European Court of Justice rules that licence application fees charged to sex shop were unlawful

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The Court of Justice of the EU today ruled (here) that fees charged by Westminster City Council to an applicant for a licence to operate as a sex shop were unlawful.

Mr Hemming, trading as “Simply Pleasure Ltd”, challenged the application fees he had to pay to Westminster for a licence to operate a sex shop.  Those fees amounted to over £29,000.  The fees broke down into two parts: about £2,500 covered the cost of processing the application, while the remaining £26,500 odd covered Westminster’s costs of policing compliance with licensing requirements and tackling unlicensed operators.  That latter amount was refundable if the licence was refused.

Mr Hemming relied on Article 13(2) of the Services Directive (Parliament and Council Directive 2006/123/EC), implemented into UK law by regulation 18(4) of the Provision of Services Regulations 2009.  That provision requires that charges which an applicant may incur from its application shall not exceed the cost of the procedures (and must also be proportionate and reasonable).

In a judgment given in May 2015 ([2015] UKSC 25), the Supreme Court agreed that Article 13(2) excluded costs of enforcement, such as tackling unlicensed operators, from the scope of costs for which an application charge could be made.  But it held that Article 13(2) did not prevent a body which was successful in its application from then being charged a further fee to cover enforcement costs: such a fee was not a charged incurred from the application but, rather, a fee incurred for the possession of a licence.  However, the Supreme Court considered that there was doubt as to whether a fee charged at the time of application but which was refundable if the application was unsuccessful – which was the position in the case before it – amounted to a charge, and referred that question to the Court of Justice.

The Court of Justice has today ruled that an application fee payable at the time of submitting an application is a “charge” under Article 13(2) even if it is refundable if the application fails.  It remained a “financial obligation” that must be discharged before an application could be considered.

The Supreme Court judgment sharply distinguished between an application fee and a fee payable once the application is successful.  The Court of Justice did not deal with that distinction.  However, it may be noted that in his Opinion (here), Advocate General Wathelet stated that if, having succeeded in its application, the successful applicant’s permission to operate was then made conditional on payment of a fee designed to cover enforcement costs, then in reality that further fee should be regarded as a charge falling under Article 13(2).  He also expressed doubts that a fee designed to cover enforcement costs – which he described as a “fee enabling members to benefit from the certainty that membership of the ‘club’ will remain restricted” – could ever be reasonable or proportionate.  The Court of Justice, however, did not express a view on those points.

The case has implications going beyond the sex shop industry: indeed, a number of professional bodies that charge fees for authorisation to practise (including the Law Society and the Bar Council) intervened before the Supreme Court, as did HM Treasury.

George Peretz QC appeared in the Supreme Court for HM Treasury.

Chambers Bar UK 2017 – Monckton is Band One Set in six areas with 46 members ranked as “leading” individuals

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The recently launched  Chambers Bar UK 2017 ranks 46 individual barristers across17 practice areas with many appearing in multiple categories.

Monckton Chambers is one of the most highly ranked sets in the UK as it has been recommended in ten practice areas; in six of these, Monckton is recognised as a “Band One” leading set:

  • Competition
  • European Law
  • Telecommunications
  • Public Procurement
  • Indirect Tax
  • Community Care

The Set has also been ranked in a further 4 areas:

  • Administrative and Public Law
  • Data Protection
  • Sports Law
  • Environment

Individual members were also recognised as “Leading Individuals” in further seven categories:

  • Aviation
  • Civil liberties and Human Rights
  • Construction
  • Education
  • Immigration
  • Local Government
  • Police Law

Client comments include “They are at the top of their game, they are responsive and they are very good communicators“, “an outstanding array of barristers” and a “dynamic set is lauded for its impressive track record”.

Client service has been praised with feedback such as “This is an incredibly professional and slick outfit, and it is always reassuring to speak to one of the clerks there,”  and  “The clerking has been absolutely perfect. I think head clerk David Hockney runs a very sharp operation there”.

For further details visit the Chambers & Partners website.

Monckton Chambers – “biggest mover at the commercial bar this year”, confirms The Lawyer

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Analysis conducted by The Lawyer magazine for its annual UK 200 report has Monckton Chambers  leading the table of “Top 10 chambers by fee income growth”.  The research concluded: “The most impressive growth overall this year was in the middle of the table. Monckton Chambers climbed eight places in the rankings, making it the biggest mover at the commercial bar this year. It posted a 34 per cent rise in fee income to £34m despite its static member headcount. This continues a run of good financial years for the competition-focused set, which also boosted fee income by 7 per cent in 2014/15.”Read Tabby Kinder’s full article here.

Government Wins Article 50 Challenge In High Court Of Northern Ireland

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In a judgment released this morning the High Court of Northern Ireland (Maguire J) rejected various challenges brought under Northern Ireland law to the Government’s position that it can invoke Article 50 TEU under the Royal Prerogative.

The challenges that were decided by the Court were all based on aspects of the constitutional settlement in Northern Ireland.  The Court did not consider the more general issues that have been raised before the High Court in England and Wales (where judgment is awaited).

The first challenge was based on an argument that the Northern Ireland Act 1998 and the Good Friday Agreement displaced the Royal Prerogative in relation to Article 50.  The Court rejected that argument: Article 50 set in train a process that might lead in a number of directions, and any change in domestic law would have to be made by Parliament.  Although continuing membership by the UK of the EU was assumed at the time of the Good Friday Agreement, membership could not be described as a “constitutional bulwark” of those arrangements.

