The sixth annual Sir Jeremy Lever lecture was held on Friday 24th February, to celebrate the career of Sir Jeremy Lever KCMG, QC, a pioneer of both the practice and academic study of competition law in Europe.
The lecture titled “Dispute Resolution In International Economic Agreements: The EU And Beyond” was given by Judge Christopher Vajda and chaired by The Right Honourable Lord Dyson.
The event was followed by a celebratory dinner at All Souls College.
In a judgment handed down this week, the Employment Tribunal dismissed all test claims brought by five firefighters alleging that transitional arrangements included in the Firefighters’ Pension Scheme 2015 are discriminatory.
The changes to firefighters’ pensions were part of the wide-ranging public sector pension reforms brought in after the 2011 Hutton Report concluded that since people are living longer, public sector pensions needed to be revised to make them sustainable for the taxpayer.
However, the claimants’ challenge was only to the transitional arrangements in the new pension scheme, whereby those firefighters within 10 years of pension age are protected by being able to remain in their existing pension scheme. There are also a further four years of tapered protection. It was alleged that such arrangements were directly discriminatory on grounds of age.
The Defendants – four Fire and Rescue Authorities, the Home Office and the Welsh Ministers – accepted that the transitional arrangements treat younger firefighters less favourably on the grounds of age, but argued that this is justified since it is a proportionate means of achieving a legitimate aim. The aim is to protect those closest to pension age from the effects of pension reform, given that they would have less time in which to rearrange their affairs before retirement, by making any necessary financial or lifestyle changes.
Judge Lewzey (sitting alone) accepted that this aim was legitimate, and that the treatment of the claimants was a proportionate means of achieving it, and accordingly the claims of direct age discrimination failed. The Tribunal also accepted that those closest to retirement have a greater legitimate expectation that their pension entitlements will not change significantly.
The claimants also brought claims for equal pay and claims of indirect discrimination on grounds of sex and/or race, as female and BME firefighters are disproportionately likely to be in the unprotected group. Male firefighters also brought ‘piggy-back’ equal pay claims. All claims failed.
Behind the five test claimants were over 5000 claims in England and Wales.
Similar claims had been successfully pursued in McCloud & Others v Ministry of Justice in relation to the transitional protection provided within the judges’ pension scheme. Judge Lewzey noted that the McCloud judgment of 16 January 2017 was not binding upon the Tribunal and that she must decide the firefighters’ case on the basis of the evidence and submissions she heard, and in those circumstances she disregarded the McCloud decision in reaching her conclusions.
Raymond Hill and Imogen Proud acted for the Home Office and the Welsh Ministers.
The High Court has heard a challenge brought by Campaign Against Arms Trade (“CAAT”) in respect of the granting of licences by the United Kingdom in respect of the sale of arms to Saudi Arabia for use in its military operations in Yemen.
Yemen is presently engulfed in a bloody civil war in which Houthi forces loyal to former president Ali Abdullah Saleh have launched an insurrection against the government of Abdrabbuh Mansur Hadi. A coalition of Gulf states is conducting air and ground operations in Yemen in support of the Yemeni government. Grave concerns have been raised about the conduct of these military operations. A wide range of international bodies, including the UN Security Council’s Panel of Experts on Yemen has concluded that the Coalition’s air strikes in Yemen are likely to have involved serious violations of the laws of war, including war crimes and possibly crimes against humanity.
CAAT seeks an injunction to prevent the licensing of further military equipment on grounds that there is a clear risk that such equipment might be used in serious violations of international humanitarian law.
Conor McCarthy, instructed by Leigh Day, is junior counsel for the Claimant.
Nikolaus Grubeck, instructed by Debevoise and Plimpton, is junior counsel in the proceedings for a coalition of intervenors (Human Rights Watch, Amnesty International and Rights Watch UK).
In a judgment in a test case handed down today, the Court of Appeal upheld tribunal judgments awarding a boy (known as “John”) £120,000 under the Vaccine Damages Payments Act 1979 (“the Act”).
