Edenred (Group UK) Limited v Her Majesty’s Treasury and others [2015] EWCA Civ 326

The Court of Appeal has today handed down judgment in the public procurement case of Edenred (Group UK) Limited v Her Majesty’s Treasury and others upholding Andrews J’s decision in favour of the Government (read the first instance decision here).

This was the appeal in an expedited case on whether the way in which the new Government policy of Tax-Free Childcare is proposed to be delivered, by HMRC working with NS&I, is lawful under domestic and EU public procurement legislation.

The Chancellor, with whom Underhill LJ and King LJ concurred, held that a proposed memorandum of understanding between HMRC and NS&I was not a “public services contract” and that the work that NS&I will require under its outsourcing contract with Atos (the contractor who had previously won a tender to provide NS&I’s back office functions) did not amount to a material variation of the Atos contract. The Court of Appeal therefore held there was no breach of the Public Contracts Regulations 2006 or Article 56 TFEU.

Philip Moser QC, Ewan West and Anneliese Blackwood appeared on behalf of Her Majesty’s Treasury, Her Majesty’s Revenue and Customs and NS&I.

Please click to read the Edenred v HMTreasury Court of Appeal judgment.

 

The Supreme Court will hear an appeal today (Thursday 26 March 2015) on the question of whether the rule which suspends payability of Disability Living Allowance for disabled children in hospital after 84 days is compatible with Articles 8 and 14 of the European Convention on Human Rights. Ian Wise QC and Steve Broach act for the Appellant, instructed by Mitchell Woolf of Scott-Moncrieff and Associates.

The appeal concerns a child, Cameron Mathieson, with complex disabilities who sadly died during the proceedings. Cameron’s needs meant that he required hospital care regularly throughout his life. For one period of hospitalisation the benefit withdrawn under the rule challenged in the appeal amounted to around £7,000. The loss of the benefit had significant consequences for Cameron and his family. His father Craig Mathieson is therefore pursuing the appeal both for the family and the roughly 500 families a year with severely disabled children in a similar situation.

The appeal is supported by two national charities, Contact a Family and The Children’s Trust. These charities have been campaigning against the rule under the banner ‘Stop the DLA Takeaway’. The charities have produced evidence to show a large majority of families provide the same or greater levels of care to their children when they are in hospital and experience substantial additional costs during these times. Information on the campaign and the charities’ response to the appeal was available from the Contact a Family website.

The Supreme Court has today handed down judgment in the case of R (Evans) and Another –v- Attorney General [2015] UKSC 21 – the long-running battle over whether letters sent by Prince Charles to various government departments should be disclosed.

By a majority 5 to 2 verdict, the Supreme Court determined that the former Attorney General was not entitled to prevent disclosure of the letters. By a majority of 6 to 1, the Supreme Court also held that the power granted to Cabinet Ministers and the Attorney General to override a decisions requiring disclosure under the Environmental Information Regulations is incompatible with the European directive on public access to environmental information.

Josh Homes appeared for the Attorney General (Appellant); Julianne Kerr Morrison appeared for the Campaign for Freedom of Information (Intervener).

This case has been featured in various press including:

• Guardian
• BBC
• Telegraph

 

The Jeremy Lever Lecture has been featured in the Oxford University Law Faculty eBulletin.

The newsletter commented:

Judge Koen Lenaerts gave the annual (and fourth) lecture in honour of Sir Jeremy Lever on Friday 30 January, in the Gulbenkian Lecture Theatre. Judge Lenaerts is Vice President of the Court of Justice of the European Union and Professor of Law at the University of Leuven. The Chair was taken by Lord Neuberger, President of the Supreme Court.

For more information on the Jeremy Lever Lecture, please click here.

12 members of Monckton Chambers have been listed in Best Lawyers in the United Kingdom 2015.

Members have been listed across five areas; Administrative & Public, Competition, Construction, Human Rights and Tax:

Administrative & Public: Jon Turner QC, Ian Wise QC, Stephen Cragg QC, Gerry Facenna

Competition: Paul Lasok QC, Jon Turner QC, Daniel Beard QC, Kassie Smith QC, Meredith Pickford QC, Ben Rayment, Alistair Lindsay

Construction: Michael Bowsher QC

Human Rights: Stephen Cragg QC, Gerry Facenna

Tax: Paul Lasok QC, Melanie Hall QC

In a groundbreaking judgment delivered today (Wednesday 18 March 2015) the Supreme Court has found that the government’s ‘benefit cap’ is in breach of the United Kingdom’s legal obligations on children’s rights.  The benefit cap is a fixed limit on the total amount of state benefits which a household can receive, regardless of their family size or circumstances.

