Gender Reassignment – The Legal Saga Continues

Written by

The Upper Tribunal has given judgment in the latest round of litigation concerning the compatibility of the UK’s legislative scheme for gender reassignment with EU law. In Secretary of State for Work and Pensions v HY (RP) [2017] UKUT 303 (AAC), the Upper Tribunal allowed the Secretary of State’s appeals against two decisions of the First-tier Tribunal. It held that the requirement in the Gender Recognition Act 2004 to obtain a Gender Recognition Certificate as a condition for claiming a state requirement pension in one’s acquired gender was compatible with Council Directive 79/7/EEC on equal treatment in matters of social security.  This was the case notwithstanding that such Certificates had prospective effect only.

Ben Lask acted for the Secretary of State. Brendan McGurk acted for the claimants.

To read the case note please click here.

NHS England’s refusal to fund treatment for 7 year-old boy unlawful

Written by

Mrs Justice Andrews has found the decision of NHS England to refuse to fund treatment for a 7 year-old boy with an inherited metabolic disorder, Phenylketonuria (PKU), to be irrational and unlawful. PKU is a condition which inhibits the ability to digest protein and prevents the body from breaking down an amino acid called phenylalanine. High levels of phenylalanine can cause permanent brain damage. The claimant, S, was unable to control his intake of protein due to his autism and so his consultant sought funding approval for sapropterin dihydrochloride (Kuvan) from NHS England. Kuvan is not currently approved by NHS England for funding for children although it is approved by the European Medicines Agency and is widely prescribed in countries across Europe including France and Romania. Despite the evidence that S’s phenylalanine levels were above the safe level and so putting him at risk of brain damage NHS England refused his consultant’s request for funding. In a detailed judgment which is highly critical of the approach taken by NHS England, Mrs Justice Andrews found the decision to be irrational and unlawful. The decision was quashed and now has to be retaken in light of the judgment and any further clinical evidence presented by S’s consultant.

S was represented by Ian Wise QC and Steve Broach, instructed by Hodge Jones and Allen.

The full judgment can be found here.

This is covered by the BBC here and The Guardian here.

Anneli Howard advises on first formal CAA investigation under the Transport Act 2000

Written by

Anneli Howard, as Standing Counsel for the UK Civil Aviation Authority (CAA), helped to coordinate the year-long investigation, evidence analysis and consultation process in response to complaints from Ryanair and Stansted Airport that staff shortages in NATS (En Route) Plc (NERL), the UK’s largest air traffic controller, was responsible for flight delays at Stansted Airport in 2016. Using its mandatory investigatory powers for the first time under section 34 of the Transport Act 2000, the CAA concluded that no compliance breach had been found in terms of the air traffic controller’s licence obligations, but did make recommendations for enhancements to NERL’s business practices, which include improving the resilience of its operations and contingency planning. In addition the CAA committed to increase its own oversight of NERL to address resilience issues.

See CAA news release here.

New Welsh Government Advocates – four Monckton members appointed

Written by

Ian Rogers QC and George Peretz QC  have been appointed to the Welsh Government Panel of Queen’s Counsel, whilst Laura John and Conor McCarthy are among the Junior Counsel B Panel appointments. Ian Rogers QC undertook a wide range of EU, competition and public law work on the Welsh Government’s A Panel of Junior Counsel prior to taking silk.

In order to be appointed, candidates had to satisfy a number of criteria, including experience of advocacy in the higher courts, experience in constitutional and administrative law, knowledge of the devolution settlement in Wales and of divergences between the law in England and in Wales, experience of working for or against government or other public bodies and an appreciation of the particular characteristics of government litigation.

Appointments will be for a period of four years initially. Members of the Panel continue to practise independently.

With four members, Monckton Chambers has the most significant representation in the list of 18 appointments made today to the Panel of Counsel approved to provide advocacy and advisory work for the Welsh Government across the breadth of its statutory functions and responsibilities. Our team of Welsh Government Panel members is exceptionally well placed to assist with the unprecedented constitutional challenges presented by the steady growth in Welsh law and the evolving devolution settlement, particularly when considered against the backdrop of Brexit, as our members are in relation to the other nations of the United Kingdom.

The Brexit Competition Law Working Group (BCLWG) – conclusions and recommendations on the implications of Brexit for UK competition law and policy now published.

Written by

On the 26th July 2017, The Brexit Competition Law Working Group (BCLWG), chaired by Sir John Vickers, published its report which focuses on the impact of Brexit on the various elements of the UK competition regime and the consequent practical implications for enforcement of the competition rules.

Jon Turner QC is a member of the BCLWG and Julian Gregory has been helping the group with its work.

The full report can be read here.

The BCLWG’s summary and conclusions of the report are as follows:

1. Our view is that the interests of the UK economy, and those of businesses and consumers within it, will be best served by continuity of UK competition law and policy, so far as is possible following Brexit.

2. Brexit does not give cause for radical reform of the principal UK competition statutes, nor of the role of the competition authorities. Indeed, the challenges that Brexit poses to the effective operation of various areas of competition policy argue against contemplation of radical reform, at least for the time being.

