Michael Collins SC delivers report to Irish Prime Minister on events which led to resignation of Deputy Prime Minister

When it transpired in November 2017 that the Irish Department of Justice had failed to disclose certain emails involving the Minister for Justice to a Tribunal of Inquiry into an alleged police campaign against a whistleblower within the police, the minority Irish government almost fell, saved only by the reluctant resignation of the Minister for Justice and Deputy Prime Minister, Ms. Frances Fitzgerald. The Prime Minister, Leo Varadkar, appointed Michael Collins SC to conduct an inquiry into how and why the Department had failed to disclose the crucial emails, the absence of which led the Prime Minister to unwittingly mislead Parliament on two occasions as to the knowledge of the Minister in relation to an alleged police strategy against the whistleblower. Mr. Collins delivered his report on 9th March 2018 and the Government published it on 27th March 2018. Mr. Collins concluded that in response to a request for assistance from the Tribunal, the Department disclosed relevant documents from the Policing Division of the Department but failed to conduct searches of its own internal emails (which search would have unearthed the controversial emails). No meaningful explanation was offered for this failure beyond a perception within the Department that the Tribunal’s terms of reference were primarily focused on the police force rather than the Department. However, Mr. Collins also concluded that there was no deliberate concealment and that the Department and the Minister at all times acted in good faith.

 Mr. Collins’ report is the subject of an editorial in the Irish Times 29th March 2018.

CAT refers Paroxetine case to CJEU

In the latest instalment of competition litigation surrounding the issue of ‘Pay for Delay’, the Competition Appeals Tribunal has referred a series of appeals against a decision of the Competition and Markets Authority to the EU Court of Justice.

The CMA had fined GlaxoSmithKline – the patent holder of antidepressant drug, Paroxetine – and a number of generics companies over a series of settlement agreements. Those agreements settled litigation in which GSK alleged that the generics companies were threatening to enter the market in breach of its patents. The CMA considered that the agreements were anticompetitive and amounted to an abuse of dominance by GSK.

GSK and the generics companies appealed the CMA’s decision on a number of grounds. Whilst dismissing the appeals in part, the CAT referred central questions to the CJEU relating to what constitutes potential competition, infringements by object and effect, abuse of dominance, and what it describes as a ‘novel’ approach to market definition.

The CAT also recognised that existing cases before the CJEU raised many of the same issues as the present appeal.

The judgment can be found here.

Ronit Kreisberger appeared on behalf of Merck KGaA.

Jon Turner QC, Thomas Sebastian, and Elizabeth Kelsey appeared on behalf of the CMA.

Robert Palmer appointed Recorder to the South Eastern Circuit

Monckton Chambers’ Robert Palmer is one of the 133 Recorders appointed by the Queen on the advice of the Lord Chancellor, the Right Honourable David Gauke MP, and the Lord Chief Justice of England and Wales, The Right Honourable The Lord Burnett of Maldon. Robert has been deployed to the South Eastern circuit covering the jurisdiction of crime. The appointment will take effect from 4 April 2018.

This is a part-time appointment and there will be no impediment to Robert’s continued availability to handle work at the Bar.

For full list of appointments see the Courts and Tribunals Judiciary announcement here.

High Court finds Haringey LBC acted unlawfully in failing to ensure housing needs of family with severely disabled child are met.

The High Court today handed down judgment in R (KS & AM) v London Borough of Haringey. The claim was brought by a mother and her youngest child who is six years old, is severely disabled and has no sense of danger. Children’s services recognized the danger that the current accommodation presents, particularly the danger of the child falling from one of the two the balconies at the front and rear of the property. A fire risk assessment found that it was not appropriate to seal the balcony doors and so the risk of serious injury from a fall remained. Children’s services therefore requested that the authority’s housing department provided the family with suitable accommodation.

The judgment was concerned with the relationship between the obligations owed to the family by the local authority’s children’s services and its housing department. It was found by the court that the housing authority was not entitled to treat the request that it provides appropriate accommodation as a request for a review of its housing allocation decision and put the family on a waiting list with little or no prospect of securing suitable accommodation. The court also found that where the housing department did not act on children’s services request for appropriate accommodation for the family, the children’s services department was required to formulate a plan setting out how the unaddressed needs of the family were to be met.

This is an important judgment which clarifies the high degree of co-operation required by law between children services and housing departments where they are dealing with vulnerable children. It will hopefully help to avoid the longstanding problem of families with such vulnerable children being passed from one public body to another without either taking responsibility for their pressing needs.

A link to the judgment of the High Court is available here.

Monckton Chambers’ Ian Wise QC acted for the claimants, instructed by Rebekah Carrier of Hopkin Murray Beskine Solicitors.

