Media By: David Hart QC


EU draft Withdrawal Agreement: what does it say?

15 November 2018 by

The draft Agreement – here – is a mere 585 pages. No harm in trying to read it, or the bits of it which are of particular interest, because in that respect you may be well ahead of some of the rather noisier politicians.

It may seem a bit premature to say too much about it, not least because of the political turmoils, but it promises that

(1) the EU and UK will “use their best endeavours” to have a future trade agreement concluded six months before the end of the transition period in December 2020; this is extensible on agreement thereafter;

(2) but that if this is not the case the EU and the UK could “jointly extend the transition period” for an unspecified period.

Anyway, first thoughts on some of the detail.

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Climate change human rights claim wins in the Dutch courts

14 October 2018 by

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State of Netherlands v. Urgenda Foundation, The Hague Court of Appeal, 9 October 2018, read judgment here

The Hague Court of Appeal has just upheld a decision by the District Court that the Dutch State had failed to do enough to combat climate change. In response to a claim by an NGO, Urgenda and 886 co-claimants, the Court ordered the State to reduce its emissions by at least 25% by the end of 2020 (benchmarked against 1990 emissions).

The case raises a mass of interesting issues, not least the various unsuccessful attempts by the State to avoid liability.

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Drug wars about macular degeneration

4 October 2018 by

jcm-04-00343-g004-1024Bayer Plc v NHS Darlington Clinical Commissioning Groups (CCG) and others [2018] EWHC 2465 (Admin) – read judgment

This judicial review concerned whether it was lawful for NHS clinical commissioning groups to adopt a policy for offering the drug Avastin to patients suffering from “wet” (or neo-vascular) age-related macular degeneration (AMD).  Avastin, although not licensed for ophthalmic use, at £28 per injection is significantly cheaper than the licensed alternatives (£816 and £551 respectively per injection). The Royal College of Ophthalmologists has estimated that the NHS-wide saving of switching to Avastin was at least £102 million p.a.

Bayer and Novartis (with their drugs licensed for AMD) therefore had considerable financial interests in setting aside this policy. They sought review of the commissioning groups’ policy.  The manufacturer of Avastin (Roche) was an interested party. The drug is widely used in other countries for neo-vascular AMD.  The General Medical Council had issued guidance saying that doctors could prescribe off-label medicines provided they were satisfied that there was sufficient evidence or experience of using the medicine to demonstrate its safety and efficacy.

There were essentially six issues before the court.

Whipple J dismissed the claim for judicial review.

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$8 billion lawsuits started on GDPR day

31 May 2018 by

You would have to be a monk or, at any rate, in an entirely internet-free zone, not to have had your recent days troubled by endless GDPR traffic. The tiniest charity holding your name and email address up to the data behemoths have asked, in different ways, for your consent for them to hold your personal data. You may have observed the frankness and simplicity of the former’s requests and the weaseliness of the latter’s, who try to make it rather difficult for you to say no, indeed to understand what precisely they are asking you to do.

Just in case you have not looked at it, here is the Regulation. It is actually a good deal easier to understand than a lot of the summaries of it.

This lack of transparency in these consent forms/privacy statements had not gone unnoticed by one of Europe’s more indefatigable privacy sleuths. Max Schrems, an Austrian lawyer, who, at 30 years of age, has already been to the EU top court twice (see here and here), moved fast. By the end of GDPR day last Friday, 25 May, he sued global platforms with multibillion-euro complaints. 3 complaints said to be valued at €3.9 billion were filed in the early hours against Facebook and two subsidiaries, WhatsApp, and Instagram, via data regulators in Austria, Belgium and Germany. Another complaint valued at €3.7 billion was lodged with France’s CNIL in the case of Google’s Android operating system.

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A “festival of mendacity”; telling the truth no more than a “lifestyle choice”

25 May 2018 by

Rashid v. Munir et al, Turner J, High Court, Leeds, 22 May 2018 – read judgment here

I promise you that this post will be entirely GDPR-free, despite its date.

Judges go about saying people are lying in different ways, from the tip-toeing around the idea of deceit to the full-blooded blast. This judgment, and that from which it is an appeal, are towards the latter end of the spectrum.

I welcome this frankness; if you, a judge, think that someone is telling you a tissue of lies, then you should say so in terms.

Neither judge held back, as we shall see. Enjoy.

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Supreme Court: unfairness/equal treatment only an aspect of irrationality

16 May 2018 by

R (o.t.a. Gallaher et al) v. Competition and Markets Authority  [2018] UKSC 25, 16 May 2018, read judgment

UK public law is very curious. You could probably write much of its substantive law on a couple of postcards, and yet it continues to raise problems of analysis and application which tax the system’s finest legal brains.

This much is clear from today’s Supreme Court’s decision that notions of public law unfairness and equal treatment are no more than aspects of irrationality.

The CMA (then the OFT) were investigating tobacco price-fixing. Gallaher et al reached an early settlement with the OFT, at a discount of their fines. Another price-fixer, TMR, did likewise, but extracted an assurance from the OFT that, if there were a successful appeal by others against the OFT decision, the OFT would apply the outcome of any appeal to TMR, and accordingly withdraw or vary its decision against TMR.

6 other parties then appealed successfully. TMR asked and got its money back from the OFT relying on the assurance.

Gallaher et al tried to appeal out of time, and were not allowed to. They then turned round to the OFT and said, by reference to TMR: why can’t we have our money back?

