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Most UK people’s 2020 Christmas eves were cheered by the news that we had some sort of Brexit deal – here, in all its majesty. Given the deadline for no deal, some deal, however thin, was a good deal better than nothing, with the ill-tempered chaos between the UK and a major trading partner which would have followed from the latter.
News in the last few weeks has concentrated on some of the immediate supply chain issues (notably fishing) which affect businesses, and whether those issues are long-term and intrinsic in any non-single-market Brexit (my view), or can be ironed out in time (as Leavers say).
But there are other long term issues such as environmental protection which are potentially affected by the deal. These have not really picked up in the media. One exception is the very helpful briefing by Greener UK (a group of the major UK environmental NGOs) – here.
The prism for any analysis of the deal is that it is a Trade and Cooperation deal, and the environmental commitments, such as they are, are tied into trade implications – to retain a level playing field for that trade.
The other thing to remember is that it is a public international law agreement, full of the terminology of such agreements, well trodden by the EU in terms of external agreements, and more generally. Put the other way, don’t read it like an EU directive, let alone a UK statute.
To a seasoned follower of environmental policy in Europe, its terms are like winding the clock back 40-odd years. The initial environmental directives (notably on water and waste in the mid-1970s) had no express Treaty hook on which to be hung. The hook only arrived with effect from the end of 1992, when the Treaty was amended. So environmental policy measures in those early days were couched essentially in trade terms.
So what does the deal (a.k.a the Trade and Cooperation Agreement or TCA) tell us? Here are my first thoughts.
R (Finch) v. Surrey County Council et al [2020] EWHC 3559 (QB) – read judgment
Environmental Impact Assessment or EIA is the process by which a developer and a planning authority look at whether a particular project is likely to have significant direct or indirect effects on the environment. And an EIA must address a factors such as human health, biodiversity, land, water and climate as well as cultural heritage and landscape.
But how far does the enquiry have to go? This is the very stark question raised by this planning case.
The developer wanted to drill oil from the Horse Hill site in Surrey (see pic) for a production period of 20 years. The crude oil thus won would be tankered offsite for refining by others. The refined product would probably be used for transportation, but also for heat, manufacturing and in the petrochemical industry.
The issue was whether the local authority could stop its EIA lines of enquiry when it had considered the setting up works and the oil production processes, or whether it had to assess the wider climate change implications of long-term use of the oil so produced.
The judge, Holgate J was firmly of the view that the assessment process was limited to the first. Surrey’s EIA process was thus sufficient.
R (o.t.a Friends of the Earth et al) v. Heathrow Airport Ltd [2020] UKSC 52 – read judgment
In February 2020, the Court of Appeal decided that the Government policy on airport expansion at Heathrow was unlawful on climate change grounds. The Supreme Court has now reversed this decision.
The policy decision under challenge was an Airports National Policy Statement (ANPS). An NPS sets the fundamental framework within which further planning decisions will be taken. So, in traditional terms, it is not a planning permission; that would come later, via, in this case, the mechanism of a Development Consent Order (DCO), which examines the precise scheme that is proposed. The ANPS (like any NPS) narrows the debate at the DCO stage. Objectors cannot say, for example, that the increase in capacity could better be achieved at Gatwick. Government policy has already decided it shouldn’t be.
The ANPS was made in 2018 by the Secretary of State for Transport (Chris Grayling), after many years of commissions and debates about airport expansion.
The other major policy player in this litigation was the Paris Agreement on Climate Change. This was concluded in December 2015, and was ratified by the UK on 17 November 2016. The Paris Agreement commits parties to restrict temperature rise to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.
The UK’s domestic climate change legislation derives from the Climate Change Act 2008. The Planning Act 2008 (setting out the NPS system) required government in a given NPS (a) to explain how it takes account of its policy on climate change (s.5(8)) and (b) to exercise its NPS functions with regard to the desirability of mitigating and adapting to climate change (s.10).
