Supreme Court sets boundaries of EU discrimination law for freedom of movement

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In R(Nouazli) v Secretary of State for the Home Office [2016] UKSC 16, the Supreme Court has rejected a challenge to powers which enable persons exercising free movement rights to be detained, pending a decision whether to remove them from the United Kingdom.  Tim Ward QC acted for the Secretary of State.  The case contains an important statement of principle as to the scope of EU discrimination law.

Regulation 24(1) of the Immigration (European Economic Area) Regulations 2006 permits the detention of person exercising EU free movement rights, if there are reasonable grounds to suspect he is a person who may be removed on (inter alia) public policy grounds. The Appellant was an Algerian national who had formerly been married to a French national, and accordingly enjoyed a right of residence in the UK as an EU family member. He argued that Regulation 24(1) gave rise to discrimination, as no equivalent “pre-detention” power existed in the UK immigration regime which applied to those who were not exercising EU law rights.  The Supreme Court rejected this argument, holding that third country nationals are not an appropriate comparator for testing discrimination in EU law: such “discrimination” is simply a function of the limited scope of the EU legal order.  Nor was such discrimination contrary to the Charter of Fundamental Rights.

The judgment is accordingly of considerable importance in defining the scope of application of EU discrimination law.

The full judgment is available on the Supreme Court’s website (here).

Anneli Howard, key speaker at 10th Jordan’s Junior Competition Conference, warns UK follow-on damages actions may shrink after Brexit and UK Competition Litigation become a “lost child”

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The current private enforcement “sweet spot” enjoyed by the UK, attracting worldwide claimants to its courts, could significantly shrink if the UK leaves the EU, and divergences between legal systems leads to “forum shopping”, Monckton Chambers’ Anneli Howard cautioned junior lawyers, in a keynote speech, held at the Competition Appeal Tribunal in Bloomsbury, on Friday (15 April).

Anneli Howard was a key speaker at the annual event, organised by Jordan Publishing’s Competition Law Journal and aimed at junior lawyers, economists and academics with an interest in competition issues. This year’s conference was entitled: Brexit? Divergence and convergence in UK and EU competition law & Private enforcement: calm before the storm?

Focussing on the topic “Brexit – exit stage left for competition law damages?”, Anneli Howard predicted that the immediate fall out from BREXIT is likely to be minimal in the short term but, over time, divergences could appear between the UK and the rest of the EU in terms of litigation practice or substantive competition law. Importantly, Commission Decisions would no longer be binding on English courts, who would be free to hear claims in parallel with Commission investigations, appeals and concurrent proceedings elsewhere in the EU. UK Judgments would no longer be recognised and enforced in 28 Member States. The UK would play no role in preliminary references before the CJEU and lose the opportunity to shape and influence future legal developments. “Brexit” could lead to a significant long-term reduction of global follow-on claims being heard in London if legal uncertainties unpick the vital toolkit of private claims and undermine the confidence of litigation funders in the UK. Ms Howard tempered her caution by highlighting that alternatively there could be a positive conclusion should standalone litigation could increase, which the UK’s specialist judges would be equipped to deal with and move UK competition law forward. Divergence might actually make the UK a more attractive forum than other Member States, particularly if they are distracted in the detail of the new Damages Directive for the next 5 years.  Either way, following an analogy throughout the talk  to Shakespeare’s “The Winter’s Tale”, Ms Howard concluded  that there was a real danger that both the new Directive and competition litigation in the English Courts could  become a “lost child” if forced to survive alone.

The talk will be the basis of an article on the topic, by Anneli Howard, to be published by Jordans in June.

BIS successfully defends challenge to Construction Levy

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Brendan McGurk was part of the team that successfully defended the Department of Business, Innovation and Skills against a challenge to the lawfulness of a new method by which an industrial training levy is to be calculated and imposed  on the construction industry. The construction levy is imposed on construction employers to raise funds for the training of both the employed and the self-employed workforce in the construction industry. In order to meet concerns within the industry that the basis upon which levy was to be collected on payments made to the self-employed workforce had become too complicated, the Construction Industry Training Board adopted HMRC’s Construction Industry Scheme as the means by which levy would be calculated on payments made to independent contractors. Hudson Contracts Services Limited, an industry-leading labour agency (albeit providing PAYE and payroll services only), sought to contend that the new basis upon which levy is to be calculated and imposed was ultra vires the Industrial Training Act 1982. The three grounds of challenge pursued by Hudson were each dismissed by Kerr J in a judgment that is available here. The case is one of a number of tax judicial reviews on which Brendan is currently acting.

To view the full judgment, please click here.

Key element of Ealing’s housing allocations policy held discriminatory and unlawful

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The High Court has held that a scheme by which a London council ringfenced 20% of available lettings for working households and ‘model tenants’ was discriminatory and unlawful. Steve Broach acted for the claimants in this case, R (H and others) v Ealing LBC [2016] EWHC 841 (Admin).

The claimants were two families (referred to in the judgment as H and others) who together had the ‘protected characteristics’ of disability, age and gender under the Equality Act 2010. As a result of their circumstances the claimants were unable to meet the work requirement of the scheme introduced by the London Borough of Ealing. They also could not be ‘model tenants’ as this only applied to council tenants.