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Groundhog Day for air pollution breaches: Government loses again

23 February 2018 by


NO2_PicR (ClientEarth No.3) v Secretary of State for Environment, Food &  Rural Affairs, Garnham J, 21 February 2018, judgment here 

DEFRA has been found wanting again, in its latest attempt to address nitrogen dioxide in air. This is the third time. Yet DEFRA’s own analysis suggests that some 23,500 people die every year because of this pollutant.

I have told the story in many posts before (see list at bottom), but the UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) since 2010. The Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”: Article 23.

We have now had 3 Air Quality Plans, the first produced in 2011 and quashed in 2015, and the second produced later in 2015, declared unlawful by Garnham J in November 2016.

The third, in this judgment, was dragged out of DEFRA in July 2017, after various attempts to delay things.  

So why was it decided to be unlawful?

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Landmark A-G opinion: EU must respect right of self-determination of Western Sahara

14 January 2018 by

wsaharaR (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA, Court of Justice of the European Union, opinion of Advocate-General Wathelet, 10 January 2018 – read here

The A-G has just invited the CJEU to conclude that an EU agreement with Morocco about fishing is invalid on international law grounds. His opinion rolls up deep issues about NGO standing, ability to rely on international law principles, justiciability, and standard of review, into one case. It also touches on deeply political, and foreign political, issues, and he is unapologetic about this.  That, he concludes, is a judge’s job, both at EU and international court level – if the issues are indeed legal.

The opinion is complex and I summarise it in the simplest terms. But here goes.

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Does “damage” go wider than injury? Supreme Court on jurisdiction

23 December 2017 by

Four Seasons Holdings v. Brownlie [2017] UKSC 80, 19 December 2017, read judgment

Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.

The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.

The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.

On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.

But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.

Let me set the scene for this, before telling you the result.


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Reasons and planners again: Supreme Court

20 December 2017 by

13454123443_80fef9d87e_bDover District Council v. CPRE Kent [2017] UKSC 79, 6 December 2016, read judgment

The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover. 

The interest is in the breadth of the decision – how far does it extend?


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Polluter Pays Principle: in Tobago, in the EU/UK, and in UK post-Brexit

1 December 2017 by

Fishermen & Friends of the Sea v. The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37, 27 November 2017 – read judgment

A vignette of where

(1) Trinidad and Tobago is,

(2) the EU/UK is,

(3) where Michael Gove may wish us to be post-Brexit,

on the Polluter Pays Principle (PPP), a key environmental principle.

As we shall see, in legal terms, the expansiveness of (1) and (2) contrasts with the potential parsimony of (3).

Now (3) may be better than nothing, as per the European Union (Withdrawal) Bill, i.e, no enforceable environmental principles at all. But that does not mean we should not aspire for more. After all, as we shall see, the PPP is hardly a racy new entrant into environmental law.

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Can you draw a line between this case and Anisminic?

25 November 2017 by

Privacy International v. Investigatory Powers Tribunal [2017] EWHC EWCA Civ 1868, Court of Appeal, 23 November 2017

Introduction

As all lawyers know, the great case about courts confronting a no-go area for them is the late 1960’s case of Anisminic.

A statutory Commission was given the job of deciding whether compensation should be awarded for property sequestrated, in the particular case as a result of the 1956 Suez crisis. The Act empowering it said that the

determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.

The House of Lords, blasting aside arcane distinctions, said that this provision was not enough to oust judicial review for error of law.

Fast forward 50 years, and another Act which says

determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.

The Court of Appeal has just decided that, unlike Anisminic, this Act does exclude any judicial review.

Why?

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Announcement – new Commissioning Editor

24 November 2017 by

We are delighted to announce that Jonathan Metzer has been appointed the new Commissioning Editor of the UK Human Rights Blog.

Jonathan practises across a range of human rights-related areas, including public law, immigration, inquests and public inquiries. He will develop the work of the existing and previous editorial team in ensuring that the Blog remains one of the go-to resources for any reader interested in the latest developments in human rights law.

We thank the outgoing editors Michael Deacon and Hannah Noyce for their excellent work over the last 12 months.

Air quality breaches stops development which threatened to exacerbate them

13 November 2017 by

Gladman Developments v. SoS for Communities and Local Government, Interested Party:CPRE [2017] EWHC 2768 (Admin) 6 November 2017 – read judgment

 

An interesting example of how our planners must take air pollution concerns far more seriously in the light of the long-running ClientEarth litigation.

The developers wanted to build a total of 470 dwellings and 60 care units in Newington, Kent. Their application went to appeal before a Planning Inspector, and they lost on air quality grounds. They unsuccessfully sought judicial review of his decision.

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Supreme Court: state immunity rules incompatible with Article 6

20 October 2017 by

Benkharbouche & Anor v Foreign & Commonwealth Office  [2017] UKSC 62, 18 October 2017  – read judgment

If you work for an embassy in London and are not a UK national, you cannot sue your employing state when you get unfairly dismissed. But if you enter a commercial contract with the same embassy, you can sue them.

This is the conundrum which faced the Supreme Court, who decided that the former result, although laid down by statute, was incompatible with Article 6 of the ECHR.

The SC’s sole judgment was by Lord Sumption, with whom the other justices agreed. It is a tour de force of international (rather than human rights) law, because therein lay the key issue.

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Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

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