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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Scotland, Sewel, and the Human Rights Act

Photo credit: Guardian

Photo credit: Guardian

The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK. 

Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side. 

But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?

Sort of (not really).

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TTIP news, and whether the UK should encourage big business to sue it

GET_3A2_shutting_down_nuclear_plants_lQuite a lot has happened in the 6 months since my post here on the Transatlantic Trade and Investment Partnership (TTIP). TTIP is a proposed trade agreement between the US and the EU, with negotiations on the substantive issues between the EU and the US underway in Brussels at the moment.

The proposed treaty may have significant effects on EU regulation, but let’s concentrate on whether TTIP should contain specific provisions enabling investors to sue governments.

The ground for action would be governmental “expropriation” of investments – and that may mean anything from telling a cigarette manufacturer that he must have to change what his packets look like, (with consequential loss of profits), to imposing new environmental standards on a power generating plant.

This mechanism is known as Investor-State Dispute Settlement or ISDS. Our government seems astonishingly sanguine about this, on the basis that it has not yet been sued successfully under existing bilateral treaties with similar provisions. This does not seem to be a very profoundly thought-through position to adopt, if the proposed system has its problems – which it plainly does, when one compares it with traditional claims in the courts. Put simply, why wave it on?

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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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The round-up: more righteous indignation about the Human Rights Act – in both camps.

hot_airIn the news

We can be sure of one thing. A battle is coming.” The future of the Human Rights Act still dominates the news, and this quote comes from UKHRB’s Adam Wagner, who suggests five tactics to ensure that human rights are not eroded. Perhaps the most in-depth analysis to date comes from Jack of Kent, who isolates the “seven hurdles” facing the government, including  Scotland, Tory backbench rebels, the House of Lords and the wording of the “British Bill of Rights” itself. He summarises:

So the current situation is: if the UK government can address the immense problems presented by Scottish devolution and the Good Friday Agreement, win-over or defeat Conservative supporters of the Act, shove the legislation through the house of lords, work out which rights are to be protected, somehow come up with a draft Bill of British Rights, and also explain why any of this is really necessary, and can do all this (or to do something dramatic) in “one hundred days” then…the Conservatives can meet their manifesto commitment in accordance with their ambitious timetable. But it seems unlikely.

Jack of Kent´s conclusion is echoed by Matthew Scott in the Telegraph (“Gove…faces almost insurmountable odds”), Mark Elliott in Public Law for Everyone (“the HRA…is far more deeply politically entrenched that the UK Government has so far appreciated”) and the Economist (“getting rid of the HRA will be tough – and almost pointless”). Continue reading