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R(Gallaher) v Competition and Markets Authority and the Search for the Principle of Equal Treatment
Fred Allen
Our team is experienced and held in high regard for our representation of senior professionals, public figures and major corporations before Parliamentary Select Committees. We are widely praised for our capabilities in 'sensitive, high-profile, politically inflected work'.
The main role of Parliamentary Select Committees is to hold government to account on behalf of Parliament, and to scrutinise government activity, through the launch of inquiries. Increasingly in recent years, Select Committees have extended their remit to inquire into the activities of companies and organisations where these have a significant impact on the public. Recent examples are the Environment, Food and Rural Affairs Committee’s examination of the horsemeat scandal and the Culture Media and Sport Committee’s inquiry into the future of FIFA.
How we work with you
Major inquiries are high profile and take place in the full glare of the media. Giving evidence before a committee can therefore be an intimidating experience, whether you are a senior professional, public official, major corporation or representing a public sector body.
We know that you will also have wider interests at stake, be they reputational, professional, commercial or financial, and we carefully help steer you through the preparation for questioning by MPs, mindful of your broader concerns.
An inquiry is formally launched by a notice outlining the main inquiry themes or terms of reference. The Committee decides whom it wishes to call to answer questions orally, and it may also call for written evidence to be submitted. Questioning takes place during oral evidence sessions, usually in public, with live media coverage.
It is important for witnesses and interested parties to bear in mind that because chairs and members are now elected, Select Committees are growing in standing, acting with greater conviction and renewed authority. Their increase in profile and self-confidence is recognised to stem from the fact that Committees see their activities as helping to restore the damaged reputation of the Commons.
Select Committee processes are not like those of courts or tribunals. In particular, there is no obligation to disclose lines of questioning in advance, or to make disclosure of documents that will be put to witnesses. MP’s have no training in interrogation, and can use oral sessions as an opportunity to pursue their own personal political agendas. Oral evidence sessions can therefore be unpredictable and challenging. Committee clerks are usually very helpful, but they will be the first to point out the limits of the assistance that they can provide.
For these reasons, it is essential that legal advisers to witnesses have Parliamentary experience, if they are to provide the best advice possible. Our team has that experience. Our understanding of the parliamentary environment and inquiry process means that you can be confident that your interests are taken care of from the moment you instruct us, from communicating with the Clerk to the Committee or the Chair, helping you to gather documentary evidence and prepare for questioning, to attending oral evidence sessions with you, and where necessary taking care of media inquiries. We also understand that it is essential that we have complete insight into your situation from the outset, and we will work very closely with you from the moment the inquiry is launched, through its duration, and afterwards.
The team is led by Stephen Parkinson, who has a wealth of experience acting for public figures before Select Committees, both in Government (where he was Deputy Head of the Attorney General’s Office), and since joining Kingsley Napley. In recent years he has advised witnesses in Select Committee Inquiries into phone hacking, banking standards, food contamination and FIFA. He is supported by partners Adam Chapmen, Sophie Kemp and Emily Carter, all of whom have significant experience of acting for witnesses facing major investigations
what directories have said about us
Knowledgeable, responsive, thoughtful, professional, well networked and well connected, with a touch of elegance which goes beyond what one normally encounters in a legal firm.”
Legal 500 UK 2021
They are outstanding; they combine high-level legal skills with real human understanding."
Chambers UK 2021
The team is small but packs a punch well above its size: they are quick, flexible, continuously on the ball and efficient.”
Legal 500 UK 2021
Legal advice is always given with an awareness and deep experience of the wider legal context (in our case, public inquiries) and a sensitivity to the client’s objectives.”
Legal 500 UK 2021
Emily Carter
Partner
Sophie Kemp
Partner and Head of Department
Nick Wrightson
Partner
Fred Allen
Senior Associate
Latest blogs & news
The Terms of Reference for the Scottish Covid-19 Inquiry
As we await the publication of the terms of reference for the UK wide Covid-19 Inquiry, in this blog I consider the key features of the recently published terms of reference for the Scottish Inquiry into the Covid-19 pandemic.
The Covid-19 Inquiry – the importance of the terms of reference
Any day now the Covid-19 Inquiry will publish draft terms of reference. This will be a significant event. Once agreed, the terms of reference will determine the scope and length of the inquiry which is due to begin its work in the Spring. In turn this will have a direct impact on how valuable the inquiry turns out to be.
Data: A new direction - Access to personal data
In this blog series, we will review the key proposals for reform of data protection law within the Government’s consultation paper ‘Data: A New Direction’. We will consider how far the Government will stray from the current path and signpost some potential pitfalls and practicalities for consideration along the way
The right to equality in fertility treatment
A same-sex couple have commenced a significant test case against a branch of the NHS fertility sector for discrimination against them on grounds of their sexuality.
