Nikolaus Grubeck are two of the ten barristers profiled in this year’s The Lawyer Hot 100

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Stephen Cragg QC and Nikolaus Grubeck have been named as two of only ten barristers in this year’s The Lawyer’s Hot 100, which “gathers together the best lawyers in the UK”.

Stephen Cragg QC is noted for his “busy human rights practice”, “packed with significant cases” including acting for a young woman from Northern Ireland  in the Supreme Court seeking access to NHS-funded abortion in England; “the biggest ever civil action against the police” in which just two of the 15 claimants involved were successful – both Stephen’s clients; and acting for members of the Labour party excluded from a right to vote in its leadership election. The profile concludes by highlighting a forthcoming Court of Appeal case on coronial jurisdiction, and recognising that Stephen has taken on more commercial work since joining Monckton Chambers two years ago.

The description of Nikolaus Grubeck highlights both the “impressive range of human rights cases” and the “major competition and regulatory matters” that are part of his practice. The profile features “just a few of the smorgasbord of cases” for the “busy junior” which includes the Labour leadership election membership exclusion, acting for the Afghan interpreters denied UK asylum, representing the Secretary of State for Health against the big tobacco companies in the challenge to the plain packaging Regulations, and acting for BT against Ofcom regarding the Wholesale Must Offer obligation. The description ends by noting that he “has work lined up for Human Rights Watch, Amnesty and Rights Watch UK on an arms trade case, alongside several meaty competition matters”.

Supreme Court rules that Government cannot invoke Article 50 under the Royal Prerogative

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The Supreme Court has this morning given judgment in the case of R(Miller) v Secretary of State for Exiting the EU [2017] UKSC 5.  In summary, the Court has (by majority of 8 to 3) dismissed the Government’s appeal against the Divisional Court’s judgment , and has ruled that the Government has no power under the Royal Prerogative to invoke Article 50 TEU.  An Act of Parliament is now required to authorise the executive to trigger the Article 50 process. As regards the additional devolution arguments made on behalf of Northern Irish citizens and the devolved Governments of Scotland and Wales, the Court has unanimously held that UK ministers are not legally compelled to consult the devolved legislatures before triggering Article 50.

The Supreme Court’s judgment can be found here.

The press summary can be found here.

A transcript of Lord Neuberger’s summary given in open court.

All the parties’ written cases.

To read the case note written by Fiona Banks, Monckton Chambers please click here.

The judgment, 96 pages long and containing detailed dissents from Lords Reed, Carnwarth and Hughes, will be discussed in detail by Gerry Facenna QC , Anneli Howard  and Jack Williams  at a forthcoming Monckton seminar this Thursday. For now a few matters are particularly noteworthy.

First, the Court’s judgment clarifies the proper framework for analysing prerogative powers. After establishing that a relevant prerogative power exists (see [34] and [54]), the next stage is to determine the extent of that prerogative power. This comes before any question of abrogation by statute arises. Thus, the Court delimits prerogative powers generally, and the foreign relations treaty prerogative specifically, in confirming that executive powers cannot change domestic law (see, in particular,  [50]-[57]). It was therefore unnecessary to consider subsequent questions of whether the relevant prerogative power had been excluded or abrogated by statute, or whether its purported exercise was otherwise unlawful, once the Court found that domestic law and rights would be affected if Article 50 were triggered by prerogative power (see [60] – [89]). As the Court stated, “rather than the Secretary of State being able to rely on the absence in the 1972 Act of any exclusion of the prerogative power to withdraw from the EU Treaties, the proper analysis is that, unless that Act positively created such a power in relation to those Treaties, it does not exist” ([86]).

Second, the Supreme Court upheld the Divisional Court’s two-pronged reasoning that prerogative power does not extend to either changing domestic law or affecting domestic rights (see [83]). This may have significant consequences for the use of prerogative powers in the international sphere where domestic or acquired rights would be affected, and is of potentially wider application than if the Court had confined its analysis to circumstances where acts on the international stage result in changes to the (domestic) constitutional framework. It may, combined with the findings in relation to the principle of legality ([87]), have implications for what the authorisation bill needs to cover.

Third, the judgment lays to rest the heated academic debate as to whether a preliminary reference was required on the reversibility of Article 50 for the purposes of this litigation. The Court stated, in accordance with the Secretary of State’s own case, that the reversibility of otherwise of an Article 50 notification “would make no difference to the outcome of these proceedings” ([26]). As such the Court was prepared to proceed on the assumption that an Article 50 notification was unilaterally irrevocable (as all parties in the litigation agreed was prudent), without deciding the issue or expressing any views either way on the matter.

Finally, the Court’s ruling on the Sewel Convention reiterates that constitutional conventions are a political constraint only which, whilst playing an important role in the operation of the UK constitution, are not for the Court to police in terms of their scope and application (see [136] – [151]). The reservations for ruling on the scope of a convention may be slightly surprising to some (the courts have previously ruled on the nature and scope of conventions, if not enforcing them).

