Government still on the standing warpath


706x410q70fdb2ae613e49ab38bae8e09d0a46a228O (R o.t.a) v. Secretary of State for International Development [2014] EWHC 2371 (QB) 14 July 2014  read judgment

One proposal of the Lord Chancellor on reforming judicial review last year was the narrowing of the tests for standing, namely the ability to come to court and complain about some public law unlawfulness: see, e.g. here. The idea of statutory reform of standing was later shelved, but the current case is an interesting example of the Government probing the boundaries of the tests laid down by the courts.

The underlying dispute concerns the funding of international aid to Ethiopia by DFID. Mr O is an Ethiopian citizen who says he was the victim of human rights abuses in the course of a programme to re-settle villagers in new and larger communes – this programme (the Commune Development Programme or CDP) is said to involve forced internal relocation. As a result, O fled to Kenya, leaving his family behind. There is evidence of widespread human rights abuses perpetrated in this process of “villagisation”.

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Back to basics: why a public authority can’t be an HRA victim

SLMRightToProtestFrontSmall.previewDavid Mead, in an interesting post – here - about “publicness” in section 6 of the Human Rights Act, looks at a case in which the Olympic Delivery Agency got an injunction against protesters: Olympic Delivery Authority v Persons Unknown . The ODA was a public authority, and the protesters were advancing defences under Articles 10 (freedom of expression) and 11 (freedom of association). Arnold J dismissed the defences on the basis that these rights needed to be balanced against the ODA’s rights to property under A1P1

As Mead points out, the judge was probably wrong to do so. On the face of it, the ODA had no rights under the Convention, under A1P1 or otherwise, because it was a public authority, and was likely to be acting as such in its protester-clearing role. One can perhaps save the judge’s blushes, by a slightly different route. The right of free speech under Article 10(1) has to be balanced against the protection of the rights of others under Article 10(2), and the latter would cover the ODA’s property rights which it was enforcing.

But the more fundamental question is why public authorities (think local authorities or NHS Trusts) cannot complain that they are HRA victims. After all, they can be unfairly dumped on by central government, can be lied about, can have their finances cut, their functions or their premises taken away (hospital unit closures), can receive an unfair trial, and ultimately lose their “life” in some governmental reorganisation.

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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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Aarhus for real beginners

aarhus

Aarhus seems to seep into cases everywhere, so I thought it was about time to start from scratch. 

1. What is Aarhus? Denmark’s second city. You can write it like Århus, if you want a bit more Jutland cred. Ryanair fly there-ish (45km away).

2. How do you say it? Something like Orr-hoose: Danes, any better transliteration?

3. Why do lawyers go on about it? Because the UN-ECE Aarhus Convention was signed there in 1998. It came into force on 30 October 2001.

4. UN-ECE? United Nations Economic Commission for Europe, a regional organisation made under Article 68 of the UN Charter

5. What is the Convention about? 3 things (or pillars, in treaty-argot).

  • Access to environmental information
  • public participation in environmental decision-making, and
  • access to justice in environmental matters.

6. Is the UK signed up? Yes, founder member. It ratified it in 2005, when the EU did.

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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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Standing and discretion – who acts for ospreys?

Walton v. The Scottish Ministers, Supreme Court, 17 October 2012 read judgment

The outcome of this challenge to a road scheme near Aberdeen turned on abstruse points about environmental assessment – but the speeches from the Justices go right to the heart of two big questions in public law.

1. When can someone challenge an unlawful act – when do they have “standing” to do so?

2. If an unlawfulness is established, when can the courts exercise their discretion not to quash the unlawful act, particularly where the unlawfulness arises under EU law?

In the course of the standing issue Lord Hope talks about ospreys – hence my title, but a bit more context first. And we shall also see the views of the Court that standing and discretion are linked questions.

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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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Can a state-owned company be a “victim” of human rights violations?

Transpetrol v Slovakia, Application no. 28502/08 - read judgment

The facts of this case can be stated very briefly, since the main (and most interesting) question before the Curt was whether the applicant company constituted a “victim” of a human rights violation under the Convention.

The applicant s a joint-stock company trading in oil.  In the past, including at the time of the contested judgment of the Constitutional Court, the state owned 51% of the shares in the applicant company. The remaining shares were owned by private parties. At present all of the shares in the company are owned by the state.

The application before the Court concerned the fairness of proceedings before the Constitutional Court regarding the ownership of shares in the company.  The applicant company complained that the proceedings were contrary to its rights under Article 6(1) (fair trial) of the Convention and Article 1 of Protocol No. 1 (peaceful enjoyment of possessions). The complaint was dismissed under Article 34 as being inadmissible (incompatible ratione personae, i.e. the status of the applicant). For the purposes of clarity, here is the relevant text of Article 34:

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.  Continue reading

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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Supreme Court judge on war, intelligence and the retreat of judicial deference

The recent standoff  between two leading judicial lights, Jonathan Sumption and Stephen Sedley, may make for entertaining reading, but don’t be fooled.

Like the heated question of whether a non-entrenchment clause could be dug into our law to protect UK parliamentary sovereignty, this one wasn’t about law, or even constitutional theory; it was essentially about differing ideological positions vis a vis judicial power.

Joshua Rozenberg welcomes Sumption’s latest speech as indicative of his supportive stance  on judicial activism, particularly in the foreign policy sphere.  I don’t agree. In his  FA Mann Lecture  last November Sumption pinned his colours to the mast on judicial activism in general, and this latest fascinating survey of foreign policy case law illustrating the retreat of judicial deference must be read in that light. Continue reading

Youth restraint challenge rejected by High Court

The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd  and Serco plc [2012] EWHC 8 (Admin) – read judgment

Although certain restraining measures had been taken unlawfully against young people in secure training centres for a number of years, the court had no jurisdiction to grant an order that the victims of this activity be identified and advised of their rights.

The claimant charity alleged that children and young persons held in one or other of the four Secure Training Centres in the UK had been unlawfully restrained under rules which approved certain techniques of discipline. It sought an order requiring the defendant to provide information, to the victims or their carers on the unlawful nature of restraint techniques used in Secure Training Centres (“STCs”) and their consequential legal rights.

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A shock decision?

JR1, Re Judicial Review [2011] NIQB 5 – Read judgment

A decision of the Northern Ireland high court has highlighted the continued narrow definition of “standing”, or the right to bring a claim, under the Human Rights Act 1998.

An 8-year-old child applied to bring a claim, which included a challenge under Article 2 of the European Convention on Human Rights (the right to life), to the decision by police to introduce tasers in Northern Ireland.

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