Olympic stadium contract must be disclosed in full

The First Tier Tribunal (Information Rights) ruled today that the concession agreement under which West Ham United Football Club will become the new anchor tenant at the Olympic stadium, at the Queen Elizabeth Olympic Park in Stratford, London, must be disclosed in full.

The Tribunal agreed with the Information Commissioner that disclosing the contract in full would not be likely to prejudice the commercial interests of either the London Legacy Development Corporation, or of West Ham United Football Club, and that the relevant exemption from disclosure (section 43 FOIA) was not engaged.

A copy of the Information Commissioner’s decision can be viewed here, and the Tribunal’s judgment here.

Further commentary on the judgment can be found here: BBC, The Guardian, Mirror, Daily Mail.

Laura Elizabeth John acted for the Information Commissioner.

 

WHO’S WHO LEGAL (WWL) UK BAR 2016 – Monckton Chambers “Leading Set” Success

The recently published WHO’S WHO LEGAL (WWL) UK BAR 2016 has singled out Monckton Chambers as  one of the UK Bar’s twelve  “Leading Sets “.  In addition there are 36 members listings across six categories: Competition (13),Government Contracts (8), Telecoms (8), Media & Entertainment (3), Sports (2), Environment (2).

Under Competition:

  • Jon Turner QC and Daniel Beard QC are recognised as two of only five “Most highly regarded”  “Leading Silks” for the practice area.
  • Josh Holmes is listed as one of only three “Leading Juniors”.

Also listed in this field are:

Under  Government Contracts:

  • Michael Bowsher QC is one of three Silks recognised as “Most Highly Regarded Individuals”.
  • Rob Williams is recognised as one of only three Juniors singled out.

Also listed in this field are:

Under Telecommunications:

  • Jon Turner QC is named as one of four “most highly regarded”  “Leading Silks”.
  • Robert Palmer is also one of only four for the “Leading Juniors” table.

Also listed in this field are:

Under Media & Entertainment:

Under  Sports:

  • Paul Harris QC is one of only four “Leading Silks” in the “Most Highly Regarded Individuals”  tables.

Also listed in this field is:

Under  Environment:

This is the second edition of Who’s Who Legal: UK Bar, a comprehensive guide to 24 distinct practice areas at the bar, which includes 1119 listings from 107 barristers’ chambers and is published by Law Business Research Ltd.

New joint Heads for Monckton Chambers – Tim Ward QC and Philip Moser QC take over from Paul Lasok QC

After 14 years as Head of Monckton Chambers, 10 of which as sole Head, Paul Lasok QC is stepping down and handing over the leadership to Tim Ward QC and Philip Moser QC, to lead the set in the next phase of its development. The new joint Heads of Monckton Chambers were elected following a full membership vote.

Under Paul Lasok’s direction, Monckton Chambers has grown substantially, trebling its fee income in 10 years from £9.5m in 2006 to a current reported turnover of £29.7m. The last twelve months have seen a particularly significant leap with an increase in turnover of a record £8M. The change at the top is taking place not only on a financial high but it is also appropriately timed in that it is almost 20 years to the day since Monckton Chambers was established under its current name.

Paul Lasok hands over the reins of an established practice of 59 members, 16 of whom are Silks, with recognised core strengths in particular in Competition, Admin & Public Law, EU, Procurement and Indirect Tax. He has led members to appreciate the need to deal with shifting expectations and work to client demands; perhaps the greatest evidence of this is the way Monckton Chambers has embraced Direct Access so that it now accounts for 40% of all fees.

Philip Moser comments “Monckton Chambers has been tremendously served by Paul Lasok. He has established a collegiate ethos by which each member of chambers knows that individual success rests on the success of chambers as a whole. All members have benefited from his wisdom and his leadership.”

Tim Ward comments “I am looking forward to working with Philip and everyone at Monckton Chambers to building upon the undoubted success Paul Lasok has helped members of chambers to achieve over the past 14 years.”

Tim Ward and Philip Moser take over as joint Heads of Chambers with effect from Monday 14 March. Paul Lasok remains in full time practice at Monckton Chambers.