The challenges debated in the Supreme Court revolved around (1) these two sections of the PA 2008, (2) a debate about the impact of the Strategic Environmental Assessment Directive (2011/92/EU), and (3) claims that the SoS has failed to take into account long-term (post-2050) and non-CO2 emissions.
One curious element of this appeal is that it was Hamlet without the Prince. After seeking to defend the case in the CA, the SoS did not appear in the SC, where Heathrow did all the running. Whether this non-appearance by the SoS was anything to do with the Honourable Member for Hillingdon’s undertaking (Boris Johnson MP) some years ago to lie in front of the bulldozers before the third runway was laid is of course unknowable. But as we shall see, this did not stop Heathrow’s arguments winning the day. So, possibly, central government’s policy objective achieved without political risk.
At first sight, a rather abstruse dispute, but the 63 page judgment of Henshaw J gives rise to a host of important and difficult human rights points. But his central conclusion is that a statute which was not challengeable at the time of its enactment became so, because of the subsequent evolution of the law, principally common law, to the detriment of insurers.
Sounds mildly counter-intuitive? Not, I think, so, when the story has unfolded.
For a while, 6 Portuguese citizens, between the ages of 8 and 21, have been on the brink of starting proceedings in the European Court of Human Rights. Now it has happened. On 3 September 2020, they sent their claim to the ECtHR. They have been helped in its preparation by the Global Legal Network, which has helpfully put up here a summary as well as the salient parts of the documents sent to the Court.
The claim is against 33 Council of Europe countries (all the EU 27, plus the UK, Switzerland, Norway, Russia, Turkey and Ukraine) for failing to take sufficient steps to address climate change. The failures alleged include permitting emissions domestically, permitting the export of fossil fuels extracted from their territories, permitting the import of goods containing embedded carbon, and allowing entities domiciled in those countries to contribute to emissions abroad (via fossil fuel extraction elsewhere or its financing).
On 30 March 2018, whilst working on the demolition of an oil tanker on the beach at Chittagong, Bangladesh, Mr Mollah fell to his death.
There is powerful evidence that essentially manual ship breaking of this sort is extremely unsafe and carries environmental risk given the asbestos and heavy metals aboard: see e.g. the work of NGO Shipbreaking Platform here. It does not take much more than a glance at the photographs to appreciate the problem. Conditions were grim; Mr Mollah was working at least 70 hours a week for long pay. Some 200,000 workers are thought to work under these conditions.
But this litigation is happening in the UK Courts. Mr Mollah’s widow did not even know the name of her Bangladeshi employer and she did not sue the owner of the “yard” there – in practice, the beach.
This is, to say the least, a rather unfortunate saga. The Claimant, Mr Serafin, brought a defamation claim against a Polish newspaper run by the Defendants. An article had alleged various things including that he was financially untrustworthy and was dishonest in his dealings with women. At trial before Jay J, he represented himself. He was comprehensively disbelieved by the judge. His claim was dismissed, in most cases because the judge found that the article was accurate, but in some instances because the defendants had a public interest defence under s. 4 Defamation Act 2013.
The Supreme Court, via a single judgment from Lord Wilson, thought that the judge’s judgment was “remarkable”, “intricately constructed and beautifully written”. So what, if anything, had gone wrong, and why did the SC order a retrial?
R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government [2020] UKSC 16- read judgment
As I said in my post on the 1st instance decision, many people like to have a say over the investment policies of their pension funds. They may not want investment in fossil fuels, companies with questionable working practices, arms manufacturers, Israel or indeed any company which supports Israel’s occupation of the West Bank and Gaza Strip – to choose but a few of people’s current choices. And pension funds, left to their own devices, may wish to adopt one or more of these choices to reflect their pensioners’ views. But can they under current local authority pensions law?
