Gamekeeper’s environmental Aarhus claim to shoot buzzards?

Buteo_buteo_-Netherlands-8McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

An interesting point arose in this judicial review (for which see Rosalind English’s post here). Could the claimant could get the benefit of an order that any costs he might have had to pay were capped at £5,000? The original judge, Thirlwall J, when granting permission, had refused this costs protection. Ouseley J granted it, though, because the claimant won, the order is academic (short of a successful appeal by the defendant). 

This kind of costs protection only applies when the claim is an environmental claim covered by the Aarhus Convention: see a whole list of posts at the end of this one, including the true bluffer’s guide here. The UK has been dragged kicking and screaming into compliance with the Aarhus costs requirements, that environmental challenges not be “prohibitively expensive”, thanks to a combination of the Convention’s own enforcement body and the EU Court in Luxembourg.

But the domestic courts have had some difficulty in deciding what is or is not comes within an environmental challenge.

As we will see, the judge also thought that an Aarhus claim requires a more intensive review of the substantive decision than might have been applied had the claim been a typical domestic challenge on grounds of irrationality. I deal with that point first.

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Bank Mellat and disclosure in closed material proceedings

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2015] EWCA Civ 105, 23 October 2015  read judgment

Bank Mellat is an Iranian bank, initially subjected to a 2009 order which prohibited anybody in the UK from dealing with it – until the Supreme Court quashed it:  here, and my posts here and here.  

The Treasury tried again, by orders made in 2011 and 2012 addressed at all Iranian banks, not just Bank Mellat. The EU has now taken over regulation of these banks.

In the current proceedings, the Bank seeks to set the 2011 and 2012 orders aside. These restrictions are, the Treasury says, addressed at the financing of Iran’s nuclear programme, in which all Iranian banks are complicit. Bank Mellat denies this, and the conundrum in the case is how to make sure that the challenge is fairly tried.  Collins J (my post here) thought that the Treasury had not revealed enough about its case, and, in substance, on appeal the CA agreed.

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Western Sahara goes to Europe

wsaharaR (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA [2015] EWHC 2898 (Admin) Blake J, 19 October 2015 read judgment

Not primarily about migration, but a case arising out of the long-running conflict between Morocco, as occupying power, and the Western Sahara as occupied territory. For many years, the UN has recognised the Western Sahara as a non-self-governing territory which is entitled to exercise its right of self-determination. Morocco does not agree, and has done what occupying powers do, namely send in Moroccan nationals to flood the existing populations, add troops, and commit human rights abuses, according to evidence filed in the case. 

You may be wondering how this North-West African problem got to London’s Administrative Court. This is because the challenge is to two EU measures concerning Morocco. The first is a preferential tariff (administered by HMRC) applicable to imports from Morocco of goods originating from the Western Sahara. The second concerns the intended application of an EU-Morocco fisheries agreement about fishing in the territorial waters of Western Sahara.

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ECtHR judge ponders on EU/ECtHR dogfight, and recent trends of timidity in the ECtHR

david_thor_bjorgvinssonA Political Decision Disguised as Legal Argument: Opinion of CJEU 2/13 – and other things

Over the summer an interesting article was published by Graham Butler, on his interview with David Thor Björgvinsson, former Icelandic judge in the European Court of Human Rights – see here.

One subject was the CJEU’s refusal to permit accession by the EU to the ECtHR (see my post here) – despite the EU’s commitment to accede via Article 6 of the Lisbon Treaty, in December 2009. A Draft Agreement on Accession was concluded in April 2013, but it required the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties – to which the CJEU gave a dusty answer in December 2014.

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Supreme Court: a right to a student loan?

Supreme-Court-5-e1435307932368R (Tigere) v. Secretary of State for Business [2015] UKSC 57, 29 July 2015 read judgment here

Ms Tigere is 20.  She arrived in the UK from Zambia when she was 6. She did very well at school. In 2013, she applied for a student loan to fund a university place.

The current English system does not allow her to apply for a loan, because of her immigration status. In particular, she did not

(1) have Indefinite Leave to Remain  (ILR) here (and so did not comply with the “settlement rule”), and

(2) have three years of “lawful” ordinary residence here (so did not comply with “the residence rule”).

In a very close run thing, the Supreme Court decided that the application of the settlement rule was incompatible with her Convention rights, under Article 2 of the First Protocol and/or Article 14. By contrast, the residence rule was not incompatible with her rights.

The result was 3-2, and Lord Hughes (of the majority) disagreed with important elements of the reasoning of Lady Hale and Lord Kerr who found for Ms Tigere.

The case is a perfect example of the difficulties of deciding human rights cases in the context of social benefits, as we shall see.

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Supreme Court: no-win-no-fee costs regime compatible with Article 6

11769Coventry v. Lawrence [2015] UKSC 50, 22 July 2015, read judgment here

The pre-April 2013 Conditional Fee Agreement system, under which claimants could recover uplifts on their costs and their insurance premiums from defendants, has survived – just. It received a sustained challenge from defendants to the effect that such a system was in breach of their Article 6 rights to a fair trial.

In a seven-justice court there was a strongly-worded dissent of two, and two other justices found the case “awkward.”

The decision arises out of the noisy speedway case about which I posted in March 2014 – here. The speedway business ended up being ordered to pay £640,000 by way of costs after the trial. On an initial hearing (my post here), the Supreme Court was so disturbed by this that they ordered a further hearing to decide whether this was compatible with Article 6 .

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Copying for private use: to be quashed with prospective or retrospective effect?

fva-630-copyright-infringement-dmca-stock-photo-shutterstock-630wBritish Academy of Songwriters, Composers and Authors and others, R(on the application of) v Secretary of State for Business, Innovation and Skills and another [2015] EWHC 1723 (Admin) – read original judgment and [2015] EWHC 2041 (Admin), 17 July 2015 read remedies judgment

On 19 June 2015, Green J ruled that an exception to copyright infringement for private use was unlawful, at common law, because of flaws in the consultation process which had preceded its enactment. See Rosalind English’s post here.

The judge left open for further argument what should be done about this unlawfulness.

The Secretary of State agreed that the offending statutory instrument should be quashed, and that he would re-consider whether a further private copying exception should be introduced.

But the parties disagreed about the date from when it should be quashed. Should it be prospective or retrospective? Or, in the Latin that lawyers still love, ex nunc (from now) or ex tunc (from then)? (Auto-correct so wanted those words to be “ex tune” – which would have been very appropriate, but wrong)

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