“Benefit cap” legislation survives the Court of Appeal – now for the Supreme Court

The Court of Appeal today handed down its long-awaited judgment in R (DA & Others) v Secretary of State for Work and Pensions. The claim relates to a challenge to the lawfulness of the “benefit cap” legislation on the grounds that it unlawfully discriminates against, and hence breaches the human rights of, lone parents of children under two years old, and such children in their own right. A challenge to an earlier version of the benefit cap went all the way to the Supreme Court  but a narrow majority of the Supreme Court judges held that it did not discriminate against lone parents (and hence women) even though the majority of the Supreme Court judges did find that the cap breached the United Kingdom’s international obligations in relation to the welfare of children under the UN Convention on the Rights of the Child (UNCRC). Today’s judgment of the Court of Appeal concerns the judicial review challenge to the revised, and significantly harsher, benefit cap legislation. The High Court held that the new cap did indeed discriminate unlawfully against lone parents of children under two years old (and such children), concluding that the cap had caused “real misery to no good purpose” (see here).

The Court of Appeal, by a majority of two to one, has overturned the High Court judgment based in particular on a different interpretation of the judgment in SG. The Court of Appeal did however consider that the High Court was entitled to find that the revised cap was again in breach of the UK’s obligations to children under the UNCRC. In addition, recognising the real public importance of the issues raised, the Court of Appeal has taken the unusual step of granting permission to appeal to the Supreme Court against its own judgment. This means that the lawfulness of the benefit cap is going to be considered again at the very highest level of the judicial system.

A link to the judgment of the Court of Appeal is available here.

Monckton Chambers’ Ian Wise QC and Michael Armitage acted for the claimants/respondents, instructed by Rebekah Carrier of Hopkin Murray Beskine LLP.

George Peretz QC gives evidence to the House of Commons International Trade Select Committee.

George Peretz QC gave evidence to the International Trade Select Committee this morning on the provisions of the Trade Bill and Customs (Cross border trade) Bill that deal with the Trade Remedies Authority (TRA) and anti-dumping duties and countervailing measures post-Brexit. Topics covered included the division of powers between the TRA and the Secretary of State, the constitution and powers of the TRA, and appeals from decisions of the TRA. George has previously written for the UK Trade Forum on these issues (here).

General Court issues a key judgment on the reach of the Aarhus Regulation

The General Court has annulled the Commission’s decision that it did not need to comply with a request for review made under the Aarhus Regulation insofar as the decision in question related to the safety risks, as opposed to ‘environmental risks’ posed by a genetically modified organisms (“GMO”).

Pursuant to the Aarhus Regulation, Testbiotech submitted a request for review to the Commission of the legality of a market authorisation for a genetically modified soybean. The Commission rejected the greater part of the review on the basis that it was out with the scope of the Aarhus Regulation because it examined the health threats posed by the GMO, and not the threat it posed to the environment. The General Court found that as GMOs are cultivated in the environment they are, therefore, part of the general environment (whether they are cultivated in the EU or not). The Court found, therefore, that the Aarhus Regulation applies to any provision of EU legislation concerning the regulation of GMOs that has the objective of dealing with a risk to human or animal health, that originates in those GMOs or in environmental factors that may have effects on GMOs when they are cultivated or bred in the natural environment.

This judgment has broader significance for the exercise of environmental law rights by NGOs. It demonstrates that the General Court will adopt a broad and purposive approach to the scope of the Aarhus Regulation, enabling NGOs to challenge inappropriate market authorisations or other environmental decisions.

Kassie Smith QC and Julianne Kerr Morrison, instructed by Leigh Day, acted for Testbiotech.

For further detail see the General Court’s Press Release.

The judgement may be found here.

Monckton Chambers supports the seventh annual Sir Jeremy Lever Lecture

The seventh annual Sir Jeremy Lever lecture was held on Friday 23rd 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 “Mutual recognition and individual rights: the golden mean between blind trust and inadequate trust” was given by Advocate General Eleanor Sharpston QC and chaired by Philip Moser QC.

The event was followed by a celebratory dinner at All Souls College.

Chambers Global 2018 – Recognition in Dispute Resolution (Russia), and UK Competition Law and Construction

Chambers Global 2018 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:

SILKS:

Jon Turner QC, Daniel Beard QC, Tim Ward QC, Paul Harris QC, Kassie Smith QC, George Peretz QC, Meredith Pickford QC, Mark Brealey QC

JUNIORS:

Ronit Kreisberger, Julian Gregory, Rob Williams, Anneli Howard, Ben Lask, Ben Rayment, Alistair Lindsay, Alan Bates, Philip Woolfe, Anneliese Blackwood, Laura Elizabeth John, Alison Berridge, James Bourke.

In addition, Michael Bowsher QC was recognised for CONSTRUCTION and Drew Holiner, ranked for DISPUTE RESOLUTION (foreign expertise) — RUSSIA.

High Court to review Muslim graves case

The High Court has granted permission for a judicial review of Walsall Council’s cemeteries policy, deeming it a matter of public interest.

The Claimant’s late father is buried in the lawn area of Streetly Cemetery, which is reserved for Muslim burials. The Council’s policy prohibits edging around graves in that area. The Claimant argues that appropriate edging is a religious requirement (to prevent people from stepping on graves) and that the ban is in breach of the right to freedom of religion under Article 9 ECHR and contrary to the Equality Act 2010.

Nikolaus Grubeck is acting for the Claimant.

For the media coverage see BBC and the Guardian.