HHJ Waksman QC allowed the challenge to the scheme on all grounds, being that:

  1. The scheme unlawfully discriminated against women, disabled and elderly persons contrary to sections 19 and 29 of the Equality Act 2010 and unlawfully discriminated against women, disabled and elderly persons and children of single parent carers contrary to Article 14 ECHR (read with Article 8 ECHR) in relation to the working household provisions.
  2. The Scheme unlawfully discriminated against tenants who do not hold council tenancies contrary to Article 14 ECHR (read with Article 8 ECHR) in relation to the model tenant provisions.
  3. In adopting and maintaining the Scheme, the Defendant was in breach of its public sector equality duty under section 149 of the Equality Act 2010.
  4. In adopting and maintaining the Scheme, the Defendant was in breach of the obligations in respect of the welfare of children imposed by section 11 of the Children Act 2004.

The Judge quashed the scheme, meaning that at least until a replacement scheme is put in place Ealing will not be able to ringfence any properties for these groups. As a result the claimants and other families in their position will be able to bid for all available properties in each bidding round.

The judgment has important implications for all councils with housing responsibilities, particularly London councils who have to manage very high demand for social housing in the face of a very limited supply.

Steve Broach is instructed for the claimants by Hopkin Murray Beskine solicitors.

To read the judgment please click here.

The Lawyer General Counsel Strategy Summit 2016 – Gerry Facenna QC to chair round table on the new European Data Protection Regulation

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This year’s, The Lawyer General Counsel Strategy Summit, which is being held 11-13 May 2016, is all about “The role of the General Counsel as an ethical business leader.”

Monckton Chambers continues with its support of this prestigious annual event, which is organised by The Lawyer and positioned as a visionary forum for business leaders. Across the 2 days, the summit will feature over 30 speakers, an unrivalled line-up of senior legal practitioners from some of today’s leading organizations, coming together to share the strategies behind their success.

Gerry Facenna QC is one of the 30 leading practitioners selected to shape this “must-attend event” for GCs.  He will be chairing a round table session on “How will the new European Data Protection Regulation affect you?”

The new EU General Data Protection Regulation is the biggest shake-up of EU privacy and data protection laws in 20 years. It will become the basis for all EU data protection laws and creates a number of new rights for data subjects and new regulatory risks and challenges for businesses around how they store, use, access and return personal data.

Gerry Facenna’s round table session will cover:

  • Implications for business – new regulatory approaches to data protection and compliance challenges
  • Risks of increased, turnover-based financial penalties, new reporting obligations
  • Consumer rights to transfer data and switch providers
  • Update on rules on data transfers, EU-US ‘Privacy Shield’, safe harbour arrangements
  • Latest EU and domestic case law on data retention and processing

Gerry Facenna QC is well-positioned to chair this topic as he has appeared in more than forty cases before the EU Courts, and in a number of the landmark cases that have shaped UK data protection and information rights laws including, in 2016, Dawson-Damer v Taylor Wessing LLP in the Court of Appeal and Google v Vidal-Hall in the Supreme Court.

All That Glistens is Not Gold: Some environmental regulatory issues for the UK Construction Industry in a Post-Brexit World

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Michael Bowsher QC and Christopher Muttukumaru CB each gave a talk at a meeting of the Society of Construction Lawyers, held at the National Liberal Club  on 5 April 2016. Over 150 members of the society attended the talks, which will be publicised to the society’s 2500 members and affiliates worldwide.

Michael covered a number of key issues including the impact of a possible Brexit on Procurement Law (Practical Law’s Public Sector Blog) and on English contract law.

Christopher spoke on aspects of environmental law as they affect the delivery of major infrastructure projects in a post Brexit world. His paper to the society assumes that the UK electorate will vote to leave the EU and provides an indication of the timetable once notice of exit is given under Article 50 of the Treaty on European Union. It exposes aspects of the legal uncertainty that will follow in a transitional period after notice but before exit, as well as in the period thereafter. Using three examples of EU Directives that affect the delivery of major infrastructure projects, it argues that the UK will be reluctant to set aside adherence to its substantive obligations, since abrogation of the Directives would undermine the UK’s international reputation and undermine its policy aims. In any event, in two cases, the EU obligations are mirrored in international treaties that largely cover the same ground as two of the three EU Directives and therefore the UK would have to withdraw from them in parallel with Brexit.

To read the full paper by Christopher Muttukumaru CB, published by The Society of Construction Law, please click here.

Chambers Global 2016 – Monckton recognition for Competition Law expertise and Drew Holiner for Russian Dispute Resolution

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Chambers Global 2016 has just been published.  Covering 190 countries worldwide and also includes region-wide and global-wide sections, the Guide recognising the world’s best lawyers.

Monckton Chambers is one of four sets to be recognised for COMPETITION LAW (THE BAR) — UK and one of only two in the leading band.

Individual Monckton members ranked for this category are:

In addition, Drew Holiner, who is a member of the Russian Bar Association and noted by the Guide for his “extensive experience representing clients in high-stakes litigation and international arbitration proceedings concerning Russia and CIS countries” is ranked for DISPUTE RESOLUTION (EXPERTISE BASED ABROAD) — RUSSIA.

Olympic stadium contract must be disclosed in full

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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

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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

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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.