... and pests are misplaced animals. We are all too familiar with the stories of mayhem caused by urban foxes released into the countryside, and the collapse in property value where Japanese knotweed is found to have invaded. The perpetrators of such damage are rarely identified and brought to account. So it is with a level of glee that the prosecution of two “Buddhist activists” has been reported in the media after they released nearly a thousand alien crustaceans off the coast of Brighton.
“Banker” Ni Li and “estate agent” Zhixong Li bought the live American lobsters and Dungeness crabs from a London fish merchant, hired three boats from Brighton Marina and cast the animals adrift as part of a religious ceremony, fangsheng, which is understood to be the cause of many ecosystem disruptions in Asia.
This short story is so replete with topical issues it is hard to know where to begin.
In the news this month:
The Brexit Bill
The Bill for the withdrawal from the European Union has been dominating the news over the past few weeks. Mark Elliott comments that it is ‘difficult to overstate the importance’ of the bill from a constitutional standpoint, and the House of Lords Constitution Committee has said in an interim report that its political, legal and constitutional significance are ‘unparalleled’. Concern has been voiced in various quarters over the use of ‘Henry VIII’ powers (so named because of the monarch’s disdain for parliamentary restraint) which will allow the executive to bypass parliament to ‘tweak’ legislation, and a concomitant lack of sufficiently robust sunset clauses or checks and balances to the handover of such powers. For more detail, I highly recommend listening to David Hart QC’s conversation with Rosalind English on our new podcast series Law Pod, in which he details the potential consequences of the bill in general and in terms of environmental law in particular; you can read his comments here or have a listen here. Continue reading
ACCC Findings in ACCC/C/2008/32
Last week’s post concerned the judicial review costs system in environmental cases and its compliance with the prohibitively expensive rule Art.9(4) of the Aarhus Convention.
Now for some more Aarhus developments which happened over the summer, this time involving the Aarhus Convention Compliance Committee (ACCC) having a pop at the narrow EU standing rules applicable to challenges to an act or omission by a EU body, and the EU not liking those findings at all.
On 2 October it is the 17th birthday of the Human Rights Act – it came into force on 2 October 2000.
Rightsnfo is looking for inspiring stories of how people have used the Human Rights Act to publish as part of a birthday feature:
- Please send your stories to firstname.lastname@example.org
- No more than 150 words per story
- Send them by end of Friday 22 September
- Stories welcome from people who have used the Human Rights Act or lawyers who have used it on people’s behalf (please confirm you have your client/ex-client’s authorisation to share the story).
- If you have photos to share then please do so
Looking forward to seeing what people send in!
RSPB, Friends of the Earth & Client Earth v. Secretary of State for Justice  EWHC 2309 (Admin), 15 September 2017, Dove J – judgment here
In my March 2017 post here, I explained that amendments to the costs rules for public law environmental claims threatened to undo much of the certainty that those rules had achieved since 2013. Between 2013 and February 2017, if you, an individual, had an environmental judicial review, then you could pretty much guarantee that your liability to the other side’s costs would be capped at £5,000 (£10,000 for companies) if you lost, and your recovery of your own costs would be limited to £35,000 if you won. In this way, the rules sought to avoid the cost of such claims becoming prohibitively expensive and thus in breach of Art.9(4) of the Aarhus Convention.
The most worrying element in the February 2017 amendments was a new CPR 45.44 giving the courts a broad discretion to vary those amounts, apparently at any time. This seemed like an open invitation to the defendants to try to do this, aided by the financial information which claimants are now obliged to provide. It was truly regressive, taking us back to the days when you spent many thousands of pounds arguing about a protective costs order which was intended to save money.
In my March post, I explained that the new rules were being challenged by NGOs, and Friday’s judgment is the upshot of this challenge.
It is essentially a success for the NGOs.
There are a few places remaining for 1 Crown Office Row’s high-level seminar this Monday 11 September. The event is aimed at solicitors and people associated with NGOs. We also have a limited number of student places which will be allocated on a first come first served basis.
Email email@example.com to reserve your place.
11th September 2017, 5 – 8pm
5 – 5.50pm Panel Discussion chaired by Mrs Justice Whipple.
Speakers will include: Marina Wheeler QC, Jeremy Hyam QC, Shaheen Rahman QC, Martin Downs and Adam Wagner.
6 – 6.40pm Breakout sessions – Law and Practice
(i) Public Powers and Private Lives in the Information Age – Amelia Walker
(ii) Inquests and Article 2 – Rachel Marcus, Caroline Cross, Peter Skelton
(iii) Unlawful detention – Suzanne Lambert, Alasdair Henderson, David Manknell
6.45pm Concluding Session – Questions and Summing Up.
Chaired by Mrs Justice Whipple
7pm Drinks Reception
Hosted by the speakers and 1COR Members.
Clinical Genetics is a field of medicine concerned with the probability of an indvidual’s condition having an hereditary basis. The journal Medical Law International has just published an article about the scope of potential duties of care owed by specialists in this field to people with heritable diseases. The authors draw out the features of genomic medicine that open the door to new liabilities; a potential duty owed by clinicians to third party family members, and another legal relationship that may be drawn between researchers and patients.
There is no legislation on the duties involved in genome sequencing in the United Kingdom, and, in the absence of this, any new legal duties on the part of professionals in clinical genomics need to be established within the common law of negligence. Civil lawyers are familiar with the standard framework for establishing whether a duty of care is owed, based on these three consecutive questions:
- Was the damage was reasonably foreseeable
- Was there was sufficient “proximity” between the claimant and the defendant and
- Would it be fair, just and reasonable to impose a duty: see Lord Bridge of Harwich in Caparo Industries plc v Dickman  2 AC 605, 617-618
These principles are neat enough as they are laid out but only take us as far as the facts of any particular case, particularly the Caparo test outlined in para (3).
This relatively new field of medical endeavour is unusual in that it is concerned with the management of a family rather than one individual. More generally, in the field of genomic medicine, there is a “close interaction between care and research”, resulting in “the real possibility” that genomics researchers will be found to owe a legal duty to disclose findings to participants.
So we have two new possible avenues of liability here; that of clinicians to third parties, and that of researchers to patients. Continue reading