Anneli Howard is instructed by Mischcon de Reya to represent Mrs Gina Miller, the First Respondent.

Gerry Facenna QC, David Gregory, and Jack Williams are instructed by Bindmans LLP on behalf of the Pigney Respondents/Interested Parties (known as “The People’s Challenge”).

All views are entirely personal and do not represent the views of other Members of Monckton Chambers or clients.

New Appointment to the Attorney General’s Panel of Crown Counsel

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Chambers is delighted to announce Michael Armitage has been appointed to the C panel of the Attorney General’s Panel of Crown Counsel, with effect from 28 February 2017.

In total, there are 20 members of Monckton Chambers currently AG Junior Counsel to the Crown:

London A Panel Raymond Hill, Andrew Macnab, Peter Mantle, Robert Palmer, Valentina Sloane, Ben Lask, Rob Williams and Anneli Howard.

London B Panel Alan Bates, Julian Gregory, Josh Holmes, Ronit Kreisberger, Brendan McGurk, Ewan West, and Eric Metcalfe.

London C Panel Anneliese Blackwood, Tarlochan Lall,  Julianne Kerr Morrison and Michael Armitage.

Public International Law C Panel Nikolaus Grubeck.

Single market challenge: Adrian Yalland and Peter Wilding v SSEU (Article 127 EEA)

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Monckton Chambers’ members are advising on a challenge to the Government’s plan for the United Kingdom to leave the single market. The claim was commenced by two members of the think-tank British Influence on 29 December 2016.  The claim challenges the Government’s statement that the United Kingdom automatically leaves the European Economic Area following its departure from the EU under Article 50 TEU.  It seeks a declaration that the United Kingdom can only leave the single market by following the formal withdrawal procedure under Art 127 of the EEA Agreement and with Parliament’s prior authorisation in the form of an Act of Parliament.

A permission hearing has been listed before the Divisional Court on 3rd February, which will also deal with a parallel claim brought by four individuals who live in the UK or in other EEA States.

George Peretz QC and Anneli Howard are acting for the claimants Adrian Yalland and Peter Wilding.

Daniel Beard QC and Julianne Kerr Morrison are acting for the Government.

The case has already received extensive coverage including The Times and The Guardian.

CAT dismisses claim for interim relief in Phenytoin challenge

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The Competition Appeal Tribunal (Peter Freeman QC) has rejected an urgent application by Flynn Pharma for interim relief against the CMA’s decision that Flynn should reduce its prices of Phenytoin capsules with effect from Monday.  The Directions form part of the CMA’s decision of 7 December 2016 in which it found that Flynn’s prices (and those of its supplier Pfizer) were excessive.  Flynn and Pfizer both intend to appeal against the CMA’s Decision.

Flynn brought an application for interim relief to prevent the Directions from taking effect until its appeal had been resolved.   Flynn argued that the Directions would cause it serious and irreparable harm including financial losses, a potentially permanent effect on market prices and changes to the organisation of its business.  Flynn offered a cross undertaking to protect the NHS against financial losses which interim relief would cause.  The CMA opposed the application and the Department of Health intervened in support of the CMA.

The Tribunal found that the grant of interim relief would take funds out of the NHS which would otherwise be used to treat patients in need of care in the period pending the appeal.  This would cause irreversible harm to the patients in question.  The Tribunal found that this non-financial harm was detrimental to the public interest, and was the very harm which the Decision was intended to prevent.  The Tribunal ruled that this outweighed any harm which the Directions would cause to Flynn.  It also identified difficulties in applying the cross undertaking which Flynn had proposed.

The application is the first to be decided under the new rule 24 of the Tribunal’s Rules of 2015 which the Tribunal found establishes a new jurisdictional threshold for interim orders.

The judgment can be found here.

Ronit Kreisberger acted for Flynn Pharma.

Rob Williams acted for the CMA.

Brendan McGurk acted for the Department of Health.

CJEU disagrees with Advocate-General on meaning of competition and fiscal neutrality in VAT Directive.

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Article 13 of the VAT Directive exempts public bodies from VAT except where this would lead to significant distortions of competition. The decision in Case C-288/07 Commissioners of Her Majesty’s Revenue & Customs –v- Isle of Wight Council (2008) ECR I-7203 appeared to say that if the public body and private operators carry on an activity of the same nature, then fiscal neutrality requires that they both be subject to VAT but where the nature of the economic analysis of the distortion of competition (if any) to be carried out was very unclear. In particular, it remained unclear whether a distortion of competition was to be presumed in such circumstances. In Case 344/15 National Roads Authority v Revenue Commissioners, the Advocate General Spzunar on 8th September 2016 expressed the view that even though there was no evidence of actual competition between the Irish public operator of two toll roads (the NRA) and private toll road operators, fiscal neutrality required that the NRA should be subject to VAT on the tolls it charged in the same way as private operators because the two activities were similar in nature so that a distortion of competition must be presumed.

