Kassie Smith QC has been appointed by the States of Jersey to carry out an independent review of the Jersey Competition and Regulatory Authority (JCRA) following the Royal Court judgment in ATF Overseas Holdings Ltd v JCRA.

The review will look into the circumstances leading up to a decision by the JCRA that ATF Fuels had abused a dominant market position. The Royal Court overturned this decision and this independent evaluation of the circumstances surrounding the case will investigate whether the JCRA discharged its legal duties appropriately, and whether there are any significant deficiencies in how Jersey competition law has operated.  Terms of reference were published in a Ministerial Decision on 20 March 2018.

The initial phase of the review will involve a documentary review, followed by meetings with stakeholders to address points of clarification.  It is anticipated that a draft report will be completed in the summer.

This has also been covered by the Bailiwick Express; see here.

Gulamhussein and Tariq v United Kingdom, application nos. 46538/11 and 3960/12

The recent decision of the European Court of Human Rights in Tariq v UK has significant implications for the use of closed material procedures in civil proceedings in which article 6 ECHR is engaged.

Mr Tariq was employed by the Home Office as an immigration officer. In 2006, his security clearance was revoked due to his “close association with individuals suspected of involvement in plans to mount terrorist attacks” and he was dismissed from his job. Mr Tariq attempted to challenge the decision in the Employment Tribunal but the Home Office refused to disclose the evidence supporting its revocation of his clearance. A special advocate was appointed to represent him in closed proceedings but Mr Tariq complained that he was not provided with a gist of the accusations contrary to the principle identified by the ECtHR in A and others v United Kingdom (2009) 49 EHRR 29. In Mr Tariq’s appeal in 2011, however, the Supreme Court held that the principle in A and others did not require a gist to be provided in every case in which article 6 ECHR was engaged.

In Tariq, the First Section agreed with the Supreme Court, noting that article 6 ECHR did not mean that it was “invariably essential for someone to know the “gist” of the case against them” (para 84). It also noted that, despite the lack of disclosure, the special advocate had been able to make submissions on Mr Tariq’s behalf and the resort to closed proceedings had not been arbitrary or manifestly unreasonable.

Eric Metcalfe acted for the human rights organisation JUSTICE as third-party intervener, led by John Howell QC.

A copy of the Court’s judgment is available here.

The Supreme Court has considered the way in which the OFT conducted its ‘Early Resolution’ settlement negotiations with parties who were subject to its tobacco investigation.  In overturning the decision of the Court of Appeal, the Supreme Court has held that a mistake made to the benefit of one party in a settlement negotiation is not required to be replicated to the benefit of other similarly situated parties. It so concluded on the basis of traditional principles of public law rationality, rejecting the opportunity to fashion any stand-alone principle relating to mistakes in public law.

Daniel Beard QC and Brendan McGurk acted for the successful appellant, the CMA.

Click here for the full judgment.

The Divisional Court (Singh LJ and Holgate J) has today handed down judgment in judicial review proceedings brought by Liberty, challenging the lawfulness of the Investigatory Powers Act 2016. The case was identified by the Lawyer Magazine as one of its Top 20 Cases for 2018.

Today’s judgment concerns the compatibility with EU law of Part 4 of the 2016 Act, which contains a regime permitting the Home Secretary to require telecommunications operators to retain specified communications data (that is, data concerning matters such as the duration of telephone calls or emails, but not their content) for up to 12 months. The ability of public authorities to access such retained data can be of vital importance, for instance in criminal investigations.

Following the CJEU’s December 2016 judgment in Tele2/Watson, the Home Secretary had previously conceded that Part 4 of the 2016 Act is incompatible with EU law in two discrete respects, which are the subject of pending amendments to the legislation. The Divisional Court accepted the Home Secretary’s argument that the only appropriate relief in such circumstances was declaratory relief (including a declaration that the 2016 Act should be amended within a reasonable time), and that it was not appropriate to make an order disapplying the offending parts of the 2016 Act, as Liberty maintained.

Liberty also advanced a series of other EU law-based objections to Part 4 of the 2016 Act. These included an allegation that Part 4 is incompatible with EU law because it permits the ‘general and indiscriminate’ retention of communications data, amounting to a serious violation of privacy rights. Liberty contended that these matters should all be referred to the CJEU. However, the Divisional Court agreed with the Secretary of State that it should not make any reference to the CJEU, in some cases because it accepted the Government’s submission that the challenged aspect of the 2016 Act is compatible with EU law, and in other cases because the subject matter of Liberty’s complaint is already covered by a preliminary reference to the CJEU made by the Investigatory Powers Tribunal.

The Divisional Court rejected Liberty’s argument that Part 4 of the 2016 Act permits the ‘general and indiscriminate’ retention of communications data. The Court found that there was no basis for such a complaint, given (among other matters) the statutory requirement for the Home Secretary to be satisfied that retention notices are necessary and proportionate.

Monckton Chambers’ Gerry Facenna QC and Michael Armitage, led by First Treasury Counsel, acted for the Secretary of State for the Home Department and Secretary of State for Foreign and Commonwealth Affairs.