Local authorities and judicial review: they should not put their heads completely in the sands

728631_de6cf1deMidcounties Co-Operative Ltd v. Forest of Dean [2015] EWHC 1251 (Admin) 6 May 2015, Singh J, read judgment here

Out of what some may think to be an everyday spat between the Co-Op (existing  supermarket) and an out-of-town supermarket proposer, comes a salutary reminder from Singh J that local authorities cannot behave like private litigants when they are judicially reviewed. Different rules apply.

A little bit of context. Cinderford, like many small towns, has been subject to supermarket wars for some years. Unfortunately, the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, and then twice, and then, as we shall see, for a third time. And the response on this last occasion to the challenge – we disagree with the challenge, but we won’t appear to dispute it, and will leave it all to the supermarket to whom we gave planning permission to say why we were not unlawful in granting them permission.

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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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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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Dogfight continues: Strasbourg not happy with EU Court on accession to ECHR

spielmannUnsurprisingly, the Opinion of the EU Court (just before Christmas – my post here) that the proposed accession of the EU to the ECHR on current terms would be unlawful has not gone down well in Strasbourg.

An excellent post today by Tobias Lock on the Verfassungblog tells the story here, but these are the highlights. In short, the President of the Strasbourg Court, Dean Spielmann, added some text to his review of 2014, in a speech given yesterday, 29 January – here.

Lots of interesting stuff on the 2014 ECtHR case law (and case load), but his withering bit on the CJEU’s Opinion is worth quoting.

Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment.

In short, the CJEU is out of line with the views of the member states, and not least with the obligation in Article 6 of the Lisbon Treaty that the EU “shall” accede to the ECHR.

But Spielmann did not leave it at that, as we shall see.

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TTIP – more “foreign” judges criticising “our” laws?

ttip-eu-komission-infografiken_englisch_722px_5_0Last week, on 15 January 2015, TTIP was debated in the House of Commons – see here. It is important for us all, but why?

TTIP stands for the Transatlantic Trade and Investment Partnership, a proposed trade agreement between the US, the EU, and various members of the EU including the UK. A sober account of its history and scope was produced for the HoC debate (here), and a rather less polite view is here from George Monbiot. 

Now, TTIP contains the usual things which one might expect to see in a trade agreement, such as the reduction or removal of tariffs between the respective trading blocs. And it comes with the usual accompanying material suggesting that all parties will benefit massively from the deal to the tune of billions of euros.

So what is there not to like?

Well, one part of the concern is that it will confer on investors (think multi-nationals) the right to sue governments for regulatory regimes causing loss of profits to those investors. This ability to sue is known as Investor-State Dispute Settlement or ISDS. And the suing does not happen in domestic courts, but in a special international law tribunal consisting of corporate lawyers drawn from the world over. I shall give some examples below of the sort of litigation engendered in the past by ISDS, so you can assess what this means in practice.

TTIP with ISDS is being enthusiastically backed by the present Government – not hitherto a fan of foreign judges taking charge of how our laws comply with external standards.

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Why the Court is in Strasbourg – and other things

strasbourgcathedral2Like lots of things to do with the ECHR, the idea seems to have been British. As Simpson put it in his magnificent history of the Convention, Human Rights and the End of Empire (OUP, 2001), Our Man (Jebb), in early 1949, appears to have suggested the site of the Council of Europe should be Strasbourg 

not for its architectural or gastronomic qualities, much less for its geese, but because of its symbolic significance for Franco-German reconciliation

Quite obvious, when you think about it. I was spurred into this by my winter festival reading, Neil MacGregor’s Germany.

Strasbourg commands a chapter, Floating City. Floating, because it swapped between Germany and France regularly, with increasing rapidity in the run up to the ECHR in 1950.  Formerly known as Strassburg, it had been emphatically part of the Holy Roman Empire, an Imperial city, a bishopric and German-speaking, until Louis XIV nicked it in 1681 – in war. The French were wise enough to administer it with a light touch – German remaining the predominant language – so it remained nominally French until 1871. Indeed, Goethe (and Metternich) studied there, and Goethe lauded the Gothic mediaeval cathedral (see pics) as reflecting supremely German architecture (Von Deutscher Baukunst) –  which of course it wasn’t, given that Gothic architecture derives from France. Continue reading

EU judges oppose accession of EU to ECHR

Dog_SeatOpinion of CJEU, 18 December 2014 – read Opinion

Well, here’s a thing. The EU top court in Luxembourg has decided that it is somehow against the EU treaties for it to defer in specific instances to the other European top dog, the ECtHR in Strasbourg.

Accession of the EU to the ECHR has been a very slow-burn process, with the Commission starting things off in 1979 (sic). The breakthrough, or so it appeared at the time, was the entry into force of Article 6 of the Lisbon Treaty of European Union, in December 2009. This (Art.6(2)) makes it a treaty obligation  that the EU

“shall accede to the ECHR”.

Nice and simple then? No, not exactly, when you look at the extremely complex  Draft Agreement on Accession of the European Union to the European Convention on Human Rights, concluded in April 2013- my post here. This seeks to make the adjustments to both the EU and ECHR institutions enabling a non-state organisation such as the EU to sign up to the ECHR.

One of the steps contemplated by the draft Agreement was the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties. And the CJEU’s firm “non” to that question will inevitably set back the process, if not lead to its complete derailment.

The Opinion has already been well analysed by Aidan O’Neill QC here and Steve Peers here, neither in terms flattering of the CJEU. It is of some importance, so here is my penn’orth.


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