3. Primary legislation will nevertheless require amendment. In particular, we recommend that the duty in section 60 CA98 for the UK authorities and courts to act consistently with European jurisprudence becomes simply a duty to ‘have regard to’ that jurisprudence.  We also recommend repeal of section 10 CA98 so that future (as distinct from existing) EU block exemptions from the competition rules are not automatically imported into the UK; they would instead become a matter for the UK to decide.  Brexit should cause some current exemptions, notably that for agricultural products, to fall away.  As to the territorial scope of CA98, there is a strong case for revising section 2(3) so that agreements with anti-competitive effects in the UK do not escape prohibition by virtue of being ‘implemented’ outside the UK.  To preserve continuity of the ability of private parties to bring actions for damages in the UK for breaches of EU (as well as UK) competition law, we recommend retaining the provisions of sections 47 and 58 CA98.

4. For mergers and market investigations we recommend retaining the existing statutory criteria, notably the ‘substantial lessening of competition’ test for mergers. Likewise, we would not vary the existing public interest criteria.  For market investigation references, while the CMA should not have an unfettered discretion in its choice of legal instrument when investigating agreements that might be harmful to competition, we recommend against retaining a domestic analogue of the current EU provision that precludes remedies relating to agreements between firms that go further than the antitrust rules.

5. Brexit poses formidable issues concerning transitional arrangements, future cooperation between UK and EU authorities, and the resources that the CMA will need to carry out a substantially expanded caseload. In relation to transition issues, we have made a series of recommendations on the carrying forward of commitments from past antitrust and merger cases, and of leniency arrangements.  Particularly difficult issues could arise in relation to mergers that ‘straddle’ the date of Brexit, and (in the longer run) parallel UK/EC investigations, both of mergers and antitrust issues.  These do not have easy solutions but we identify ways to ameliorate them, and stress the importance of measures being taken and communicated well ahead of the date of Brexit.  These are matters in relation to which the UK and EC authorities should have strong interests in common.

6. On resources we note that, beyond transitional issues, the CMA is likely to have a substantial number of large and complex merger cases each year that would previously have been reviewed by the EC (including for effects on UK markets). Even with some adjustment of CMA priorities and procedures (transfer of powers to other bodies should be avoided), a substantial increase in resources will be needed if other activities are not to get squeezed.  This resource will need to be in place by Brexit, if other important elements of the CMA’s work portfolio are not to be squeezed out by urgent and non-discretionary mergers work. Over time, the CMA is also likely to require additional resources for its antitrust enforcement work.  Bearing in mind merger filing fees and competition fines, this need not involve cost to the public purse.

7. There are aspects of EU competition law that this report has not addressed – notably state aid, which will no longer apply to the UK after Brexit. As selective industrial subsidies are generally costly to the economy and distort competition inefficiently, the UK should be open to agreeing to adopt an equivalent to the EU state aid regime domestically

CAT allows BT’s appeal against Ofcom’s BCMR

Written by

 

The Competition Appeal Tribunal has issued a ruling declaring that Ofcom erred in its Business Connectivity Market Review (BCMR), and quashing the market definition decisions upon which Ofcom’s “dark fibre” remedy was based.

In its BCMR Statement, which was published in April 2016, Ofcom defined various markets for the provision of “business connectivity” services, used by companies to carry data between locations. Ofcom defined a single product market for contemporary interface symmetric broadband origination (“CISBO”) services of all bandwidths; and four separate relevant geographic markets: the Central London Area; the London Periphery; Hull; and the Rest of the UK. Ofcom also made determinations concerning the extent of BT’s core network. Ofcom found that BT had significant market power (“SMP”) for CISBO services outside Central London and Hull, and proposed a package of remedies including a so-called passive remedy allowing Communications Providers to lease only the fibre element of the leased lines from BT, allowing them to attach equipment of their own choosing at either end to “light” the fibre. This remedy was referred to as Dark Fibre Access (“DFA”) and was to be implemented in October 2017.

BT appealed on the grounds that Ofcom had erred in its Product Market Definition, in that Ofcom had failed to identify a separate product market for Very High Bandwidth (“VHB”) services of 1 Gbit/s and above, in which BT does not have SMP. BT also argued that Ofcom had erred in its approach to the Geographic Market Definition, and in its determination of the boundary between the (competitive) core segments of BT’s network and other terminating segments. BT further argued that the dark fibre remedy was disproportionate, including because it would undermine infrastructure based competition for VHB services from providers such as Virgin Media and CityFibre.

A hearing took place in April-May 2017 over sixteen hearing days, in which the Tribunal heard BT’s arguments in relation to market definition and the competitive core. Yesterday, the CAT issued a ruling on those issues. The CAT has unanimously decided that Ofcom erred in defining a single product market, in concluding that the UK outside London (and Hull) comprises a single geographical market, and in its determination of the boundary between core and terminating parts of BT’s network. Those decisions will be quashed and remitted to Ofcom for reconsideration. The CAT is still preparing its reasoned judgment for its conclusions, which will be handed down in due course.

