective because if failed to sufficiently explain why the complaint had been dismissed. There was no evidence that the police had considered and applied the statutory ‘harm test’ for redaction and non-disclosure. The IPCC was therefore wrong not to uphold the Appellant’s appeal that the complaint required further consideration.

The judgment in R (Miah) v IPCC [2016] EWHC 3310 (Admin) can be found here.

Mr Miah was represented by Stephen Cragg QC and David Gregory.


Court of Appeal upholds appeal by EE finding that Ofcom’s statutory duties are non-delegable

EE Ltd v Ofcom [2017] EWCA Civ 1873

The Court of Appeal has upheld an appeal by EE Ltd. in the context of the Annual Licence Fees (ALFs) it and other mobile operators pay for the use of mobile spectrum. The High Court had found last year, dismissing EE’s application for judicial review, that Ofcom had been correct to conclude that it had no discretion but to set ALFs at the market value of the relevant spectrum. The High Court had agreed that Ofcom was obliged to do so in light of a direction by the Secretary of State to set fees at a level reflecting full market value. The Court of Appeal disagreed, finding instead that the power of the Secretary of State to direct Ofcom to exercise its functions in a specific manner did not absolve Ofcom from having regard to its statutory duties and objectives under the Communications Act and the EU Common Regulatory Framework. These duties were non-delegable, and the direction by the Secretary of State did not on the face of it preclude Ofcom from having regard to its wider objectives as it was required to.

Ofcom’s 2015 decision and its implementing Regulations which brought in a significant increase in ALFs have been quashed. Ofcom has been granted permission to appeal the matter to the Supreme Court.

Philip Woolfe and Stefan Kuppen acted for EE (led by Lord Pannick QC).

The judgment can be found here.

High Court Gives Judgment in Sainsbury’s Visa Claim

The High Court (Phillips J) has dismissed Sainsbury’s claim against Visa in the on-going Interchange Fee litigation. In a judgment which departed from important aspects of the reasoning adopted in earlier cases (in particular, the High Court’s Judgment in Asda Stores Ltd v MasterCard Inc and the CAT’s determination in Sainsbury’s v MasterCard), Phillips J concluded that the UK Multilateral Interchange Fees imposed by Visa did not constitute a restriction on competition by effect within the meaning of Article 101 (1) of the Treaty on the Functioning of the European Union. The Court accepted, however, that if the fees had constituted a restriction on competition within the ambit of Article 101 (1) it would not have been objectively justified for purposes of that article. This finding departs from the approach adopted by Popplewell J in the High Court’s earlier ASDA judgment.

Mark Brealey QC acted for Sainsbury’s Supermarkets Ltd in the claim.

To read the judgment please click here.