Inuit 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.
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.
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.
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
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.
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
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  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.
JR1, Re Judicial Review  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.