The imposition of the DFA remedy was contingent on the correctness of Ofcom’s market definition analysis. A further hearing of the remedies issues raised by BT had been scheduled for September 2017, to allow those issues to be considered, if appropriate, before the implementation date of the DFA remedy. Given that Ofcom’s market definition will now need to be reconsidered, the hearing has been vacated.

Daniel Beard QC, Robert Palmer, Ligia Osepciu and David Gregory represented BT.

Josh Holmes QC represented Ofcom.

Philip Woolfe represented a group of communications providers including TalkTalk, Vodafone, Colt and Hutchison 3G.

The ruling has already been reported by the Financial Times and the Daily Telegraph.

FTT rejects challenge to restitution interest provisions of the Corporation Tax Act 2010

Written by

In a decision released on 12 July 2017, the First-tier Tribunal (Tax Chamber) has dismissed the BAT group’s EU law, ECHR and common law challenges to the restitution interest tax provisions of Part 8C of the Corporation Tax Act 2010.  Part 8C, introduced in October 2015, imposes a charge to corporation tax at the rate of 45% on restitution interest (essentially, compound and other interest awarded against the Crown in claims for restitution of unlawfully levied tax or tax paid under a mistake of law) arising to a company.  The Part 8C charge is ring-fenced and not capable of being offset by reliefs, etc.

The FTT (Judge Berner) held that the provisions were compatible with (a) BAT’s directly effective EU law rights (including the principles of effectiveness, protection of legitimate expectations and proportionality, and rights derived from the EU Charter of Fundamental Rights); (b) BAT’s Convention rights under the ECHR (including under A1P1 and Article 6); and (c) BAT’s common law rights.

The decision is available here.

Andrew Macnab and Jack Williams represented HM Revenue & Customs (led by Alison Foster QC (39 Essex Chambers) and Philip Baker QC (Field Court Tax Chambers); alongside Aparna Nathan (Devereux Chambers) and Elizabeth Wilson (Pump Court Tax Chambers)).

TCC Guidance Note on Public Procurement Cases: NOW IN FORCE

Written by

As of today, 17 July 2017, the new TCC Guidance Note on Procedures for Public Procurement Cases is in force.

A copy of the Guidance Note is here.

Speaking at the launch of the Guidance Note at the Rolls Building Mr Justice Coulson confirmed that parties would be expected to have regard to the guidance contained in the Note from today. The Guidance Note was approved by the Master of the Rolls and will form Appendix H to the TCC Guide, to be published in the next supplement to the White Book.

The TCC Guidance Note on Procedures for Public Procurement Cases was drafted by a working group of TCC judges and practitioners.

Philip Moser QC and Rob Williams of Monckton Chambers were members of the TCC Working Group.

 

5th edition of ‘EU Merger Regulation: Substantive Issues’ published

Written by

The 5th edition of ‘EU Merger Regulation: Substantive Issues’ by Alistair Lindsay and Alison Berridge, both of Monckton Chambers, has been published.

The new edition examines recent developments in EU merger control law and practice, covering for example the Commission’s increasing use of quantitative analysis, recent cases on loss of innovation competition and new practice in “failing division” cases.

For more information, or to purchase the book, please click here.

Groundbreaking Administrative Court judgment finds that young child is entitled to damages following absence from education

Written by

In  R (E) v London Borough of Islington [2017] EWHC 1440 (Admin) the Administrative Court has held that a local authority is liable in damages to a young child (E) for breach of her human right to education under Article 2 of the First Protocol to the European Convention on Human Rights (A2P1). The Court (Ben Emmerson QC, sitting as a Deputy High Court Judge) also found that the local authority’s assessment of E’s care needs was vitiated by misguided reasoning and therefore unlawful.

The successful education claim marks the first occasion on which the English Courts have upheld a damages claim based on a breach of A2P1, after two Supreme Court judgments as a result of which such claims had failed (A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363 and A v Essex County Council (National Autistic Society intervening) [2011] AC 280; [2010] UKSC 33).  In the present case, E’s claim concerned three separate periods during which (the Court held) Islington was responsible for providing her with full-time education but – for one reason or another – failed to secure it. Notably, during one of those periods, Islington had accommodated E and her family in temporary homelessness accommodation in another London borough, and yet the Court was satisfied that Islington bore primary responsibility for the breach of E’s A2P1 rights during that period also.  The case will therefore be of interest not only because it is the first example of a successful damages claim based on A2P1 in this jurisdiction, but also because of its implications for local authority’s duties towards homeless children of compulsory school age, including those that they elect to accommodate in a different local authority district.

Following a contested hearing on consequential matters, E was also awarded 100% of her costs, and successfully opposed the local authority’s application for permission to appeal. Having found that E is entitled to damages by way of just satisfaction under section 8 of the Human Rights Act 1998, the Court has also set down a procedure for the determination of quantum.

Monckton’s Ian Wise QC and Michael Armitage acted for the successful Claimant throughout the proceedings, instructed by Rebekah Carrier of Hopkin Murray Beskine solicitors.