No standing for the Inuit in Luxembourg

ipTteC6iztnEInuit Tapiriit Kanatami et al v. European Parliament, CJEU, 3 October 2013 (read judgment), following Advocate General Kokott, 17 January 2013, read opinion and my post

This important case is all about “standing” before the EU courts, namely the ability to complain about some EU act that affects you. Lack of standing means that even if a measure was wrong and unlawful, you cannot get your foot in the door of the court. Domestic rules are quite relaxed, though proposals by Government to make it more difficult to sue Government and other public authorities are currently being consulted upon. But you cannot say that an EU law is unlawful without going to Luxembourg.

The EU Courts have always been very restrictive about the circumstances in which an individual can do so. A brief blip (C-50/00 UPA) a few years ago by a UK Advocate-General suggesting that things be done differently was squashed by the Court. And since then it has been one-way traffic in the EU Courts, brushing off criticism from NGOs and indeed the Aarhus Convention Compliance Committee in 2011 (see here). For a good summary of the EU case law up to 2011, see the ACCC at [20]-[31]

Recent Treaty amendments in Lisbon have, it will be seen, made little difference to the result.

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Is rights replication undermining the international human rights system?

6a00d834515c2369e201157066f06e970b-800wiRapid expansion of human rights obligations at the European and international levels arguably undermines the system of International Human Rights Law. Countries like the UK, which place strong emphasis on the need to protect individuals from abuses, are faced with ever more obligations stemming from rights inflation. One crucial way in which this occurs is through rights replication.

No-one can legitimately argue that women, children, persons with disabilities, migrant workers, human rights defenders and other vulnerable groups do not need protecting from human rights abuses. Where those groups require additional rights then of course it makes sense for them to be enshrined within treaties. Yet the many treaties, resolutions and declarations about those groups almost always focus on rights that already exist for all individuals. Often these are civil and political rights, which can be found within international and regional treaties. Replicating these rights, rather than creating new additional ones, weakens and undermines the human rights system.

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Chakrabarti debates Clarke on secret courts bill

ClarkerabartiThe Constitutional and Administrative Bar Association (ALBA)  hosted an invigorating debate on Tuesday night, pitting Minister without Portfolio Ken Clarke against Shami Chakrabarti, Director of Liberty, over the question of Closed Material Procedures (CMPs) in civil claims, as proposed in the Justice and Security Bill.

The Bill is currently going through the parliamentary process, having reached the report stage in the House of Commons on 4 March 2013. Of particular note to those with an interest in human rights are the proposals to introduce CMPs into civil damages actions, where allegations such as complicity in torture by the UK intelligence agencies are made.

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Inuit, standing and the gates to the Luxembourg Court

flagInuit Tapiriit Kanatami et al v. European Parliament opinion of Advocate General Kokott, 17 January 2013, read opinion, on appeal from the General Court read judgment & my post on it

The EU makes a rule. When can the ordinary person affected seek annulment of the rule on the basis that it is unlawful? This is the big issue tussled with in this important and informative Advocate General’s opinion. You might have thought that if the basic ground for challenge was unlawfulness (and that is a high hurdle in itself), then as long as you were in some way affected by the decision, then you should be able to complain about the decision. That is broadly how we do things here in our UK system of judicial review.

But when you get to the EU Courts very different rules of engagement apply – far fewer people can complain about the illegality directly.

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A bluffer’s guide to human rights courts

Back to basics, then, as the new academic year starts. Which courts decide human rights cases, when, and by what rules?

Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act.

If the act is a decision about housing or immigration status or prisoners’ rights, the courts can quash it, and so tell the decision-maker either to decide it again or if there is only one lawful answer, tell the decision-maker what decision to take. If it was a past course of conduct (unlawful detention, intrusion into privacy, unacceptable pollution), they may award damages for human rights breaches. If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to Parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant’s human rights.

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“No precedent? Then set one!” – Nicklinson right to die case

Updated – Tony Nicklinson, one of the two claimants in this case, died on 22 August 2012.

This is Richard Dawkin’s battle cry in response to the recent High Court rejection of the challenge by locked-in sufferers to the murder and manslaughter laws in this country that have condemned them to an unknowable future of suffering.

