R (o.t.a. Dowley) v. Secretary of State for Communities and Local Government  EWHC 2618 (Admin) Patterson J, 20 October 2016 – read judgment
This challenge was about a landowner not wishing to let those wishing to develop Sizewell C nuclear power station onto her land to carry out surveys and investigations. But it came down to a disagreement about the terms which such entry might occur. For s.53 Planning Act 2008 enables the Secretary of State to allow such entry, subject to conditions, and with the proviso that the landowner may claim compensation for “damage caused to lands or chattels” (s.53(7)) via a claim to the Upper Tribunal.
The entry in question was not insubstantial; the developer wished to have access to some 75 acres of the 420 acres of the claimant’s estate, for surveys relating for possible spoil storage, roads and builders accommodation if the project was to proceed.
The major fall-out was over the issue of the extent of compensation. And this, as we shall see, is where human rights came in, albeit in a topsy-turvy way.
R (o.t.a Soma Oil & Gas) v. Director of the Serious Fraud Office  EWHC 2471 (Admin) 12 October 2016 – read judgment
Soma are investing heavily ($40m spent on seismic work) in looking at oil and gas extraction in Somalia, so it was a bit of a set-back, to say the least, when their “capacity-building” efforts – funding infrastructure in the relevant Ministry – were alleged to fall under the Bribery Act 2010, and this led to a fraud investigation by the UK SFO. The investigations, as investigations do, dragged on, and Soma brought these, somewhat ambitious, proceedings to get an order telling the SFO to stop them.
As you may have guessed, the claim failed, though, as we will see, it may have achieved rather different benefits.
The judgment of the Administrative Court is a concise account of when the private challenger can and cannot seek orders in respect of investigations and prosecutions – whether to stop or start them. Here Soma wanted to stop the investigation. In other circumstances, a victim may want the authorities to start an investigation or prosecution into another party: see, e.g. Chaudhry, decided earlier this week.
On the occasion of the publication of the book Parliaments and the European Court of Human Rights by Professors Alice Donald and Philip Leach, Judge Robert Spano of the European Court of Human Rights comments on the general themes presented in the book and its contribution to the ongoing debate on the European Convention on Human Rights and the Principle of Subsidiarity.
A culture of human rights in national parliaments
The effective implementation of human rights requires a culture of human rights at all levels of government as well as in society in general. Therefore, it is a possibly transformative development in European human rights law that the role of national parliaments in the realisation of human rights protection within the Convention system has increasingly become a focus-point in recent years, both at the level of policy within the Council of Europe, but as well, and importantly, at the level of adjudication of actual human rights cases in the Strasbourg Court.
This new book provides an excellent overview of this important development, by highlighting the arguments in favour of a more parliamentary-focussed human rights jurisprudence, while at the same time identifying the potential risks to be addressed in future cases.
As a serving judge of the Strasbourg Court, I would like to make a couple of remarks on the core of the normative argument in this regard, as developed by the authors, on the relationship between human rights, democratic governance and legitimate authority.
The first is a doctrinal point, while the second is more practical.
Understanding Standing: Post 3 of 3 of Article 263(4) TFEU
This is a final post in a series of three on standing in EU law. It will focus on whether the present position under Art 263(4) TFEU satisfies the principle of effective judicial protection.
Part I) Effective judicial remedies.
Effective judicial protection is of a long pedigree. We can trace an embryonic form of this right in the Magna Carta of 1215 which provides, in Article 29, that “no freeman is to be taken or imprisoned or disseised of his (…) liberties (…) save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice” (See also Arts 11 to 13). It also emerged fairly early on in the jurisprudence of the European Union in the mid-1980s, with the CJEU starting to toy with the idea that the effectiveness of EU law could impose certain obligations at the domestic level in order to ensure that effectiveness, Case C-14/83 Von Colson and more famously Case C-410/92 Johnson. The principle can now can be found enshrined in Art 47 of the Charter, as follows:
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. (…)
This Charter has equal status to the other two Treaties constituting the EU, the TEU and TFEU (see TEU, Art 6(1)) Thus, as has been stressed on many an occasion, the very applicability of EU law entails the applicability of the fundamental rights guaranteed by the Charter. In other words, effective judicial protection is a fundamental postulate of EU law – where there is EU law there must be effective judicial protection. Continue reading
Paoletti and others (Judgment)  EUECJ C-218/15 (6 October 2016) – read judgment
The Court of Justice of the European Union (CJEU) has ruled that people smugglers can be punished even if the illegal immigrants themselves have subsequently gained EU citizenship by dint of the relevant country’s accession to the EU.
Legal and factual background
The accused in the main proceedings had illegally obtained work and residence permits for 30 Romanian nationals in 2004 and 2005, before the accession of Romania to the EU. They were therefore charged with having organised the illegal entry of these Romanian nationals “in order to benefit from intensive and ongoing exploitation of foreign labour”. This law was introduced to the Italian criminal code in accordance with the EU directive requiring the prevention and punishment of people smuggling (Article 3 of Directive 2002/90 and Article 1 of Framework Decision 2002/946, which provide that such an offence is to be punishable by effective, proportionate and dissuasive penalties). Continue reading
I am delighted to share that RightsInfo, the UK Human Rights Blog’s sister site, is recruiting a Chief Executive.
RightsInfo’s build support for human rights in the UK by producing engaging, accessible and beautifully presented online human rights content. In just a year and a half, we have built a new digital media space for human rights, featuring award-winning infographics, video, animation and news content. Now we are recruiting a Chief Executive to drive the project to the next level.
Here are the headlines:
- Hours: Full time
- Location: Central London
- Salary: £50k-£60k per year dependent on experience
- Closing date for applications: Friday 4 November 2016, 5pm
Full details, including how to apply, are here
Almost six years ago, not long after this blog started, we published a lovely post by Tom Blackmore, the grandson of David Maxwell Fyfe. Maxwell Fyfe was a Conservative lawyer and politician who went from being the British Deputy Chief Prosecutor at the Nuremberg War Crimes trials to being instrumental in drafting the European Convention on Human Rights.
Since then, I have been trying to find an opportunity to bring this fascinating story to life. So I am delighted to share this short film which RightsInfo, along with the Met Film School, have just released to mark the 70th anniversary of the end of the Nuremberg Trials. Please share widely and enjoy! If you are looking for a subtitled version, click here.
- Read more about David Maxwell Fyfe here
- Read Tom Blackmore’s original post here