Dogfight continues: Strasbourg not happy with EU Court on accession to ECHR

spielmannUnsurprisingly, the Opinion of the EU Court (just before Christmas – my post here) that the proposed accession of the EU to the ECHR on current terms would be unlawful has not gone down well in Strasbourg.

An excellent post today by Tobias Lock on the Verfassungblog tells the story here, but these are the highlights. In short, the President of the Strasbourg Court, Dean Spielmann, added some text to his review of 2014, in a speech given yesterday, 29 January – here.

Lots of interesting stuff on the 2014 ECtHR case law (and case load), but his withering bit on the CJEU’s Opinion is worth quoting.

Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment.

In short, the CJEU is out of line with the views of the member states, and not least with the obligation in Article 6 of the Lisbon Treaty that the EU “shall” accede to the ECHR.

But Spielmann did not leave it at that, as we shall see.

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Human rights: a reality check

919PxBmnG1LMost law undergraduates are familiar with Jeremy Bentham’s dismissal of natural rights as “nonsense on stilts”.  This is a slight misrepresentation of what he said, which was that “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts“. But let’s take the stilts away and consider rights in their ordinary sense. They furnish not only arguments before courts, but reasons for going to war and toppling whole regimes. As Israeli historian Yuval Noah Harari points out in his recent book:

No one was lying when, in 2011, the UN demanded that the Libyan government respect the human rights of its citizens, even though the UN, Libya, and human rights are all figments of our fertile imaginations.

So, might the author have added, are “citizens”, since in a reality without cities and states, it is a non-sequitur to talk of citizens. Continue reading

What price liberty? Damages, DOLS and a cat named Fluffy

Animals___Cats_____Fluffy_cat_showed_language_092535_On 7 January 2015 District Judge Mort of the Court of Protection approved a £60,000 settlement agreement reached between Essex County Council and Mr P ([2015] EWCOP 1). For a discussion of the case generally see Rosalind English’s post here.

With a significant backlog of care home cases in the Court of Protection, P’s case runs the risk of becoming something of a precedent on the question of damages for unlawful detention. However, as far as calculation of damages goes, it is light on analysis of principle. This post seeks to explore whether the considerable case law that has developed on damages for false imprisonment in other situations may help illuminate what this type of case is worth. Continue reading

Catch-33: Stringent documentary requirements upheld for legal aid in domestic violence cases- Vanessa Long and Adam Smith

R (on the application of Rights of Women) v Secretary of State for Justice [2015] EWHC 35 (Admin) – read judgment

legal-aidNeil Sheldon and Alasdair Henderson (instructed by The Treasury Solicitor) acted for the Defendant in this case. They have nothing to do with the writing of this post.

The campaign group Rights of Women has been unsuccessful in its judicial review of Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 (as amended) which sets out the list of documents which will be accepted as evidence that a legal aid applicant has suffered or is at risk of suffering domestic violence. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) purports to retain legal aid for victims of domestic violence. However, such funding is only available where at least one of the documents listed in Regulation 33 is submitted to the Legal Aid Agency. Continue reading

Acquitted defendants costs regime not incompatible with ECHR

448bbd010e93bd0d21e13a354a3cd82bR (o.t.a Henderson) v. Secretary of State for Justice, Divisional Court, 27 January 2015 – judgment  here

The Court (Burnett LJ giving the sole judgment) has ruled on whether the statutory changes made to the ability of acquitted defendants in the Crown Court to recover their costs from central funds are compatible with the ECHR. 

Its answer – an emphatic yes, the new rules are compatible. This conclusion was reached in respect of the two statutory regimes applicable since October 2012, as we shall see.

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Introducing… the Human Rights Information Project

PrintSome exciting news.

I have a new project. The aim is to change the face of human rights. 

As readers of this blog will know, I often complain about bad human rights journalism. But inadequate reporting is a symptom of a deeper problem: poor public understanding of human rights.

It is time to do something about it. Introducing the Human Rights Information Project (HRIP).

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TTIP – more “foreign” judges criticising “our” laws?

ttip-eu-komission-infografiken_englisch_722px_5_0Last week, on 15 January 2015, TTIP was debated in the House of Commons – see here. It is important for us all, but why?

TTIP stands for the Transatlantic Trade and Investment Partnership, a proposed trade agreement between the US, the EU, and various members of the EU including the UK. A sober account of its history and scope was produced for the HoC debate (here), and a rather less polite view is here from George Monbiot. 

Now, TTIP contains the usual things which one might expect to see in a trade agreement, such as the reduction or removal of tariffs between the respective trading blocs. And it comes with the usual accompanying material suggesting that all parties will benefit massively from the deal to the tune of billions of euros.

So what is there not to like?

Well, one part of the concern is that it will confer on investors (think multi-nationals) the right to sue governments for regulatory regimes causing loss of profits to those investors. This ability to sue is known as Investor-State Dispute Settlement or ISDS. And the suing does not happen in domestic courts, but in a special international law tribunal consisting of corporate lawyers drawn from the world over. I shall give some examples below of the sort of litigation engendered in the past by ISDS, so you can assess what this means in practice.

TTIP with ISDS is being enthusiastically backed by the present Government – not hitherto a fan of foreign judges taking charge of how our laws comply with external standards.

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