As explained in my previous posts, Nicklinson, who suffered a catastrophic stroke in 2005, argued for an extension to the common law defence of ‘necessity’ for murder because the alternative – forcing him to stay alive – is worse. His lawyers also submitted that the government is in breach of his Article 8 right to ‘privacy, dignity and autonomy’, a right he cannot exercise independently because of severe disability.

The court rejected the “bold” submission, stating that there was no precedent anywhere in the world and such socially controversial changes were only for Parliament.

But the courts can’t keep ducking away from the problem, because Parliament is never going to address this issue. Why? Because, as Dawkins points out, once again, religion turns out to be the major culprit. Every attempt in the House of Lords “to do something about the right to seek professional (or even amateur) assistance in dying when you are too incapacitated to kill yourself” has crashed and burned, despite huge public support for reform in this area. Continue reading

A tinge of green in our Bill of Rights?

Amidst the root and branch opposition to socio-economic rights from some quarters, the idea that the Bill of Rights might contain an environmental right seems to have got lost in the smoke of this rather unedifying battle. The July 2012 Consultation on a Bill of Rights summarises the rival contentions well – see below.

I am ducking well away from the underlying question – should there be a Bill of Rights at all? – but support the proposition that, if there is to be such a Bill, it should contain some provision about the environment. Answers on a postcard to the Commission by 30 September, please, whether you agree or disagree with me, but in the interim, here is my penn’orth.

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“Locked-in” sufferer’s challenge to ban on voluntary euthanasia fails in the high court

The Queen(on the application of Tony Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin) – read judgment

Lord Justice Toulson, sitting with Mrs Justice Royce and Mrs Justice Macur, has  handed down judgment in the case of Tony Nicklinson and that of another “locked-in” syndrome sufferer, “Martin”. On all the issues, they have deferred to parliament to take the necessary steps to address the problems created by the current law of murder and assisted suicide.

Philip Havers QC  of 1 Crown Office represented Martin in this case. 

Tony Nicklinson sought a declaration of immunity from prosecution for a doctor who would give him a fatal dose of painkillers to end his life in Britain. He also sought a declaration that the current law is incompatible with his right to respect for private life under article 8, contrary to s1 and 6 of the Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.

Martin’s claim was slightly different as his wife does not want to do anything which will hasten his death. He therefore asked for permission for volunteers to be able to help him get to the Dignitas clinic in Switzerland (under recent guidelines from the Director of Public Prosecutions only family members or close friends who are motivated by compassion are unlikely to be prosecuted for assisting a suicide). In the alternative he sought a declaration that section 2 of the Suicide Act is incompatible with the right to autonomy and private life under Article 8 of the European Convention.  Continue reading

How most Australians do human rights without a Human Rights Act

A sparkling, erudite and funny lecture last Thursday 5 July from the Chief Justice of Australia, exploring how the Australian system with a constitution, but without a Bill of Rights/Human Rights Act, seeks to deliver human rights protection – thanks to the Administrative Law Bar Association and the Angl0-Australasian Law Society. I shall try to summarise the differences, though, rather like the pre-HRA UK position, Australian human rights protection is a subtle one and a difficult one to explain in a short post. Particularly for a Pom. So I am in part throwing down a challenge to our Australian readers (up until this point, at least, quite a few) to comment on what follows.

The constitutional framework  is all important. There are three major differences between this and the UK “constitution”. The first is the presence of a written constitution over 100 years old, and amendable only by referendum. The second is a federal system laid down by that constitution. Out of that arrangement comes a separation of powers between judiciary, legislature, and executive, and also between the Commonwealth (i.e, the federation) and each State, taken against the background of general common law principles drawn from the States’ shared colonial history. And the third is the lack of any substantive human rights instrument applicable to Australia as a whole.

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When the EU implements Aarhus against itself, oh, how minimally it does it.


On the EU watch again, I am afraid. We have looked at getting documents out of the EU, in the context of the IFAW case about the German Chancellor’s letter, via Regulation (EC) No 1049/2001 (the EU Access to Information Regulation). And also on how to seek annulment of  EU laws and decisions from the EU courts (Inuits and all that). Both apply to all EU issues. We have mused on what might happen if the EU institutions sign up to the ECHR, so that complaints about them can go to the Strasbourg Court.