Hate Speech: Jeremy McBride advised ECRI on General Policy Recommendation

The European Commission against Racism and Intolerance (ECRI) has adopted a General Policy Recommendation addressed to all 47 member States of the Council of Europe on combating hate speech. The Recommendation focuses on the phenomenon of hate speech and the damaging consequences of its use. It sets out what should be understood to constitute hate speech and identifies the measures that can and need to be taken to combat its use. In so doing, it builds upon and substantially strengthens existing European and international standards.

The starting point for the Recommendation is the recognition of the fundamental importance of freedom of expression, tolerance and respect for equal dignity, all of which are guaranteed under numerous international instruments accepted by member States of the Council of Europe. As hate speech can in some cases be effectively responded to without restricting freedom of expression, the Recommendation has a graduated approach to the measures that need to be undertaken: raising public awareness; countering any use of hate speech; providing support to those targeted by such use; promoting self-regulation; taking regulatory action; imposing administrative and civil liability; withdrawing support from particular organisations and prohibiting others; and imposing criminal sanctions in some very specific and limited circumstances. In underlining that the use of criminal sanctions should not be the primary focus of action against the use of hate speech, the Recommendation emphasises that addressing the conditions conducive to the use of hate speech and vigorously countering such use are much more likely to prove effective in ultimately eradicating such use.

The Recommendation is addressed to the governments of Council of Europe member States and is expected to become the key European standard regarding efforts to combat the use of hate speech. Its effective implementation will require the involvement and commitment of a wide range of private and non-governmental actors.

Although the Recommendation is particularly concerned with the use of hate speech falling within ECRI’s work, its provisions are envisaged as being applicable to all forms of such speech, i.e., on grounds additional to “race”, colour, language, religion, nationality, national or ethnic origin, gender identity or sexual orientation.

Jeremy McBride advised ECRI on the drafting of the Recommendation and prepared its Explanatory Memorandum (read here).

Tribunal cuts down estate agents’ Money Laundering Regs fine

The First-tier Tribunal has reduced the fine imposed on a Leicestershire estate agency for breaches of the ‘know your client’ requirements of the Money Laundering Regulations 2007.  The original penalty of £169,652 was the largest ever imposed on an estate agency business under the Regulations.  Following an appeal hearing lasting 3 days, the Tribunal has reduced the penalty to £5,000.

The original penalty was imposed on the estate agency (Jackson Grundy Limited) by the Office of Fair Trading (OFT) in March 2014 as one of its last decisions prior to the transfer of all its functions to other regulators.  The OFT calculated the penalty amount under its ‘Interim Penalty Policy’ which set out a scheme for calculating penalty amounts, starting with a percentage of ‘relevant turnover’ at ‘Stage 1’, and subsequent stages at which other factors were taken into account.

A few days after the OFT took its decision, the OFT’s responsibilities for regulating estate agency businesses under the Money Laundering Regulations transferred to HM Revenue & Customs (HMRC).  The estate agency exercised its right to obtain a review of the decision by HMRC.  HMRC upheld the original penalty.  The estate agency then appealed to the Tribunal.

At the hearing before the Tribunal, both parties agreed that the Tribunal had jurisdiction to consider all the facts as it found them to be, and to decide whether the penalty amount that had been imposed was appropriate as constituting an “effective, proportionate and dissuasive” penalty, and to decide for itself what would constitute an appropriate penalty to meet the facts of the case.

A copy of the decision is available here.  (The Tribunal provides a summary of its reasons at paragraphs 3 and 4.)

Monckton barristers represented both parties: the Appellant was represented by Alan Bates, and the Respondent by Peter Mantle.

Judicial Review Proceedings Issued against Government over Arms Exports to Saudi Arabia

Judicial review proceedings have been issued in the High Court challenging the government’s decision to export arms to Saudi Arabia for possible use in the conflict in Yemen.

Conor McCarthy has been instructed by Leigh Day in the claim brought by the Campaign Against the Arms Trade.

The challenge follows increasing evidence that Saudi Arabian forces are violating international humanitarian law in Yemen. This evidence includes recent findings by the UN Panel of Experts on Yemen (appointed by the UN Security Council) that airstrikes by coalition forces in Yemen were violating the rules of distinction, proportionality and the prohibition on indiscriminate targeting as well as other rules of international law regarding the conduct of hostilities.

The United Kingdom has presently licensed the export of around £4.6 billion of arms and military equipment to Saudi Arabia.