The second challenge was an argument that any legislation passed in order to trigger Art.50 would need the consent of the Northern Ireland Assembly.  Given the answer to the first question, that issue was academic: but the judge did not consider that consent was a legally enforceable requirement.

The third challenge was an argument that, by reference to Northern Ireland legislation, the Government gave undue weight to the referendum result in taking the decision to invoke Article 50: the judge however considered that the decision to invoke Article 50 was of high policy and not justiciable.

The fourth argument was based on a claimed failure by the Northern Ireland Office to follow Northern Ireland equality legislation: the judge however held that the decision to invoke Article 50 could not be said to be carrying out a function relating to Northern Ireland and was outside the scope of that legislation.

The fifth argument was that the consent of the people of Northern Ireland was needed for Article 50 to be invoked: the judge found no basis for that argument.

The Northern Ireland case is likely to be joined, in the UK Supreme Court, with the (inevitable) appeal against the judgment of the English High Court.  The judgment deals only with points that are distinct to Northern Ireland and generally gives little clue as to how the English case may be decided.  That said, it is worth noting (a) that the Judge approached the question as a matter of statutory construction (which accords with the thrust of the Government’s submissions to the English High Court and (b) that the Judge seems to have proceeded on the basis that a notification under Article 50 was the start of a process rather than, of itself, producing changes in domestic law.  Readers of this blog will remember that, in the English cases, both parties proceeded on the basis that Article 50 was irreversible.  The litigation, on both sides of the Irish Sea, may well end up turning on precisely how the Article 50 process is characterised – although, for reasons I set out here I still consider it highly unlikely that the Supreme Court will need to make a reference to the Court of Justice of the EU on the question of whether an Article 50 notification can be withdrawn by the Member State concerned.

Chambers Bar Awards 2016 – Monckton Chambers Competition Success and Paul Lasok QC receives Lifetime Achievement award

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Monckton Chambers won the award for Competition Set of the Year at last night’s Chambers Bar Awards. In addition, Paul Lasok QC, former Head of Chambers, was recognised with a Lifetime Achievement award.The Chambers Bar Awards are based on research for the 2017 edition of Chambers UK Bar and reflect pre-eminence of sets of chambers and individual members in key practice areas. They also reflect notable achievements over the past 12 months including outstanding work, impressive strategic growth and excellence in client service.

Paris Conference on Future of the ECHR

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On 19th October Piers Gardner spoke at the Council of Bars and Law Societies of Europe (CCBE) Conference in Paris, held at the National Council of the Bars of France, on the Future of the ECHR.

At the Conference the CCBE Permanent Delegation to the European Court of Human Rights (of which Piers Gardner is the UK Member) launched the new Guide for Practitioners representing Applicants before the Court. The Guide is a revised second edition of the original Guide and reflects recent changes in rules and practice before the Court. It is available here.

The new version of the Guide (in English and French and soon to be translated into additional languages) includes a foreword by Judge Raimondi, President of the European Court of Human Rights, in which he expressed himself ‘delighted with the work done by the CCBE, which allows lawyers and applicants to better understand [the Court’s] procedures’.

Please click here to read Piers Gardner’s remarks to the Conference.

Article 50 Challenge: Update from Day Two

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The hearing continued yesterday of the judicial review challenging the Government’s position that it can trigger Article 50 without recourse to an Act of Parliament. The full transcript is available here, or you can read our summary below.

The day began with the Court raising the issue that the lead claimant, Ms Gina Miller, has received threatening and abusive emails. The Lord Chief Justice said that this was “wholly wrong” and that if “this conduct continues, those who do it must appreciate that the full vigour of the law will be used to ensure that access to Her Majesty’s courts are freely available to everyone“.

Helen Mountfield QC continued her submissions, on behalf of the People’s Challenge, that triggering Article 50 will inevitably remove a range of fundamental rights, which apply directly to UK citizens and which are recognised in domestic law, and that removing rights in this way falls within the domain of Parliament rather than the Crown. She also argued that using the royal prerogative to trigger Article 50 would be contrary to the English Bill of Rights, the English and Scottish Acts of Union, and the devolution statutes.

Patrick Green QC appeared for the “Expat Interveners” – persons residing in other EU countries with EU law rights in those countries derived from UK citizenship – and focussed on the effect of triggering Article 50 on their rights of residence and right of access to healthcare.

The Attorney-General, Jeremy Wright QC MP, setting out the Government’s case emphasised the political history to the referendum: that it was a manifesto pledge given by the Conservatives in the 2015 General Election, which they won; that the referendum was established by an Act of Parliament and gave a clear majority in favour of Leave; and that since the referendum the Government’s clear position has been that the referendum result would be acted upon. He argued that this was not, as the Claimants argued, a narrow procedural challenge, but “in reality” an attempt “to invalidate the decision already taken to withdraw from the European Union and to require that decision to be taken by Parliament“. On the technical point of law, the Government argued that the Claimants had overstated the principle that the prerogative may not be exercised inconsistently with statutory rights; that the exercise of prerogative powers in this case would not in fact be inconsistent with the relevant statutory scheme; and that the case was not properly justiciable by the Courts. It will continue with its submissions on the points regarding citizenship rights today.

One of the most significant points of the day was in fact one which was not in dispute: early in the Government’s submissions the Court asked whether it agreed with the lead Claimant’s position that an Article 50 notification is unconditional and, once triggered, cannot be withdrawn by the UK. The Attorney-General indicated that the Government agreed with that proposition. If the Court is unsure on the point it may still consider whether it needs to be referred to the CJEU, on which my colleague George Peretz QC has written. But the Government’s position is clear: once it hits send on the Article 50 email, it can’t change its mind.