Now we return to environmental cases, where there is a specific measure, EU Aarhus Regulation 1367/2006, which applies the Aarhus Convention to EU institutions. We have seen how in a specific context this Regulation must be interpreted in the light of the meaning of the Convention:  my post on the pesticides and air quality challenges, where the General Court of the EU effectively ignored the words “of individual scope” in the Regulation to make the Regulation comply with the Convention. But I am now going to have a look at this measure more generally. Remember we are not here dealing with getting environmental information out of member states; that question is dealt with via a separate EU Directive (2003/4), transposed in the UK by the Environmental Information Regulations 2004.

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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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UK passes ‘human rights exam’, but with room to improve

Last week the UN Human Rights Commissioner published the draft report of the second Universal Periodic Review (UPR) of the UK’s human rights record (draft report here,  webcast of the UPR session here). The UPR involves delegations from UN member states asking questions and make recommendations to the UK government on the protection of human rights, which the government will consider before providing its response. The report is extremely wide-ranging, perhaps to its detriment, though many valuable and interesting insights are provided.

The UPR process was established in 2006. It involves a review of all 192 UN member states once every four years. As readers of this blog will know, the protection of human rights has a troubled recent history in the UK, with newspaper campaigns against “the hated Human Rights Act” providing the background to government pronouncements on human rights that veer from the sensible to the ridiculous. In this context, the UPR provides a valuable attempt at a serious assessment of human rights in this country.

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Should we outlaw genetic discrimination?

The late US law Professor Paul Miller reflected recently that Beethoven, Stephen Hawking and Elton John were examples of individuals whom, if they had been tested for serious genetic conditions at the start of their careers, may have been denied employment in the fields in which they later came to excel.

Earlier this month the Association of British Insurers announced the latest extension on the moratorium on the use of genetic test results for insurance purposes. But is this “Concordat” sufficient protection? Genetic technologies are becoming increasingly available and profound questions are arising in relation to life and health insurance and employability as genetic screening becomes cheaper and widespread.

According to the Human Genetics Commission (HGC)

The advent of cheap whole-genome sequencing, and greatly reduced costs for genetic tests in general, will provide the platform for genetic testing to be used for novel and unpredicted purposes. (Report on The Concept of Genetic Discrimination, Aril 2011) Continue reading

New report on worldwide human rights and democracy

The Foreign and Commonwealth Office has launched the Human Rights and Democracy- The 2011 Foreign & Commonwealth Office Report, which aims to provide “a comprehensive look at the human rights work of the Foreign & Commonwealth Office (FCO) around the world in 2011“. The report makes for essential reading for anyone with an interest in human rights at the global level.

The report contains a section devoted to the Arab Spring, which it describes as being “about citizens demanding their legitimate human rights and dignity” and having “no single cause“. The report also comments on the role of human rights protection in safeguarding Britain’s national security and promoting Britain’s prosperity.

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Is climate change a human rights issue?


In his thought-provoking Guardian post Climate change is a human rights issue – and that’s how we can solve it, Olivier De Schutter, UN Special Rapporteur on the right to food, makes a case for human rights playing a radical new part in our response to climate change.

His argument involves a number of propositions:

(i) global climate talks have reached an impasse;

  • yes, indeed, and from today’s perspective, there is no obvious way through that impasse;

(ii) carbon emissions cannot possibly be stalled or reversed until our politicians recognise that continued economic growth is inconsistent with a long-term climate change strategy;

  • many would agree that we can spend a bit of time deck-chair re-arranging or limiting increases in emissions, but the time will come when the world economies have to stop growing;

(iii) if that direction is not going to come from our politicians, then

 those political processes are clearly not fit for purpose.

Does this mean that democracy has failed, and must be sacrificed for authoritarian solutions? The solution may in fact be the polar opposite. A system where failing governance procedures are forced to think long-term does not necessarily require anti-democratic “climate tzars”. Instead, this revolution can be hyper-democratic and guided by human rights.

Climate change represents an enormous threat to a whole host of human rights: the right to food, the right to water and sanitation, the right to development. There is therefore huge scope for human rights courts and non-judicial human rights bodies to treat climate change as the immediate threat to human rights that it is. Such bodies could therefore take government policy to task when it is too short-sighted, too unambitious, or too narrowly focused on its own constituents at the expense of those elsewhere. Fossil fuel miningdeforestation, the disturbance of carbon sinks, and the degradation of the oceans are developments that can be blocked on human rights grounds.

Whoa, slow down!

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