Monthly News Archives: September 2013
13 September 2013 by David Hart KC
Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here
“It is well known that in United Kingdom court proceedings are not cheap” – a masterly understatement opening this opinion from our pictured AG to the CJEU about whether the UK system on legal costs complies with the obligation now in two EU Directives about environmental assessment and pollution control. The AG thinks that our way of doing costs is not up to scratch – with the origin of this obligation to be found in the UN-ECE Aarhus Convention to which the EU has subscribed (albeit abstemiously when the EU comes to its own affairs – funny that).
Bit of context – the EU has been warning the UK about costs for some years, with formal warnings going back to 2007 – and the Aarhus Convention Compliance Committee has been doing likewise from Geneva. But the EU courts are more scary – all the ACCC can do is wrap the odd knuckle. And on this topic, we have one individual case which has been to the CJEU (Edwards, where the UK does not look in good shape – see my post), and now this case saying that the UK has a systemic problem with excessive costs.
But one thing we must remember. The law according to the AG looks at the law before the UK had a go at sorting the problem out – see my post, as above. on the new UK regime. There is some important stuff about how the old system did not comply, which will have implications for the new rules.
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9 September 2013 by Rosalind English
Re A (a child) [2013] EWCA Civ 1104 – read judgment
Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8. Whilst this particular appeal was not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”, McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.
The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start. As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. Nevertheless, as the Court of Appeal points out, “substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”
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9 September 2013 by Adam Wagner
The second salvo in the Government’s war against Judicial Review was launched last week. At least, that is what you may think after reading the Lord Chancellor Chris Grayling’s fire-breathing op-ed in the Daily Mail, in which he gets within a whisker of saying Judicial Review was invented by Karl Marx to foment socialist revolution.
“Beware kite flyers“, warned former Court of Appeal judge Sir Stephen Sedley in a recent article. Before Mr Grayling launched his latest kite, Sir Stephen argued that placing a political attack dog in the constitutionally delicate role of Lord Chancellor “exposed the legal system to the vagaries of politics and policy, with profound implications for the rule of law“. Law was hardly insulated before, but it is difficult to remember a Lord Chancellor putting his case in such a nakedly political and incendiary way.
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8 September 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular Olympic opening ceremony of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
Blow out the candles and wish a very happy 60th birthday to the ECHR. That celebration has been the cause of much reflection and commentary, including looking at the UK’s future relationship with the Convention and the Human Rights Act. Elsewhere, the MoJ has released consultations on new criminal legal aid plans and further proposed changes to judicial review.
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7 September 2013 by David Hart KC
ACCC/C/2012/68 read draft findings here and ACCC/C/2010/45 read findings here
Two interesting decisions from the Geneva-based Aarhus Convention Compliance Committee (ACCC) about whether the UK planning system complies with the UN-ECE Aarhus Convention.
The first was given excellent recent coverage in the Independent – a Scottish wind farm case where UK plans for renewable energy had not received the public consultation which Article 7 of the Convention required. The second, which promised much (see my previous post), ducked the issues in a rather unsatisfactory way.
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7 September 2013 by Rosalind English
CM, Re Judicial Review [2013] CSOH 143 – read judgment
The Scottish Court of Session has ruled that the prohibition of smoking and possession of tobacco products by patients at a mental hospital was unlawful. Whilst being careful to emphasise that this ruling did not spell out a specific right to smoke, the Court considered that the ban infringed the patients’ right to respect for home under Article 8.
The petitioner, a patient in a high security psychiatric hospital, sought judicial review of the policy adopted by the State Hospitals Board to ban smoking not just inside the hospital but also in the hospital grounds. He claimed that the ban amounted to a breach of his right to respect for private life and home under Article 8, both as a stand‑alone claim and in combination with Article 14 (enjoyment of Convention rights without discrimination). He also argued that the ban constituted an unlawful and discriminatory infringement of his right to peaceful enjoyment of possessions under Article 1 Protocol 1.
The petitioner further based his position on compassionate grounds, pointing out that there are few diversions available in the State Hospital; that he derived pleasure from smoking; and that as an individual with relatively few liberties the removal of his ability to smoke had had a disproportionately large impact on him.
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4 September 2013 by Guest Contributor
Cross-government coordination on an issue that affects trade, international development, foreign affairs, business activity and human rights is remarkable, especially at such a difficult economic time. So the UK’s Action Plan on Business and Human Rights, which is the government’s long-awaited strategy for implementing the 2011 UN Guiding Principles on Business and Human Rights, is to be applauded for this achievement. Yet, while the Plan establishes clear expectations that UK companies should respect human rights, there are no effective legal requirements placed on them to do so.
In issuing this Plan, the Foreign Secretary and the Business Secretary reinforce the business case for respecting human rights, which includes reputational, legal and investment risk issues, and consumer expectation reasons. They also note that protection of human rights is good for business and communities, as “the thread of safeguards running through society that are good for human rights – democratic freedoms, good governance, the rule of law, property rights, civil society – also create fertile conditions for private sector led growth”. Adam Smith thought that this was required over two and a half centuries ago.
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4 September 2013 by Guest Contributor
Yesterday Sir Nicolas Bratza spoke candidly about the responsibility of certain UK politicians and media outlets in tarnishing this countries human rights legacy. He called on lawyers and NGOs to help rekindle the fire for human rights at home.
At an event hosted by the British Institute of Human Rights (BIHR) and the Law Society – “Sixty years of the European Convention on Human Rights (ECHR): What does the future hold?” – politicians, legal practitioners, civil servants, academics and activists debated the impact of six decades of the UK’s membership of the ECHR.
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3 September 2013 by Adam Wagner
Six decades ago today, the European Convention on Human Rights came into force. It all started brightly, as a post-war, British-led pact against Fascism and Communism. Now, human rights are under heavy, relentless attack. Politicians, press and public seem to have an endless appetite for tales of human rights gone wrong. The Justice Secretary has recently said “all options are on the table” for “major change” on human rights, and it is likely that the future of the ECHR will be a major general election issue in 2015. In short, the UK may soon withdraw from the longstanding international human rights system which it was instrumental in creating.
That would be a great mistake. It is often said that human rights are something foreign to the UK, whose proud common law tradition negates the need for these “European” protections. But even a brief consideration of the ECHR’s history shows how wrong that perspective is. The ECHR was a fundamentally British document which has had an enormous, beneficial effect. We should be proud of its history, and would be quite mad to reject it now, six decades on.
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2 September 2013 by Adam Wagner
Liberty, the human rights organisation, is looking for qualified and qualifying lawyers to staff its advice line.
This is a great opportunity – you can trust me on that, as I did it for a year whilst I was a pupil barrister. I learned a huge amount about practical human rights issues, as well as meeting some great people. The advice line provides an essential service to those who are unlikely to be able to obtain advice anywhere else.
All details after the break below, and on this flyer (PDF).
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2 September 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular glittering galaxy of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
Military intervention in Syria has been greatly discussed this week in the media. Here, we look at how legal it would be for the UK to send troops over. Meanwhile, David Miranda’s hearing continues, and many judicial review claims are due, soon, to move from the High Court to the Upper Tribunal.
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Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here 
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