It was agreed that John’s narcolepsy with cataplexy was caused by his vaccination against H1N1 flu in 2009. He has sudden attacks of day-time sleepiness and a tendency to collapse to the ground, as well as permanent severe tiredness. The uncontested evidence was that John’s condition is unlikely to improve as he grows up.
Under the Act, any person who suffers injury as a result of most types of routine vaccination is entitled to an award of £120,000 if they meet a test of “60% disablement”. The appeal dealt with various issues as to how 60% disablement was to be assessed.
The Tribunal looked at John’s disablement not just as it affected him as an 11-year old (his age at the time of the Tribunal decision) but at how it would affect him over his future life. The Tribunal took into account, in particular, the effects that narcolepsy with cataplexy would have on him as he becomes a young man, such as disruption to exams, inability to drive, and effects on his social life. The DWP said that that approach was wrong and that the Tribunal should have limited its consideration to how his condition affected John as an 11-year old.
The Court of Appeal dismissed the DWP’s appeal. It accepted John’s argument that the DWP’s interpretation was inconsistent with the fixed-sum nature of the scheme and that it “potentially turn[ed] the scheme into a litigation game” where entitlement to the award would depend on the exact timing of the claim and of appeals. The Court of Appeal also agreed with John’s case that the Tribunal had been entitled to refer, in support of its conclusion, to a statutory schedule of percentages of disablement used in industrial injury benefit cases, and noted John’s point that, under that schedule, a double leg amputee such as Oscar Pistorius would be 100% disabled.
The result is likely to affect over 100 other cases where narcolepsy with cataplexy has been caused by vaccinations in 2009-10 against H1N1 flu. The cases were the subject of a Channel 4 documentary broadcast in March 2015 (“The kids who can’t stay awake”) covered here.
George Peretz QC and Conor McCarthy acted for John. Further details about the case, and the other cases standing behind it, are available here.
Monckton barristers Thomas Sebastian and Professor Panos Koutrakos spoke at an event organised by UKLegalFuture at the House of Commons on 8 February 2017.
The topic of the event was ‘Brexit: The Future of International Trade’. It was chaired by Tim Ward QC and introduced by the Chairman of UKLegalFuture, John Davies (Freshfields). The audience consisted mainly of Members of both Houses, including the President of UKLegalFuture, Dominic Grieve QC MP.
Jonathan Faull (until recently Director General, European Commission, the most senior British EU civil servant and Head of the Task Force for negotiations with the UK) gave a keynote speech on ‘Leaving the EU but remaining part of Europe?’. He highlighted the legal and practical challenges of the negotiations between the UK and the EU and discussed the different stages that are prescribed in Article 50 TEU.
Professor Panos Koutrakos discussed the post-Brexit status of international trade agreements that currently apply to the UK. He outlined the legal and practical issues that arise from negotiating new trade agreements and examined the UK’s position in multilateral agreements (including the Unified Patent Court Agreement). His handout is available here.
Thomas Sebastian dealt with the so-called “WTO Option”. He addressed two questions of process: (1) Whether the UK will be able to rely on WTO rules post-Brexit even if other WTO Members object to its proposals for revised “schedules”? (2) Whether any post-Brexit UK-EU transitional arrangements will have to be approved by the WTO? His presentation is available here.
Lourdes Catrain (Hogan Lovells International) focused on the negotiation of the UK-EU agreement. She referred to the White Paper (The United Kingdom’s exit from and new partnership with the European Union) and explored the different options for the UK’s future relationship with the EU, with emphasis on customs and regulatory standards.
Chambers is delighted to announce that Anneli Howard and Thomas Sebastian have been appointed to the Attorney General’s Public International Law Panel as members of the “B” Panel.
Members of the Attorney General’s Public International Law Panel advise the UK Government on matters of public international law and represent the UK Government in international and domestic litigation.
There are now three members of Monckton Chambers on the Attorney General’s Public International Law Panel:
Public International Law B Panel Anneli Howard and Thomas Sebastian.
Public International Law C Panel Nikolaus Grubeck.
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”.
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.
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.
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.