After lengthy deliberations a majority of the Supreme Court have concluded that the cap is not compatible with the government’s obligation under the United Nations Convention on the Rights of the Child to treat the best interests of children as a primary consideration (Lady Hale at paragraph 225, Lord Kerr at paragraph 268 and Lord Carnwath at paragraph 128).  Two of the five Judges of the Supreme Court who considered the case have found that this failure resulted in unlawful discrimination against women.  A third member of the court, although finding that the government had breached its commitment and obligation to treat the best interests of children as a primary consideration, found the benefit cap regulations not to be unlawfully discriminatory against women.  He did however call for the government to address the implications of the finding of the majority of the Supreme Court that the benefit cap scheme breaches the United Nations Convention on the Rights of the Child in its review of the benefit cap.

The Deputy President of the Supreme Court, Lady Hale, states in the judgment that:

‘The prejudicial effect of the cap is obvious and stark.  It breaks the link between benefit and need. Claimants affected by the cap will, by definition, not receive the sums of money which the State deems necessary for them adequately to house, feed, clothe and warm themselves and their children’ (paragraph 179).

‘It cannot possibly be in the best interests of the children affected by the cap to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life.’ (paragraph 225).

Lord Kerr states:

‘It cannot be in the best interests of the children affected by the cap to deprive them of the means of having adequate food, clothing, warmth and housing. Depriving children of (and therefore their mothers of the capacity to ensure that they have) these basic necessities of life is simply antithetical to the notion that first consideration has been given to their best interests’ (paragraph 268).

Lord Carnwath states:

‘The Secretary of State has failed to show how the regulations are compatible with his obligation to treat the best interests of children as a primary consideration’ (paragraph 128).

The Appellants welcome the clear finding that the benefit cap regulations breach the government’s international obligations under the United Nations Convention on the Rights of the Child. However they are disappointed that – by the slimmest of majorities – the Supreme Court declined to find that the scheme breaches national law (3:2).  As it was only due to a legal technicality that they did not secure an outright victory the Appellants call on government to commit to amending the benefit cap scheme so as to ensure that it complies with the internationally recognised standards for the welfare of children.

The government has made a public commitment to ensure its policies comply with the Convention: “All UK government policies and practices must comply with the UNCRC”.

Ian Wise QC with Caoilfhionn Gallagher and Sam Jacobs of Doughty Street Chambers acted for the Appellants.  They were instructed by Rebekah Carrier of Hopkin Murray Beskine Solicitors

Rebekah Carrier, the Appellants’ solicitor, said:

‘My clients have been hit by the benefit cap because of their flight from violence and because of high private sector rents which they cannot avoid. The cap is causing serious hardship to families across the country and to local authorities who are struggling to find accommodation for homeless families in crisis. It is not an exaggeration to say that the long term impact of the cap is going to trap some women and children in violent relationships, leave others hungry, homeless and isolated at times of crisis. The government seeks to justify the cap by the financial savings achieved but the long term consequences of this arbitrary benefit cap are likely to have not only devastating consequences for individual children but serious financial costs as the fallout impacts on other public services including social services, education and the justice system.

A majority of the Supreme Court has held that the cap breaches international protections for the rights of children. The government must halt this policy and comply with its international obligations, and its own promise to ensure its policies comply with the UN Convention.’

Further Information:

• Click to read the full  R (on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions judgment and the Supreme Court’s  Press summary.
• Hopkin Murray Beskine’s press release

This judgment has received the following press:

• The Lawyer
• The Guardian
• BBC News

The Competition Appeal Tribunal (CAT) handed down judgment today in the appeal brought by AXA PPP Healthcare Limited (AXA PPP) against parts of the report produced by the Competition and Markets Authority (CMA) on its investigation into the provision of private healthcare.  AXA PPP challenged the CMA’s finding that the formation and operation of anaesthetists groups did not give rise to an adverse effect on competition (AEC) for the purposes of s.134 of the Enterprise Act 2002.  AXA PPP argued that there was an evidential presumption of an AEC where anaesthetists groups with a high market share collectively set prices; that the CMA had acted irrationally in its assessment of pricing evidence; and that the CMA had acted unlawfully in reaching its decision without having undertake further investigation.

AXA PPP’s appeal was rejected on all grounds.  The CAT confirmed that the CMA had a wide discretion in carrying out such assessments and in making such decisions, particularly given the complexity of the markets concerned and the statutory time-limits within which the CMA had to operate.  The CAT rejected an analogy which AXA PPP had sought to draw between the concept of an AEC and Article 101 TFEU/ the Chapter 1 prohibition. 

The CAT noted the limits of its role in a challenge brought to a market investigation decision under s.179 of the 2002 Act.  On such a challenge, the CAT is to apply the same rules as would be applied by a court on an application for judicial review.  The CAT noted that it was “dealing with a challenge by way of a statutory form of judicial review, not with an appeal on the merits. A review court or tribunal will be slow to find that an evaluative judgment of the nature in issue here, made by an expert regulatory body after careful assessment of relevant evidence, as here, was irrational or unlawful. In our judgment, AXA PPP has failed to show that the assessment made by the CMA of the significance of its price analysis was irrational or unlawful.”  Moreover, the CMA was “lawfully entitled, in the exercise of its investigative discretion, to decide not to pursue this dimension of its market investigation any further. To have done so might have jeopardised its ability to comply with its legal duty to produce its report within the statutory timetable. The CMA was entitled to have regard, as it did, to the constraints on time and resources available for investigation overall.”

