Good week for Obama in the courts: challenges to climate change regulation also fail

Coalition for Responsible Regulation v. EPA US Federal Court of Appeals, DC, 26 June 2012, read judgment

This week, two big decisions which will have come as a relief to the President. The US Supreme Court did not strike down his healthcare law (judgment here), and, to the subject of this post, neither did the Federal Courts of Appeal in Washington  declare invalid key greenhouse gas rules set by the Environmental Protection Agency. This saga is a perfect illustration of how closely law and politics get intertwined in the US.

As I pointed out in my previous post, Massachusetts v. EPA (549 U.S. 497 (2007)). told the EPA that it had a duty to regulate  greenhouse gas (GHG) emissions because they were “any air pollutant” within the meaning of the Clean Air Act – as two prior general counsels had repeatedly told it. The EPA (under the previous administration) needed to be taken to the Supreme Court before responding. Thereafter, the EPA, with a new head appointed after Obama’s election, reached an Endangerment Finding, to the effect that GHGs may “reasonably be anticipated to endanger public health or welfare”. In the pellucid prose of this Court,

Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.

Industry and a whole host of states (no prizes for guessing which fossil fuel producing states were in support) sought to challenge these rules.

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Court refuses to compel evidence on unlawful rendition in foreign proceedings

Omar & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 1737 (Admin) (26 June 2012) – read judgment

The Divisional Court has ruled that common law principles cannot be used to obtain evidence from the Foreign Secretary for use in a foreign court. 

Angus McCullough QC of 1 Crown Office Row appeared as a special advocate in the closed proceedings in this case. He is not the author of this post.

“Norwich Pharmacal” orders are sometimes granted to obtain information from third parties to help the court establish whether unlawful conduct has taken place. A court can in such a case compel the third party to assist the person suffering damage by giving them that information. In the cases of Binyan Mohamad and Shakar Aamer the courts extended the application of these orders to foreign cases. Now it appears that both may have been wrongly decided.

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Lords Reform Bill incompatible with human rights law, says Deputy Prime Minister

The Deputy Prime Minister has said that he cannot declare the Coalition Government’s House of Lords Reform Bill as compatible with the Human Rights Act, as prisoners will be banned from voting for Lords if the bill becomes law.

Under section 19 of the Human Rights Act 1998, a Minister of Crown in charge of a Bill must make a statement to Parliament on whether the Bill is compatible with European Convention on Human Rights. The Explanatory Notes to the new Bill reveal that no such statement of compatibility can be made in this case:

278… the Deputy Prime Minister has said that he is unable to sign a statement under section 19(1)(a) of the Human Rights Act 1998. The Government wishes Parliament to proceed with the Bill notwithstanding that such a statement of compatibility cannot be made.

The reason that the Bill will not be compatible with the ECHR is that perennial headache for this (and indeed the last) Government, prisoner votes. As the explanatory notes explain:

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“Cautious rebalancing” of terrorism laws in favour of liberty should continue, says independent reviewer

The Independent Reviewer of Terrorism Legislation has released his report into the operation of terrorism law in 2011. The press release is here.

The report puts the case for continuing the process already begun by the Coalition Government of rolling back some of the laws instituted in the decade following 9/11 to address the threat of terrorism. The justification for this is that the threat has reduced in size. Notably, he argues that it may be possible to grant certain terrorist suspects (“the peripheral players”) bail when arrested. David Anderson QC said of his report:

The threat from both al-Qaida related and Northern Ireland related terrorism is a real one. To meet it, we have some of the most extensive and effective counter-terrorism laws in the world. All the more need to keep them under review so that they impinge no further than is necessary on individual liberty.

German court rules child’s religious circumcision can be a criminal offence – Analysis

Updated | As has been widely reported, a regional German court has ruled that a Muslim boy’s religious circumcision was a crime and that it violated his basic constitutional rights to bodily integrity. This ruling has no direct effect on other European states, but will buoy the campaign against male circumcision.

Thanks to an admirably swift response from the Cologne Regional Court to my request, I have uploaded the appeal decision (the important one), the original decision which was under appeal and the court’s press release. All are in German. I have also uploaded a version of the appeal judgment in English (updated - I have been sent a much better English translation).

