Is Strasbourg law the law of England and Wales?


R (o.t.a Minton Morrill Solicitors) v. The Lord Chancellor [2017] EWHC 612 (Admin)  24 March 2017, Kerr J – read judgment 

This exam-style question arose, in an attempt by solicitors to be paid by the Legal Aid Agency for some work they had done on two applications to Strasbourg. The underlying cases were housing, the first an attempt to stave off possession proceedings, and the second the determination of whether an offer of “bricks and mortar” accommodation to an Irish traveller was one of “suitable accommodation”. Both applications were declared inadmissible by the European Court of Human Rights, and thus could not benefit from that Court’s own legal aid system.

The major question turned on whether the Human Rights Act had “incorporated” the Convention. We all use this as a shorthand, but is it really so?

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Access to environmental justice

On Monday 13 March, I went along to the latest Castle Debate, held in conjunction with the Environmental Law Foundation: see here for more of the same, all free debates, and fascinating topics for anyone interested in environmental law and policy.

It, and Tom Brenan’s talk in particular, reminded me that, despite it being not long after my last Aarhus post (on private law proceedings, here), it was time to set out the latest rules governing judicial reviews, which came into operation on 28 February. The bone of contention, as ever, is the concept that challenging environmental decisions should not be prohibitively expensive.  

Until last month, the rules were relatively simple, and were designed, for better or for worse, to minimise the amounts of arguments about costs in environmental challenges. If you were an individual, £5,000 capped the costs which you would have to pay the other side if you lost.

But Government had become obsessed that environmental challengers were somehow getting a free lunch, and the rules have now been spun into something so complicated that defendants who want to burn off claimants before the claim gets heard have been given a pretty broad licence to do so. For most individuals, committing yourself to paying £5,000 if you lose is a pretty sharp deterrent. But Government does not think so. 

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Canals and Article 8 – again

Jones v. Canal & River Trust [2017] EWCA Civ 135 – 7 March 2017 – read judgment

In recent years, the Courts have come up with a pragmatic resolution to the clash of property and Article 8 rights which typically occur in housing cases. Where the tenant is trying to use Art.8 to fend off a possession order, because he is in breach of some term of the tenancy, then the Courts, here and in Strasbourg, have resolved the issue in the favour of the local authority, save in exceptional circumstances.

But the current case of a canal boat owner raises a rather different balance of rights and interests – which is why the Court of Appeal evidently found the issue a difficult one to decide.

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Thinking about reasons again

_70626907_792ccfc-arielsiteplan2R (o.t.a. Oakley) v. South Cambridgeshire District Council [2017] EWCA Civ 71, 15 February 2017, read judgment

There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.

And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.

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Aarhus Convention update: Government still ignoring private nuisance claims

F_AarhusConventionIn November 2016, the Government responded in rather disappointing terms (here) to a consultation about amending its costs rules in civil cases to reflect the requirements of the Aarhus Convention.

Article 9 of this Convention says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive. Aarhus starters may want to have a look at my bluffers guide to Aarhus – here.

First, the limited bit of good news in the governmental response.

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Free Trade Agreements and the White House – where are we now?

ceta_signing_qtp_848x480_796869187661Trump’s inauguration seems not a bad moment to be having a look at the Free Trade Agreements (FTAs, actual or potential) which are swirling around at the moment, and their likely reception in the changed world which we face.

First on the list, our own tried, tested, and found electorally wanting, EU Treaties. They are FTAs, but with lots of knobs on – free movement of people, of establishment, level playing fields about employment rights, the environment and consumer protection, to name but a few.

The first thing to say is that FTAs, wherever they are, don’t come all that unencumbered these days. Continue reading

Why EU law will not make the trains run on time

pay-southern-rail-train-strikeGovia GTR Railway Ltd v. ASLEF [2016] EWCA Civ 1309, 20 December 2016 – read judgment 

As all domestic readers know, there is a long running industrial dispute between Southern Rail and ASLEF, the train drivers’ union. The issue : DOOP  – Driver Only Operated Passenger – Trains. The company says they are perfectly safe, have been used extensively, and there will be no job losses. It claims over 600,000 journeys are being affected per day. The union strongly disputes that the new system of door closing is as safe as the old for passengers, and says that the new system is very stressful for drivers. 

Under domestic law, there appears to be no doubt that the strike action is lawful. In the time-honoured phrase, it is in furtherance and contemplation of a trade dispute, and the company accepted that a proper and lawful strike ballot was held – with a 75% turnout of members of whom 90% favoured the strike.

But the company argued that strike action was in breach of EU law, and hence it was entitled to an interlocutory injunction preventing the strike pending trial.

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