Supreme Court on EU and ECHR proportionality – back to basics

seo-marketing-320x200R (ota Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015 (see judgment)

The Supreme Court has reminded us, in a tour de force by Lord Reed, that there is no such thing as one-stop proportionality. It varies between ECHR and EU law, and the tests of EU proportionality then vary according to the nature of the EU issue in play.

And all this in a case about trying to improve standards for barristers’ advocacy.

Barristers challenged the Quality Assurance Scheme for Advocates or QASA, on EU grounds. QASA requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.

Its EU-ness arises in this way.

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Bank Mellat’s $4bn A1P1 claim gathers pace

bank_MellatBank Mellat v HM Treasury [2015] EWHC 1258 (Comm), Flaux J, 6 May 2015, read judgment

Two recent judgments underscoring the potential high cost of the UK getting it wrong in its dealing with businesses and hence being liable to pay damages under the Human Rights Act for breach of its A1P1 obligations. Regular readers will know that A1P1 is the ECHR right to peaceful enjoyment of property.

The first case was the photovoltaics case of Breyer, all about reducing renewables subsidies unfairly: see my post of last week here. The second, this case, involves a much more direct form of impact, namely the Treasury’s direction under the Counter-Terrorism Act 2008 that no-one else should have any commercial dealings with Bank Mellat, because, the Treasury said, the Bank had connections with Iran’s nuclear and ballistic missile programme. 

Bank Mellat’s challenge got to the Supreme Court: see judgment and my post. The Court (a damn’d close run thing – 5:4) concluded that the direction was arbitrary and irrational and procedurally unfair. The nub of the complaint is that there were other Iranian banks against whom this very draconian measure was not taken, and that there was nothing specific about the Bank which made it more implicated than the rest of the banking system.

The Supreme Court remitted the case for trial as to HRA damages.

The current judgment of Flaux J is the first stage in that trial process. As we will see, Bank Mellat are distinct winners at this stage.

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A1P1 claims by photovoltaics get to the Court of Appeal

Department of Energy and Climate Change v. Breyer Group plc and others  [2015] EWCA Civ 408, 28 April 2015 read judgment

In 2011, DECC decided to change the rules about subsidies for photovoltaic schemes, and caused substantial losses to those who had contracted or were about to contract on the basis of the more generous old subsidies. 

This is prime territory for a damages claim under A1P1 ECHR. The Court of Appeal has recently dismissed an appeal by DECC against a decision of Coulson J (see my post here) supportive of such claims.  The decision was on preliminary issues involving assumed facts, but important legal arguments advanced by DECC were rejected by the CA. 

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Supreme Court: no excuses, UK must comply with EU air pollution law

NO2_PicR (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs, Supreme Court, 29 April 2015, judgment here

Bit of a history to this one, with 5 hearings so far. The short version is that in May 2013, the UK Supreme Court (here), faced with the UK’s non-compliance with EU Directive 2008/50 (nitrogen dioxide etc in air), decide  to refer various issues to the CJEU in Luxembourg.  In 2014, the CJEU said its piece, (C404-13 and my post here), and its views are now considered by the Supreme Court, hence this second SC judgment.

The UK has been in breach of Article 13 of the Air Quality Directive since 1 January 2010, by not complying with pollution limits in specified areas. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and the lower courts said that, given that admission, it was for the EU Commission, if it wished, to take infraction proceedings.  The Supreme Court’s 2013 judgement disagreed; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning and enforcement of the Directive to the CJEU.

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Why we should see Andrew Lansley’s diary in the run up to 2011 NHS reforms

article-2122241-1243AB4D000005DC-216_468x286Department of Health v. Information Commissioner et al [2015] UKUT 159, 30 March 2015, Charles J read judgment Simon Lewis requested that the Department of Health supply him with copies of the ministerial diary of Andrew Lansley from May 2010 until April 2011, via a Freedom of Information request. Mr Lewis’s interest in all this is not revealed in the judgment, but I dare say included seeing whether the Minister was being lobbied by private companies eager to muscle in on the NHS in this critical period. But such is the nature of FOIA litigation that it does not really  look at the motive of the requester – and this case does not tell us what the diary showed. Indeed by the time of this appeal, Lewis was untraceable, and the burden of the argument in favour of disclosure was taken up by the Information Commissioner.   The real interest in this decision is in Charles J’s robust agreement with the First Tier Tribunal that the information should be disclosed. In so doing, he fully endorsed the criticisms made by the FTT of the eminent civil servants who gave evidence before the FTT – in trenchant terms, as we shall see. He also gave an interesting account of how the public interest qualification should be applied in response to FOIA requests. Continue reading

Car crash Euro-damages against government upheld by CA

weed_2929857bDelaney v. Secretary of State for Transport, Court of Appeal, 9 March 2015 – read judgment 

The Court of Appeal has recently upheld the decision of Jay J here that a drug-dealer was entitled to compensation against the Government for injuries in a car accident, even though at the time he and the negligent driver both had drugs on them. 

The Government was involved because the driver’s insurance was invalidated because of his cannabis use, and because the Government had not made provision for these liabilities to be picked up by either by insurers or the Motor Insurers Bureau (MIB), as it should have done under EU Law.

Mr Delaney therefore recovered state liability damages – which lawyers know as Francovich damages – from the Government.

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Supreme Court – the right to be on the beach

_50586770__49414358_2b0a52bb-7425-4bca-b5ff-2253df1dc7fa-1The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council  [2015] SC 7 25 February 2015- read judgment

Late February is not necessarily the best time of year for a bit of UK sea swimming. But the Supreme Court has just come out with interesting judgments about whether there is a right to go to the beach and swim from it. For reasons I shall explain, they were anxious not to decide the point, but there are some strong hints, particularly in the judgment of Lord Carnwath as to what the right answer is, though some hesitation as to how to arrive at that answer. 

It arose in a most curious setting – East Sussex’s desire to register West Beach, Newhaven as a village green under the Commons Act 2006. But a beach cannot be a village green, you may say. But it is, said the Court of Appeal (see Rosalind English’s post here), and the Supreme Court did not hear argument on that point.

Now to the background for the present decision.

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