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Police retention of photographs unlawful, High Court rules

The Queen, on the application of (1) RMC and (2) FJ – and – Commissioner of Police of the Metropolis. Read judgment.

Liberal societies tend to view the retention of citizens’ private information by an arm of the state, without individuals’ consent, with suspicion. Last week, the High Court ruled that the automatic retention of photographs taken on arrest – even where the there is no prosecution, or the person is acquitted – for at least six years was an unlawful interference with the right to respect for private life of Article 8 of the ECHR, as enshrined in the Human Rights Act.

The case was brought by two individuals. One, known as RMC, was arrested for assault occasioning actual bodily harm after she was stopped riding a cycle on a footpath. The second, known as FJ, was arrested on suspicion of rape of his second cousin at the age of 12. In both cases, the individuals voluntarily attended the police station, where they were interviewed, fingerprinted and photographed and DNA samples were taken form them, but the CPS decided not to prosecute.

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What did the German Chancellor say to the EU Commission to get this factory built on a nature reserve?

IFAW Internationaler Tierschutz-Fonds GmbH; 21 June 2012, read judgment, on appeal from judgment of the General Court read judgment

I am in the middle of a series of posts about the way in which the EU institutions can be kept in check by individuals, including looking at challenges to EU measures (see my Inuit post) and the specifics of seeking an internal review of EU implementing Regulations via  the EU Aarhus Regulation 1367/2006  (see my post on the pesticides and air quality challenges). So it was a happy coincidence that last Thursday, the CJEU allowed an appeal in a case concerning documents sought by an NGO from the Commission. We are here in the territory of all EU institutions and all EU issues, not simply environmental questions arising under the Aarhus Convention, though, as we shall see, this is an environmental case.

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Right to die, asylum and extradition – The Human Rights Roundup

Welcome back to the UK Human Rights Roundup, your weekly buffet of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

The news this week has been dominated by issues relating to Article 8 and the right to die. First, we had Tony Nicklinson, a man suffering from locked-in syndrome, and then there was the case of E, a woman suffering from anorexia who was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die. In other news, just when you (or rather, I) thought the fat lady had sung for Julian Assange, there was another twist in the tale as he requested asylum at the Ecuadorian embassy.

Taking stock after Abu Qatada: Assurances, secret detention and evidence in closed proceedings

XX v Secretary of State for the Home Department [2012] EWCA Civ 742 – Read judgment

The Court of Appeal recently issued its judgment in XX v Secretary of State for the Home Department [2012] EWCA Civ 742, an appeal from a decision of the Special Immigration Appeals Commission (“SIAC”) upholding the Secretary of State’s decision to deport an Ethiopian national on grounds of national security.

XX, who had indefinite leave to remain, had been assessed to have attended terrorist training camps and to have regularly associated with terrorists in the UK. SIAC was satisfied on the facts that XX posed a threat to the national security of the UK and determined that the deportation would not breach Articles 3, 5 and 6 of the European Convention on Human Rights. XX appealed on the ground that in finding no incompatibility with the Convention, SIAC had erred in law.

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The South African ‘Secrecy Bill’: where are we now – Caroline Stone

When two Nobel Laureatesan eminent constitutional lawyer and the Secretary General of COSATU (South Africa’s largest trade union federation) are unified in their stinging criticism of a proposed Bill, it may be the time has come for a redraft. Following 293 condemnatory submissions to the National Council of Provinces’ Ad Hoc Committee, the ANC has begun to make concessions.

In an unexpected volte-face at Committee deliberations last month, the ANC tabled a raft of amendments to the current draft of the controversial Protection of State Information Bill. Key proposals include the insertion of a narrow ‘public interest defence’ in relation to a Clause 43 charge of unlawful disclosure of classified information and scrapping of the intolerably low mental element of constructive knowledge – “ought reasonably to know” – from many of the offence-creating provisions. By virtue of the former amendment, an accused would also be able to rely on a defence of ‘wrongful classification’.

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Interests of children should not prevent extradition for serious offences

HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent); PH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent) [2012] UKSC 25 - read judgment

These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three was whether extradition would be incompatible with the rights of the appellants’ children to respect for private and family life under Article 8 of the ECHR.