Court considers that intransigent public inquiry witnesses will often give evidence once they have been compelled to attend
In a 16 November 2021 blog, I described how refusing to give evidence to a public inquiry might play out. Another new case, Chairman of the Manchester Arena Inquiry v Romdhan [2021] EWHC 3274 (Admin), reinforces my view. Potential witnesses in next year’s coronavirus (Covid-19) inquiry take note.
Data: A New Direction - Unleashing the transformational power AI?
In this blog series, we will review the key proposals for reform of data protection law within the Government’s consultation paper ‘Data: A New Direction’. We will consider how far the Government will stray from the current path and signpost some potential pitfalls and practicalities for consideration along the way.
High Court imposes positive operational duties on state authorities in environmental pollution context
On Thursday 16 September 2021 in the High Court, Fordham J handed down judgment in R (on the application of Richards) v Environment Agency and Walleys Quarry Limited [2021] EWHC 2501 (Admin) (“Richards”). The High Court declared that positive operational duties were triggered on the Environment Agency (“EA”) under the European Convention of Human Rights Act (“ECHR”): Article 2 right to life and Article 8 right to respect for private and family life. For the Environment Agency to comply with its operational duties, the Declaration identified that the EA must implement Public Health England (“PHE”) recommendations and advice regarding the dangerous hydrogen sulphide emissions emanating from a landfill site.
The Judicial Review and Courts Bill: Proposed reform of Judicial Review
Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.
As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.
Data protection law reform: A new direction?
In this blog series, we will review the key proposals for reform of data protection law within the Government’s consultation paper ‘Data: A New Direction’. We will consider how far the Government will stray from the current path and signpost some potential pitfalls and practicalities for consideration along the way.
We begin with the Government’s proposals for creating a ‘whitelist’ of legitimate interests which always provide a lawful basis for processing under the UK GDPR.
Can you refuse to give evidence to a public inquiry?
Individuals asked to give evidence to public inquiries often wonder whether they really have a choice. The case of Chairman of the Manchester Arena Inquiry v Taghdi [2021] EWHC 2878 (Admin) illustrates how refusing to participate might play out. Potential witnesses in next year’s coronavirus (Covid-19) inquiry take note.
Having our cake and eating it: Parliamentary sovereignty in light of Brexit and the Covid-19 pandemic
One of the key themes of the Brexit campaign was for the UK to retain Parliamentary sovereignty, or “Take Back Control.” This blog focuses on that aspect of Brexit and revisits previous discussions around delegated legislation and Parliamentary sovereignty to assess the effect of the past 9 months on our Parliament.
Reform of the Human Rights Act: The Lord Chancellor’s “mechanism” to correct judgements
At the recent Conservative party conference, the new Lord Chancellor, Dominic Raab, signalled his intention to “overhaul” the Human Rights Act 1998 (the ‘Act’). It has since been reported that he is working on a “mechanism” to allow the Government to introduce ad hoc legislation to correct court judgements that ministers believe to be incorrect. Whilst the precise details of any mechanism remain to be seen, this notion is constitutionally problematic in that it potentially grants the executive wide powers to override the judiciary.
Preparation for Public Inquiries - Webinar Summary
In light of the announcement that an independent inquiry into the Government’s handling of the coronavirus pandemic will begin in spring 2022, Kingsley Napley hosted a webinar last week on the theme of Preparing for Public Inquiries in conjunction with Blackstone Chambers and FTI Consulting. For anyone who missed this event, a recording is available here (LINK) and we have also prepared the summary below.
Essential Planning for the COVID Inquiry
Given a judge-led inquiry into how the Scottish Government handled the COVID pandemic will start before the end of this year, many are anxiously awaiting news of the Government’s promised UK- wide public inquiry.
Back in May 2021, No 10 committed to that inquiry starting in Spring 2022. Yet months on, details are scant. Who will Chair it? What are its terms of reference? Yes, there may be six months to go, but vital questions remain before any inquiry of this national significance and stature begins.
What is Next for GDPR in the UK, is Change on the Horizon?
The General Data Protection Regulation (known to everyone as the GDPR) is probably the most famous piece of legislation to come from the EU. It was and is incredibly ambitious in its scope, and shapes the way we engage with organisations both online and in the real world. When the UK formally withdrew from the EU, GDPR became retained EU law and continued to apply as before. The government have recently announced that they want to reform data protection legislation, but substantial deregulation might be an unrealistic ambition.
Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin)
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
New guidance encourages judicial review practitioners to be concise, succinct and prepared
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
Can you devise an effective ouster clause to exclude a category of decision making from judicial review?
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
The UK Supreme Court has confirmed the principles for judicial review of policies
R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Case Note – costs of interested parties in judicial review proceedings: CPRE Kent v Secretary of State for Communities and Local Government UK/SC 2019/0174
The Supreme Court has, unusually, recently heard, and now delivered judgment on, an appeal concerning costs in statutory appeal and judicial review cases. It is unusual for costs issues to be considered significant enough to merit consideration by the Supreme Court and, not least given the outcome of the appeal – and of course it is easy to be wise after the event – it is something of a surprise that permission to appeal was granted in the first place.
