Aarhus shows its teeth to Belgium

C-128/09 Boxus, CJEU, 18 October 2011

Belgium and its airports seem to have been skirmishing with the European Union Courts for some time now. First, in 2008, the ECJ in Abraham decided that a major and well-established expansion of Liege-Bierset airport required Environmental Impact Assessment (EIA), contrary to the contentions of the airport and its operators. Our case, Boxus, concerns a raft of challenges to consents for that airport expansion, and to similar projects affecting Charleroi airport and railways. These challenges ended up in front of the Court of Justice of the European Union on more EIA issues.   This time, it appears that the Walloon Region of Belgium had become impatient with continuing court challenges – so it resorted to Parliamentary Decree, in which Parliament “ratified” the various planning consents.

Hey, presto, the Region thought, any defects in previous procedures are solved, and the court proceedings will fall away – or will they?  Enter, on a white charger, the Aarhus Convention to the aid of the challengers.

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The Supreme Court’s terrible twos?.. The Human Rights Roundup

Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

The Supreme Court and the European Court of Human Rights have featured prominently in the legal news this week. Let’s find out why.

The Supreme Court’s ‘terrible twos’?

The Supreme Court has become a toddler, celebrating its second birthday last week. The Guardian has produced a video interview with the justices as well as an article with some of the Justices who attempt to demystify the Courts’ processes. But will its birthday mark the beginning of the court’s ‘terrible- twos’?

Lady Hale, the only female Justice, has certainly been vocal of late. Calling for more diversity amongst the judiciary, Hale argues that we need to “think of the very able people that are doing … less visible forms of practice, rather than just thinking about the top QCs”; representing a possible contrast to the other male Justices who argue that promoting diversity over merit would be a “great mistake”.

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Air quality and legitimate expectation: the full judgment in the Cornwall Waste Forum case

R (o.t.a Cornwall Waste Forum, St Dennis Branch) v Secretary of State for Communities and Local Government [2011] EWHC 2761 (Admin) Collins J, 13 October 2011

I did a recent post on this case based upon a very short report; the full transcript of the judgment is now available. The case concerns who is to decide issues of air quality in a planning case about incinerators/energy-from-waste plants.

The headlines are as before – but there is a good deal in this judgment, particularly for those interested in conservation issues, as well as that vexed question of when a legitimate expectation may arise in the course of a hearing. Sadly, the judgment is still not available on an open access website such as Bailli – bless it, per Adam Wagner’s post– but I hope that will change soon.

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Is the Attorney General right on prisoner votes and subsidiarity? – Dr Ed Bates

In his speech earlier this week the Attorney General announced that he would appear in person before the Grand Chamber of the European Court of Human Rights in two weeks’ time, when it hears Scoppola v Italy No2, a case concerning prisoner voting. The United Kingdom is due to intervene in this case, for reasons that readers of this blog will be fully aware of.

I agree with Adam Wagner’s comments that the Attorney General’s speech should (if I may respectfully say so) be applauded for the mature and positive way it addressed some very important issues regarding the future protection of human rights at both the domestic and European level. Here I would like to focus in particular upon what Dominic Grieve said about prisoner voting, and his forthcoming appearance at Strasbourg. On page 9 of his speech he stated:

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Times can use leaked Police documents in libel defence

Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor [2011] EWHC 2705 (QB) (24 October 2011) – Read judgment.

Mr Justice Tugendhat has held that, with restrictions, The Times Newspapers Ltd (TNL)  should be allowed to use information from leaked documents in its defence to a libel claim brought by the Metropolitan Police Service and the Serious Organised Crime Agency (SOCA). However, proportionality limited the reach of this judgment to the next stage in the libel claim, after which reassessment may be necessary.

It was held that restrictions in the order made did not interfere with TNL’s right to a fair trial in the libel case nor offend its right to freedom of expression. Decisions on specific documents was dealt with in a closed judgment because of the sensitivity of the subject matter.

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A grown-up speech on human rights reform

At around the same time that 79 Conservative Party MPs were rebelling over a European referendum, the Conservative Attorney General was giving a very interesting speech entitled European Convention on Human Rights – Current Challenges.

In a month in which the Justice Secretary called part of the Home Secretary’s speech on human rights “laughable” and “childlike”, Dominic Grieve presented a refreshingly grown-up argument on human rights reform.

The speech is worth reading in full. Grieve presented the Government’s arguments, most of them already well-known, on why the Human Rights Act needs to be replaced by a Bill of Rights. There were no big surprises; his central theme, subsidiarity, that is the European Court giving member states more space to set their local social policy, is something which the Justice Secretary has spoken about – see my post on his evidence to the European Scrutiny Committee.

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Right to family life should not interfere with EU system for allocating asylum responsibility

N.A. (Iran) v Secretary of State for the Home Department  [2011] EWCA Civ 1172 – read judgment 

This application raises a significant issue about the treatment of vulnerable asylum-seekers and their children following certification of their claim as clearly unfounded.

It concerned the interface between state authorities’  obligations under the EU system of determining responsibility for examining asylum claims under the Dublin II Regulation (2003/34/EC), on the one hand, and their obligations under the European Convention of Human Rights on the other. Although Convention rights theoretically form part of the “principles” of EU law, this case is a neat illustration of how the states’ duties under the two regimes are subtly different, and how attentive the courts have to be to the individual circumstances of the case.

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