Put very briefly, HH and PH had been arrested in Italy on suspicion of drug trafficking. They left Italy in breach of their bail conditions and went to the United Kingdom. They were convicted in their absence. European arrest warrants were later issued. They challenged their extradition on the basis of the effect that it would have on their three children, the youngest of whom was 3 years old.

FK was accused of offences of dishonesty alleged to have occurred in 2000 and 2001. She had left Poland for the UK in 2002 and European arrest warrants had been issued in 2006 and 2007. F had five children, the youngest of whom were aged eight and three. She has not been tried or convicted of the alleged offences yet. Continue reading

BC Supreme Court grasps the nettle in right to die case

Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor v Attorney General of Canada (2012 BCSC 886) 15 June 2012 – read judgment

Interest in the “locked-in syndrome” cases currently before the High Court runs high.  We posted here on the permission granted to locked-in sufferer Tony Nicklinson  to seek an advance order from the court that would allow doctors to assist him to die under the common law defence of necessity.

He is also arguing that the current law criminalising assisted suicide is incompatible with his Article 8 rights of autonomy and dignity. The other case before the three judge court involves another stroke victim who is unable to move, is able to communicate only by moving his eyes, requires constant care and is entirely dependent on others for every aspect of his life. (Philip Havers QC of 1 Crown Office Row is acting for him)

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When is the ECHR going to start watching the EU?

In my post of today about checks on EU legality, I made the point that no institution formally monitors the EU apart from EU institutions. Moves are afoot to change that, though not in a form that diehard Eurosceptics are likely to relish. Article 6 of the Lisbon Treaty of European Union says that the EU shall accede to the ECHR. As and when that occurs, the European Court of Human Rights will assume a formal role in adjudicating upon the legality of EU measures. The details of accession could not be settled by the purely EU Treaty of Lisbon, hence the ongoing negotiations.

 However, things have been happening very recently. Yesterday, 19 June, a joint informal body of members of the European Parliament and Council of Europe parliamentarians welcomed the prospect of talks resuming on EU accession to the European Convention on Human Rights, and, last week, the Committee of Ministers of the Council of Europe decided to pursue negotiations with the European Union with a view to finalising the legal instruments setting out the way in which the EU would accede to the ECHR.

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What have the Inuit got to do with keeping EU law in check?

In a recent post I mentioned that there has been criticism of the scope of the EU Aarhus Regulation inserting provisions about transparency, public participation and access to justice into EU processes themselves. It struck me just how confusing the whole area of EU challenges to EU measures is, so I thought I would summarise it as best I can in this and a following post. Here goes; the going may get a bit bumpy, but it is important stuff. I hope also to give some EU context to the debate about whether something is or is not a legislative act under Aarhus which I trailed in that post.

The EU signed up to the Aarhus Convention on environmental matters, as have all the member states. And the EU has made member states implement Aarhus-compliant procedures in major areas such as environmental impact assessment and industrial emissions, via the 2003 Public Participation Directive. The EU also requires member states to introduce a wide-ranging right to environmental information, transposed in the UK via the Environmental Information Regulations. The European Court has also chipped in with its own Aarhus gloss in the Slovakian Bear case; whenever a member state is considering some provision of EU environmental law, it must interpret that provision, if possible, so that it complies with Aarhus standards of public participation, even though those standards may be in the parts of the Aarhus Convention which have not received their own direct transposition into EU, let alone domestic, law.

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New Publication: ‘Justice Wide Open’ Working Papers – Judith Townend

The real “democratic deficit” in the courts is about limited public access not “unelected judges“, Adam Wagner argued on the UK Human Rights Blog at the weekend, challenging a recent political and media narrative.

In his view, the internet age necessitates “a completely new understanding of the old adage ‘Not only must Justice be done; it must also be seen to be done‘”.

Wagner is one of 14 authors who contributed to a new working publication entitled ‘Justice Wide Open’, produced by the Centre for Law, Justice and Journalism (CLJJ), City University London, following an event on February 29 2012. The individual chapters can be accessed electronically.

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