Kassie Smith QC appointed to carry out independent review of the Jersey Competition and Regulatory Authority

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.

Tariq v UK: Lack of Gist in Closed Proceedings Not Unfair

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 In 2006, his security clearance was revoked due to his “close association with individuals suspected of involvement in plans to mount terrorist attacks” and he was dismissed from his job.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.

Two wrongs don’t make a right: The Supreme Court’s Decision in R (Gallaher and Somerfield) v Competition and Markets Authority [2018] UKSC 25

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.

Anneli Howard joins former Lord Chancellor Kenneth Clarke QC MP to argue for the motion “The first casualty of Brexit will be City talent!” in the first of Thomson Reuters Legal Debates for 2018

Anneli Howard is one of the four “heavyweights from law and politics” being brought together on Thursday 7th June, for a contentious debate on Brexit and the future of the City’s talent.  The debaters will argue the motion “The first casualty of Brexit will be City talent!”

 

Arguing FOR the motion:

Kenneth Clarke QC MP, Member of Parliament for Rushcliffe and former Lord Chancellor

Anneli Howard, Barrister, Monckton Chambers

 

Arguing AGAINST the motion:

Michael Howard, Former leader of the Conservative party

Francis Hoar, Barrister, Field Court Chambers

 

The debate is being chaired by Axel Threlfall, Editor at Large, Reuters.

The Legal Debates are a series of evening events for key partners of Thomson Reuters and key customers of legal solutions.

House of Commons International Trade Select Committee backs George Peretz QC on improvements to the proposed Trade Remedies Regime

In its report published today on the Government’s proposed legislation setting up a Trade Remedies Authority (TRA) the House of Commons Select Committee has backed a number of recommendations made by George Peretz QC (who gave written and oral evidence to the Committee’s inquiry).

The TRA will, along with the Secretary of State for International Trade, administer after Brexit trade defence measures (anti-dumping duty, countervailing measures, and safeguard measures) permitted under WTO rules.

Among other matters, the Committee agreed with George that: –

  • the International Trade Select Committee should have a formal role in appointments as chair and chief executive of the TRA;
  • the TRA should not apply an “economic interest” test but that a decision to refuse trade defence measures on grounds of economic interest, as a political decision, should be reserved to the Secretary of State
  • the Bill should provide on its face that that there was a right of appeal to the Upper Tribunal against decisions to impose and to refuse trade defence remedies, and that such appeals should be “on the merits” rather than just by way of judicial review.

George’s detailed article on the Government’s proposals is here.

Professor Carl Baudenbacher in The Brief – Comment on how Britain can be a leader of outsiders after Brexit

Professor Carl Baudenbacher is the author of the “Comment” in today’s legal affairs bulletin, The Brief. Published by The Times and produced by Jonathan Ames and legal affairs editor Frances Gibb, The Brief compiles the most important and influential news in the legal industry on a daily basis. Professor Baudenbacher’s “Comment” explores how, if the UK should join forces with the four other EU outsiders to shape its relations with the EU, it could be the leader of an economically successful group of countries. Read the relevant edition of The Brief here.

Investigatory Powers Act not ‘general and indiscriminate’, says Divisional Court

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.

Tim Ward QC appointed to the Football Association (FA) Judicial Panel

The Judicial Services Department of the Football Association (FA) has selected Tim Ward QC as a member of the FA Judicial Panel as a Specialist Panel Member, with immediate effect. As such, Tim Ward will be eligible to chair Regulatory Commissions and Appeal Boards for personal hearings. This is the FA’s senior panel which hears the full range of cases in connection with disciplinary and other regulatory matters of football played in England, including on-the-field misconduct, doping, safeguarding, agent activity, and anti-discrimination.

This is not Tim Ward’s first sports panel appointment. In 2013, Tim was appointed to the Rugby Football Union panel, on which he continues to sit as an adjudicator hearing appeals concerning competition issues.