This case is about Government “Guidance” aimed at local authorities, banning some of those “ethical” objections to investment policies but allowing other objections. “Guidance” in quotes because the net effect of the Act and secondary legislation was to make the Guidance mandatory: see [10] of Lord Wilson’s judgment. In particular, the policy ban was to apply to (a) boycotts to foreign nations and (b) UK defence industries. The sharp focus of the former was Israel. No surprises that the Quakers and the Campaign against the Arms Trade should appear in support of the challenge to the latter.
The Guidance is applicable to local government pensions affecting 5 million current or former employees. So it arose on that ceaseless battleground of government’s direction/intermeddling in local government affairs: was it or was it not authorised by the underlying legislation?
The Guidance said that those running local authority pensions must not use their policies to
pursue boycotts, divestment and sanctions…against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government;
or
“pursue policies that are contrary to UK foreign policy or UK defence policy”.
Did these prohibitions go beyond the SoS’s powers under the relevant pension provisions?
Answer, according to the Supreme Court, yes, but by a majority of 3-2.
Ofcom make some unlawful regulations in 2015, under which telecom companies have to pay higher fees. The regulations were quashed in 2017. Four telecom companies want restitutionary damages, being the difference between the sums paid under the 2015 regulations and the sums they would have paid under their predecessors, the 2011 regulations.
Big money washing around: the claim was for over £200m.
Ofcom says – no, you are only entitled to the difference between the 2015 payments and the hypothetical fees which we could lawfully have charged had we done our job properly in 2017.
Sounds quite simple, but the answer goes deep into the intersection between public and private law.
The claim, as I have said, was restitutionary.
Ofcom said that the law of restitution is rooted in the private law of obligations. The private law approach (as with any tort claim) is to apply a “but for” test – what would the telecoms have paid but for the unlawfulness? This involves the counterfactual: what lawful fees could Ofcom have imposed?
The telecoms, and the Court of Appeal, disagreed. Ofcom’s argument offended the principles of legality, and parity (the principle that those who pay voluntarily should not be worse off compared to those who refuse to pay and litigate).
Airport expansion has taken a long and winding road, not least at Heathrow. But the proponents of the 3rd runway at Heathrow would have been heartened by the Secretary of State’s decision in June 2018 to set out a policy which preferred Heathrow over Gatwick and which was designed to steer planning processes thereafter in support of the new runway.
It is this decision which has just been declared unlawful by the Court of Appeal.
I am afraid this is where the planning jargon starts and the acronyms proliferate. The challenged decision was an Airports National Policy Statement (ANPS). Under planning legislation, an ANPS “sets the fundamental framework within which further decisions will be taken,” as the CA put it in [275]. Those further decisions include the grant of permission for the particular project, done through the Development Consent Order (DCO) process. But you cannot challenge that fundamental framework later in the DCO process; you cannot say later, for instance, that expansion is not necessary at all, or there is a better alternative, say, Gatwick, if the ANPS has decided otherwise.
…..the graphic opening words of today’s decision by the Supreme Court in a defamation case. The next words are equally clear and arresting: ” What would those words convey to the “ordinary reasonable reader” of a Facebook Post?”
The context was a recently ended unhappy marriage between Mr Stocker (the Claimant) and Mrs Stocker (the Defendant), and a series of posts arising out of a Status Update by a Mrs Bligh (Mr Stocker’s new partner) in December 2015. Mrs Stocker and Mrs Bligh commented on each other’s posts for the next 2 hours 18 minutes. Mrs Stocker did not mince her words: “I hear you have been together 2 years? If so u might like to ask him who he was in bed with the last time he was arrested.”
This was quickly followed by “wouldn’t bring it up last time I accused him of cheating he spent a night in the cells, tried to strangle me..”. This was a reference to an incident which had happened some 12 years before.
Mr S did not take kindly to this attempt “to blacken [him] in the eyes of his current girlfriend and belittle her”: as the Court of Appeal put it.
He sued. He won before the judge, and before the Court of Appeal.
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.
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.
Bayer 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.
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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Bayer Plc v NHS Darlington Clinical Commissioning Groups (CCG) and others [2018] EWHC 2465 (Admin) – 
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