If permission for the judicial review is granted,  then the High Court will be asked to consider whether the continued arms exports contravene the UK government’s commitments under UK and EU rules regulating the export of military equipment.

Conor McCarthy is acting for the claimant, and instructed by Leigh Day, led by Martin Chamberlain QC.

Paul Lasok QC and Anneliese Blackwood act for HMRC in landmark win in the Supreme Court against £100m UBS and DB ‘bankers’ bonus’ tax scheme appeal

Paul Lasok QC and Anneliese Blackwood in Supreme Court Win

The Supreme Court has allowed HMRC’s appeals against UBS AG (“UBS”) and DB Group Services (UK) Ltd (“DB”) in relation to detailed schemes designed to avoid the payment of tax on bankers’ bonuses. The determinations and decisions which UBS and DB appealed against required the payment to HMRC of nearly £100 million. In each case, the scheme used by UBS and DB respectively was intended to take advantage of Chapter 2 of Part 7 of the Income Tax (Earnings and Pensions) Act 2003 (“ITEPA”), as amended by Schedule 22 to the Finance Act 2003. The judgement of the Supreme Court was given by Lord Reed, with whom Lord Neuberger, Lord Mance, Lord Carnwath and Lord Hodge agreed.

Lord Reed noted that there were two key factors identified in Barclays Mercantile [2004] UKHL 51, at para 34. First, “tax is generally imposed by reference to economic activities or transactions which exist, as Lord Wilberforce said, ‘in the real world’”. Secondly, tax avoidance schemes commonly include “elements which have been inserted without any business or commercial purpose but are intended to have the effect of removing the transaction from the scope of the charge”. He went on to note that Carnwath LJ said in the Court of Appeal in Barclays Mercantile, [2002] EWCA Civ 1853, at para 66, that taxing statutes generally “draw their life-blood from real world transactions with real world economic effects”. Lord Reed stated that where an enactment is of that character, and a transaction, or an element of a composite transaction, has no purpose other than tax avoidance, it can usually be said, in the words of Carnwath LJ, that “to allow tax treatment to be governed by transactions which have no real world purpose of any kind is inconsistent with that fundamental characteristic.” He concluded that, as Ribeiro PJ said in Collector of Stamp Revenue v Arrowtown Assets Ltd [2003] HKCFA 46, at para 35, where schemes involve intermediate transactions inserted for the sole purpose of tax avoidance, it is quite likely that a purposive interpretation will result in such steps being disregarded for fiscal purposes although not always. Some enactments, properly construed, confer relief from taxation even where the transaction in question forms part of a wider arrangement undertaken solely for the purpose of obtaining the relief.  He concluded that the position was ultimately summarised by Ribeiro PJ in Arrowtown Assets, at para 35: “The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically”.

Lord Reed considered that section 423 of ITEPA, when construed purposively, was not intended to apply to the schemes in question. He found that the reference in section 423(1) to “any contract, agreement, arrangement or condition which makes provision to which any of subsections (2) to (4) applies” was to be construed as being limited to provision having a business or commercial purpose, and not to commercially irrelevant conditions whose only purpose is the obtaining of the exemption. On the facts he found that the restrictions on the shares in the UBS and DB schemes respectively were commercially irrelevant conditions whose only purpose was the obtaining of the exemption. As a consequence he concluded that the schemes involved the provision of unrestricted shares and as such fell outside the tax exemption provided for in Chapter 2 of Part 7 of ITEPA.

Paul Lasok QC and Anneliese Blackwood appeared on behalf of HMRC.

To view the full judgment, please click here.

 

Levy Control Framework trumps “certainty” of Renewables Obligation closure date

The Court of Appeal this week upheld the Secretary of State’s decision to close the Renewables Obligation to new large-scale solar photovoltaic (PV) projects two years early, despite previous statements by the Government (made in the interests of providing “certainty” to investors) that the RO would remain open until 31 March 2017, in a decision which is likely to have significant implications for the future of similar renewable energy subsidies.

Dismissing Solar Century Holdings Ltd’s appeal from the judgment of Green J, the Court held that the existence of Government’s Levy Control Framework, which caps the cost of levy-funded spending for energy and  climate change goals, prevented any legitimate expectation arising to the effect that the RO would not be closed before that date if deployment of solar PV exceeded forecasts.