In a decision handed down on 19th January 2017 the CJEU took a different view. The CJEU stated that while the general principle was that any economic activity was to be subject to VAT, that principle could not be applied in a way which deprived the exemption for public bodies of its effectiveness. Treating a public body as non-taxable requires an assessment of economic circumstances. The exception in relation to significant distortions of competition “[43]….presupposes, first, that the activity in question is carried on in competition, actual or potential, with that carried on by private operators and, secondly, that the different treatment of those activities for VAT purposes leads to significant distortions of competition, which must be assessed having regard to economic circumstances. [44] It follows that the mere presence of private operators on a market, without account being taken of matters of fact, objective evidence or an analysis of the market, cannot demonstrate the existence either of actual or potential competition or of a significant distortion of competition.” Since there was no economic analysis or evidence that the NRA competed (actually or potentially) with the private operators, the Court held that the NRA should not be regarded for the purposes of Article 13 as competing with private operators.

Michael M. Collins SC acted for the National Roads Authority.

Please click here for the full judgment.

The magical mystery tour: the Brexit negotiations from an EU perspective

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On 17 January, Christopher Muttukumaru CB spoke to a large group of lawyers and administrators in the Dutch Ministry of Infrastructure and Environment about the imminent Brexit negotiations. The group included officials from other Government departments, including Foreign  Affairs.

He covered  the UK  Prime Minister’s speeches on Brexit. He explored legal aspects of the principal issues that the Dutch Government will face as the Brexit negotiations gather pace.

The issues included the lack of legal clarity and consistency that will result if the jurisdiction of the Court of Justice of the EU is removed in relation to those parts of the Single Market rules which will continue to apply to the UK.

The discussion also covered the complexity of the proposal to replicate in domestic law the  provisions of the EU acquis in a Great Repeal Bill. There is clear evidence that that exercise will not be a simple technical transfer to UK domestic law. In the environmental field, for example, the DEFRA Secretary of State has already accepted that one third of the environmental acquis is not capable of simple replication.

With the loss of Commission responsibility for enforcement in a post-Brexit world, there was lively discussion about the alternatives.

Supreme Court hands down three judgments in landmark human rights cases – Serdar Mohammed, Al Waheed, Belhaj and Rahmatullah

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The Supreme Court has handed down three important judgments which are expected to have significant impact on the protection of human rights overseas.

Serdar Mohammed v Ministry of Defence & Al Waheed v Ministry of Defence [2017] UKSC 2 (available here) concerned the capture of individuals by UK forces in Afghanistan and Iraq. Following two hearings before a nine-member Supreme Court, the Court held by a majority of 7 to 2 that the UK had authority to detain individuals pursuant to the United Nations Security Council Resolutions authorising the use of all necessary measures if the detention was found to be required for imperative reasons of security – a matter that will be determined by the trial judge in both cases. However, the Court further held by majority of 6 to 3 that the procedural protections afforded to detainees in Afghanistan had in any event been inadequate (there were no findings regarding the procedures in Iraq before the Court).

Belhaj and another v Straw and others & Rahmatullah (No.1) v Ministry of Defence and Foreign and Commonwealth Office [2017] UKSC 3 (available here) concerned the UK’s involvement in the capture and rendition of individuals abroad. A seven-member Supreme Court dismissed the Government’s appeal, holding that the Defendants could not rely on state immunity or foreign act of state and that the cases should proceed to trial.

Rahmatullah (No.2) v Ministry of Defence & Mohammed and others v Ministry of Defence [2017] UKSC 1 (available here) concerned tort cases brought by the Claimants under the law of Iraq and Afghanistan. A seven-member Supreme Court held that the Defendant could rely on the doctrine of Crown Act of State and that insofar as the claimants’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, the Government cannot be liable in tort.

Nikolaus Grubeck is acting for Serdar Mohammed, Al Waheed and Rahmatullah.

Julianne Kerr Morrison is acting for Serdar Mohammed.

Josh Holmes – new Queen’s Counsel for Monckton

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Monckton Chambers is very pleased to announce the appointment of Josh Holmes to Queen’s Counsel.

The official swearing-in ceremony will take place on 13 February 2017.

The members and staff of Chambers warmly congratulate Josh on his new appointment.

The full list of QC appointments, announced on the 12 January,  can be viewed on the QCA website.

Anneli Howard advises The Civil Aviation Authority (CAA) in its first competition investigation as East Midlands International Airport Limited (EMIA) and Prestige Parking Limited admit to price fixing.

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The CAA has issued a final infringement decision that East Midlands International Airport Limited (EMIA) and Prestige Parking Limited broke competition law by agreeing to fix prices of car parking services at East Midlands International Airport.  See full CAA press release.

Anneli  Howard , acting as the CAA’s Standing Counsel, advised the CAA from the outset of the investigation, including the transfer of the case from the CMA under the concurrency regime, leniency and settlement process, evidence gathering, witness interviews, assisting with drafting the SO and the final decision.