Please click to view the judgment in AXA PPP Healthcare Limited v CMA

Kassie Smith QC and Brendan McGurk appeared for the Competition and Markets Authority

Anneli Howard appeared for the interveners, the Association Anaesthetists of Great Britain and Ireland

 

The High Court has ordered the Metropolitan Police to comply with a data subject access request made by Mr Kololo, a Kenyan man facing the death penalty.

The Police had refused to provide Mr Kololo with his personal information. It argued that his request was made for an improper purpose, namely that he intended to use the information in the context of his ongoing criminal appeal proceedings in Kenya.  The Police also argued that Mr. Kololo was improperly attempting to circumvent a statute – the Crime (International Co-operation) Act 2003 – which was said to be the only way that evidence can lawfully be obtained in this country to help in foreign court proceedings.

Mr Justice Dingemans held that Mr Kololo’s subject access request was not an abuse of process. He rejected the Metropolitan Police’s argument that the provisions of the Crime (International Co-operation) Act 2003 ousted Mr Kololo’s right of access to personal information under the Data Protection Act 1998.

He therefore ordered the Police to comply with the request.

Media coverage of the judgment includes:

• Telegraph
• The Times

Jon Turner QC, Nikolaus Grubeck and Julianne Kerr Morrison acted for Mr Kololo.

R (Khatib) v Secretary of State for Justice [2015] EWHC 606 (Admin)

Judgment, 10 March 2015

The High Court yesterday dismissed an attempt by a convicted terrorist to overturn his escape risk classification. Escape risk classification reflects the level of escape risk that a prisoner is thought to represent, and affects the security conditions that are applied to his imprisonment. The Claimant, a serving prisoner, had been convicted of conspiracy to murder in 2009 and sentenced to life imprisonment for his part in an Al Qaeda inspired plot to blow up transatlantic aircraft. By a claim for judicial review he challenged the Ministry of Justice’s 2014 decision to classify him as representing a high escape risk, arguing that the decision contained a number of legal errors. In an important judgment dealing with both the process by which such decisions are taken and their content, the Divisional Court (Lord Justice Elias and Mr Justice Simon) dismissed all but one of the Claimant’s complaints. Whilst the Court found that there had been a limited procedural error in the decision, it held that this was insufficient to justify quashing the decision. The effect of the Court’s judgment is that the decision to classify the Claimant as high escape risk stands.

Click to read the full R (Khatib) v Secretary of State for Justice judgment

Ben Lask acted for the Secretary of State for Justice.

R (Mahoney and Others) v Secretary of State for Communities and Local Government [2015] EWHC 589 (Admin)

Judgment, 9 March 2015

The High Court yesterday dismissed a claim by Irish Travellers that the legislative scheme for compensating those displaced as a result of compulsory purchase orders was incompatible with their rights under the European Convention on Human Rights. Finding in favour of the Secretary of State, the Court ruled that such schemes were covered by the wide margin of discretion afforded by the courts to national Parliaments in matters of economic and social policy.

The claims were brought by Irish travellers living on a local authority caravan site in East London. The claimants were to be displaced from the site by Crossrail, a subsidiary of Transport for London, which required the site for the construction of a new railway. Since it was common ground that the claimants were being offered a suitable alternative on reasonable terms, the effect of s.33(2) of the Land Compensation Act 1973 was to preclude them from receiving a home loss payment (a payment to reflect a person’s distress of being compelled to move out of his home). The claimants argued that the legislation was incompatible with Article 14 of the ECHR, read together with Article 8 and Article 1 of the First Protocol, since it discriminated unlawfully between caravan dwellers and those living in dwelling-houses.

The Court stressed that s.33(2) concerned the area of economic and social policy, where Parliament enjoyed a wide margin of discretion which should be disturbed only if the measure was “manifestly without reasonable foundation”. In limiting the home loss payment to those cases where a suitable alternative caravan site on reasonable terms was not available, Parliament acted proportionately and reasonably. In particular, by incorporating flexible concepts of “suitable alternative site” and “reasonable terms”, s.33(2) enabled a decision maker to take into account any loss of amenity sustained by a caravan dweller on moving his caravan. Crucially, s.33(2) reasonably reflected the materially different situation of a caravan dweller, who could take his caravan with him on displacement and that of an occupier of a dwelling-house, who would lose the physical structure in which he lived, and the likely difference in distress suffered by the two. On that basis, the Court held, s.33(2) was not incompatible with the ECHR.

Click to read the full R (Mahoney and Others) v Secretary of State for Communities and Local Government judgment.

Ben Lask acted for the Secretary of State for Communities and Local Government.