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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