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.
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.
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.
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.”
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.
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.
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.
On 4 October 2017, Mrs Justice Rose dismissed claims by Emerald Supplies Limited and other claimants seeking damages alleged to have been caused in relation to alleged overcharges for flights between the EU and third countries prior to 1 May 2004, and alleged overcharges for flights between the EEA and third countries prior to 19 May 2005. For the Judgment see here. The principal issues concerned whether Article 101 of the Treaty on the Functioning of the European Union applied in the international air transport sector before those dates and/or whether Regulation 1/2003 changed the position as to the powers of a national court retrospectively in relation to those periods. At a hearing on 1 December 2017 Mrs Justice Rose granted Emerald Supplies and other Claimants permission to appeal to the Court of Appeal.
The following Monckton barristers are instructed in the case:
Philip Moser QC, Ben Rayment, Anneliese Blackwood and Conor McCarthy are instructed by the Claimants.
Jon Turner QC, Michael Armitage and Stefan Kuppen for British Airways PLC
Daniel Beard QC and Thomas Sebastian for airlines facing Part 20 Contribution Claims.
Today, Panos Koutrakos was invited to give evidence on the implications of Brexit for the UK’s status under multilateral Environmental agreements to the House of Commons Environmental Audit Committee. The Committee is carrying out an inquiry on the UK progress on reducing Fluorinated gas (F-gas) emissions.
David Unterhalter SC has been appointed to the High Court bench in South Africa. David, who joined Monckton Chambers in 2009, is one of South Africa’s foremost barristers, with a leading practice in competition law, trade law, public law and commercial law. Mr Justice Unterhalter will be assigned to the Gauteng Division of the High Court of South Africa and will be taking up his position in Spring 2018.