Floyd LJ held that the Government was entitled to formulate and re-formulate policy when rational grounds existed for doing so, unless to do so would amount to an abuse of power. Statements in the Levy Control Framework that the Government was committed to “maintaining support levels” for “existing investments” did not include investments which were in the pipeline but which had not yet been accredited under the RO scheme.

Further, the adoption of a “grace period” of an extra year for certain pipeline projects to accredit did not offend against any principle against retrospectivity and was not unfair in the public law sense, despite the fact that the relevant date by which projects would have to meet the criteria to qualify for the grace period had already passed when the closure order was made. The Secretary of State had set the date of the publication of his consultation proposals, to prevent a “gold rush” of projects seeking to qualify for accreditation in time. It it was lawful to close the scheme in its entirety to new entrants with effect from 1 April 2015, it was difficult to see how it could be unlawful to soften that blow by extending the scheme for a further year to those who had reached a particular stage of investment.

To view the full judgment, please click here.

Robert Palmer appeared for the Secretary of State.

Court of Justice hears challenge to EU’s Russian Sanctions

Case C-72/15 OJSC Rosneft Oil Company v. HM Treasury; the Secretary of State for Business, Innovation, and Skills; the Financial Conduct Authority

On 23 February 2016 the Grand Chamber of the Court of Justice of the EU heard Case C-72/15 Rosneft, concerning that company’s challenge to the sanctions imposed by the EU on the Russian Federation, and in particular on the Russian oil sector, in response to Russia’s actions in Ukraine.

The case was referred by the High Court in February 2015 ([2015] EWHC 248 (Admin)) and raises questions both as to the legality of the EU’s sanctions against Russia, and important constitutional issues concerning the jurisdiction of the EU Court of Justice to rule on the validity of decisions adopted under the EU Common Foreign and Security Policy.

The debate at the oral hearing focused on the interpretation of Article 275 TFEU, which limits the CJEU’s jurisdiction in relation to foreign and security policy matters, on the scope of Article 215(2) TFEU, which concerns restrictive measures adopted against natural or legal persons and groups or non-State entities, and on the role of the national courts in protecting fundamental rights affected by EU foreign policy decisions.

The judgment is likely to contain important findings by the CJEU as to the proportionality of sectorally-targeted sanctions, such as those targeting the Russian oil industry, and the jurisdiction of both national courts and the CJEU itself to consider challenges to the validity of EU foreign policy decisions. The Court is, in particular, considering whether EU law recognises the concept of a non-justiciable acte de gouvernement.

Gerry Facenna QC appeared on behalf of the United Kingdom. The hearing was also attended by Rosneft, the UK Financial Conduct Authority, the Czech Republic, Estonia, France, Germany, the EU Council and the Commission. The Advocate General’s Opinion is due on 31 May 2016.

In the proceedings in the High Court, Tim Ward QC and Julianne Kerr Morrison also acted for HM Treasury and the Department for Business, Innovation and Skills.

Michael Bowsher QC advises UNITE on threat to the NHS from controversial transatlantic trade deal

UNITE, Britain’s biggest trade union, instructed Michael Bowsher QC to advise on the impact of The Transatlantic Trade and Investment Partnership (TTIP) on the NHS. The Union presented the legal advice to the government at a meeting with the department for Business, Innovation and Skills on Tuesday 23 February 2016 and is sending a copy to all UK MPs, MEPs, Scotland’s MSPs and Assembly Members from Wales and Northern Ireland.

The advice written by Michael Bowsher, assisted by Azeem Suterwalla, recommends that the government takes concrete action to protect the UK’s health service. The advice contradicts the government’s position that there is no risk and warns that the TTIP, might limit the ability of the future governments to bring services back into the NHS once they were let to the private sector and create a ratchet effect in the direction of privatisation. It concludes there is “a real and serious risk” that key decisions about the NHS would be constrained by the trade deal. The solution, proposed by Michael Bowsher, was “for the NHS to be excluded from the agreement, by way of a blanket exception contained within the main text of TTIP”.

Read full press release issued by UNITE here

Download a copy of the advice from the UNITE website here

Read the following reports in the media: The Guardian; The Independent; Mirror