The Weekly Round Up: UK climate policy challenged in ECtHR, US threatens suspension of habeas corpus, Privy Council holds Cayman Islands Immigration System not incompatible with Bill of Rights
14 May 2025
In UK News
Environmental campaign group Friends of the Earth, a disability rights activist, and a victim of coastal erosion are challenging the UK government’s climate adaptation programme (‘NAP3’) in the European Court of Human Rights. Published under section 58 of the Climate Change Act 2008, NAP3 outlines the government’s objectives and policies for adapting to climate change. The claimants argue that its failings—particularly with regards to vulnerable individuals—violate their rights under the Human Rights Act 1998 and the European Convention on Human Rights (ECHR). Norfolk resident Kevin Jordan’s coastal home was demolished following damage caused by Storm Ciaran and rising sea levels, and had to be housed elsewhere by the local authority. Doug Paulley, a wheelchair user whose long-term health conditions are severely worsened by extreme heat, was concerned about NAP3’s lack of planning and funding across health and social sectors to alleviate the impact of heatwaves.
Their application for judicial review was dismissed by the High Court in October last year and they have since been refused permission to appeal. Chamberlain J rejected arguments that the policy was insufficiently specific or ambitious, holding that s.58 merely required NAP3 to ‘address’ identified climate risks not to eliminate or minimise them. The court was not obliged under s.3 of the Human Rights Act to construe the statute in a way that better promoted the interests protected by the ECHR, over an interpretation that promoted those interests less effectively. Applying Verein KlimaSeniorinnen Schweiz v Switzerland, the court found the UK’s approach fell within its margin of appreciation. For similar reasons, the judge rejected the substantive claims that the inadequacies of NAP3 were sufficient to breach their human rights to life (Article 2), private life (Article 8) and peaceful enjoyment of possessions (A1P1), nor were they discriminated against on account of their vulnerable situations (Article 14). Chamberlain J considered the Secretary of State had breached the Public Sector Equality Duty in failing to assess the impacts of NAP3 on disabled and elderly people, but declined to quash the decision on this basis. A retrospective assessment in response to the legal challenge was sufficient to discharge the obligation, because the conclusion was that the programme should remain unchanged. It remains for the European Court of Human Rights to determine whether the UK courts’ stance complies with the Convention’s principles.
In International News
The Trump administration has signalled potential plans to suspend the constitutional right of habeas corpus as part of its intensified efforts to circumvent legal challenges to deportations. This is a principle enshrined in the U.S Constitution, in the legal systems of the UK and other democracies around the world, and it protects the right for detainees to contest their detention in court. It has been suspended only four times in American history, the most recent occasion being the Japanese bombing of Pearl Harbour in 1941. White House Deputy Chief of Staff Stephen Miller, one of the key architects behind Trump’s immigration policies, told reporters last Friday that the constitution is clear that ‘the privilege of the writ of habeas corpus could be suspended in time of invasion’. Seeking to deport alleged members of Venezuelan gang Tren de Aragua under the 18th Century Alien Enemies Act, the US administration has argued in court that the gang’s activities constitute such an ‘invasion’. Multiple federal judges have blocked the government’s attempted deportations relying on the act, including Trump appointee Fernando Rodriguez Jr who issued a permanent injunction against such removals in the Southern district of Texas. Karen Henderson (Reagan and G.W. Bush appointee) agreed with Judge Patricia Millett (an Obama appointee) in rejecting the administration’s interpretation of the Constitution that unwanted migration could constitute an invasion: ‘Quoting a dictionary over two-hundred years post-enactment, the government claims that the term “invasion” as used in the AEA encompasses “the arrival somewhere of people or things who are not wanted there.” The text and its original meaning say otherwise….The theme that rings true is that an invasion is a military affair, not one of migration.’ It is in this context that Miller commented the potential suspension of habeas corpus ‘depends on whether the courts do the right thing or not’. Such an act would arguably represent the latest threat to the rule of law in America, and an erosion of civil liberties.
In the courts
In a recent judgment concerning the Cayman Islands’ immigration points system, the Privy Council has clarified when a declaration of incompatibility can be made. Lord Leggatt’s explained in his judgement that such a finding cannot be purely hypothetical, but must arise on the facts of a particular case. The Cayman Islands Court of Appeal had declared the statutory provisions containing the points system, which determines permanent resident applications, incompatible with section 9 of the Bill of Rights (equivalent to Article 8 of ECHR, protecting the right to respect for private and family life). Under s.37(3) of the Immigration Act, permanent residence would only be granted to applicants scoring at least 110 points, which were awarded for criteria relating to personal and occupational factors and potential value to the community. The Court of Appeal had held that, while the rights to respect for family and private life for the particular respondents in that case had not been disproportionately interfered with, the points system was not capable of operating proportionately in every single case. This was due to the apparent absence of any provision allowing for section 9 considerations outside the points based system. On appeal brought by the Cayman Islands Attorney General, the Privy Council held that this approach was incorrect even on its own terms, because there was a provision that allowed the Cabinet to grant exemptions for any purpose in an appropriate case. Further, there was no requirement that the system operate compatibly in every single case.
