By: David Hart KC
11 April 2013 by David Hart KC
Stevens v. Secretary of State for Communities & Local Government, Hickinbottom J, 10 April 2013 read judgment
As the judge explicitly recognised, this case raised the clash of two principles – how to resolve the policy-driven field of planning with the rights of family under Article 8 ECHR and of the child under Article 3 of the UN Convention on the Rights of the Child (UNCRC).
The battlefield was the well-trodden one of a Gypsy family living in caravans within the Green Belt, but without existing planning permission for those caravans. Ms Stevens sought to regularise this by applying for retrospective permission. The Council turned her down, and her appeal to a planning inspector was dismissed. She then made a statutory challenge to that decision under section 288 of the Town & Country Planning Act 1990, seeking to quash it and have it re-determined.
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8 April 2013 by David Hart KC
Last Friday, 5 April, saw a break-through in negotiations as to how the EU is to accede to the ECHR – see the Draft Agreement on Accession of the European Union to the European Convention on Human Rights. There has been a lot of speculation (e.g. my post of June 2012) about how the roles of the EU Court (the CJEU) and the Strasbourg Court might be fitted together. Now at least we have some of the proposed answers, though there are a number of formal steps to be undergone before it comes into law.
The move is a culmination of a process trailed as long ago as the 1970s, though kick-started more recently by Article 6 of the Lisbon Treaty of European Union. This entered into force in 2009, and says that the EU “shall” accede to the ECHR. Negotiations started in earnest in 2009/10, initially with negotiators from 14 Convention countries (7 in the EU, 7 ECHR but non-EU members) who met with members of the European Commission, and latterly involving all 47 Council of Europe countries. Those negotiators have now reached agreement.
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6 April 2013 by David Hart KC
Julius Kloiber Schlachthof GMBH and others v. Austria, ECtHR, 4 April 2013, read judgment
These ECtHR decisions are the latest in a number of claims by slaughterhouses that their rights were infringed by the exaction of a surcharge by the Austrian national agricultural board. The Court decided that (a) the process of surcharging by administrative bodies engaged the criminal part of Article 6 and (b) the Austrian courts hearing appeals against the surcharges did not have the jurisdiction to carry out a “full review” of the decision to surcharge; only that way could one turn the combination of administrative decision and court decision into a decision by a “tribunal” complying with Article 6.
Now to unpack these complex but important ECtHR rules, and to look at how they play out domestically.
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31 March 2013 by David Hart KC
J1 v Secretary of State for the Home Department, 27 March 2013 – read judgment
A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post
Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.
The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).
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20 March 2013 by David Hart KC
Hayes v. Willoughby, Supreme Court, 20 March 2013 – read judgment
Harassment is both a civil wrong and a crime. It is a statutory defence to both that the conduct “was pursued for the purpose of preventing or detecting crime” s.1(3) Protection of Harassment Act 1997. This decision grappled with the problem of the apparently honest but irrational harasser. Was he guilty or did this defence help him? In answering this, the Supreme Court looked at some basic concepts running through great swathes of the law, “purpose”, “subjective”, “objective”, “reasonableness” and, critically, “rationality” – so the case is one not simply for harassment lawyers to look at.
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18 March 2013 by David Hart KC
Swift v. Secretary of State for Justice, Court of Appeal, 18 February 2013 – read judgment – on appeal from Eady J, read judgment and my previous post
Ms Swift lost her live-in partner in an accident at work caused by negligence. She was pregnant with her partner’s child, but had only been living with him for 6 months. Had she been with him for 2 years, she could have claimed damages for his death under section 1(3) of the Fatal Accidents Act – set out at [1] of the CA judgment. She would then have been a “dependant” as defined under the FAA. So she argued that her rights under Articles 8 (family) and 14 (discrimination) of the ECHR were not properly respected by the law governing damages for the death of a relative – there was no justification for this stark cut-off – 1 year 11 months no claim, 2 years a claim. The judge refused to grant a declaration of incompatibility between the ECHR and the Fatal Accidents Act, and the Court of Appeal has just upheld his decision.
A lot of money turned on the point: Had she qualified as a dependant, she would have had a claim for about £400,000.
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15 March 2013 by David Hart KC
R (o.t.a Buckingham County Council and others) v. Secretary of State for Transport, 15 March 2012, Ouseley J – read judgment – Updated
In a 259-page judgment, Ouseley J has today rejected all but one of the challenges brought to the Government’s plans for HS2. This is the proposed high speed rail link to Birmingham, and potentially beyond. The host of challengers (including local authorities, local residents and action groups (under the umbrella of HS2AA), and – wait for it – Aylesbury Golf Club) brought a host of challenges – 10 in all, of which 9 were unsuccessful. I shall do my best to summarise those of wider interest.
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15 March 2013 by David Hart KC
Leth v. Austria, CJEU, 14 March 2013 read judgment
You live very close to an airport. The airport expands without carrying out an Environmental Impact Assessment as required by the EIA Directive. You want to sue the state for loss in value of your property. Can you claim? This is the strikingly simple question the subject of this judgment of the Court of Justice of the EU. And on the day the HS2 ruling came out (post to follow shortly, but compensation consultation unlawful) it is an interesting question to look at.
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4 March 2013 by David Hart KC
Evans, R (o.t.a of) Secretary of State for Communities and Local Government [2013] EWCA Civ 114 – read judgment
There have been important pronouncements over the years by the Aarhus Compliance Committee (ACC) about whether the UK planning system complies with the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). See my post here for the most important ones, and more are likely to follow shortly (see here). The interest in this domestic planning case is in how the Court of Appeal dealt with those pronouncements, where there is domestic case law going the other way.
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18 February 2013 by David Hart KC
It may be a little early to predict the lasting impact of the horsemeat to-do on the law. But one might make a lunge at the following : (i) contractual claims by supermarkets professing outrage, cascading further and further through supplier and sub-supplier until they end up with some far-flung abattoir in Romania, (ii) the odd trading standards prosecution, (iii) a chancy group action by those who say they were horrified at the thought that they might have let horse pass their lips; and (iv) the Horsemeat (It Will Never Happen Again) Regulations 2013 SI 9999/2013 (no link yet available). It is perhaps as well to rein in too much speculation at that point.
But it is timely to say something about when and how much horse our linguistic ancestors ate. By a curious coincidence, I am at the moment reading a book which tells us all about that and lots of other things.
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13 February 2013 by David Hart KC
Ofgem (Gas & Electricity Markets Authority) v. Infinis) [2013] EWCA Civ 70, Court of Appeal 13 Feburary 2013 read judgment, on appeal from decision of Lindblom J Read judgment and my previous post
This decision upholding an award of damages for a claim under Article 1 Protocol 1 (right to possessions) may seem rather straightforward to a non-lawyer. Infinis lost out on some subsidies because the regulator misunderstood a complex legal document. It could not claim those subsidies any more, so it claimed and got damages from the regulator. But the relatively novel thing is that English law does not generally allow claims for damage caused by unlawful action by the state. And yet the Court of Appeal found it easy to dismiss the regulator’s appeal on this point.
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10 February 2013 by David Hart KC
The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice, G4S and Serco plc, 6 February 2013 – read judgment
The Court of Appeal dismissed this claim by a children’s NGO for an order that the Secretary of State provide information to certain children to the effect that the SoS and his contractors had unlawfully used bodily restraint upon them whilst they were “trainees” in Secure Training Centres. The facts and Foskett J’s judgment under appeal was fully analysed by Rosalind English in her post, so I shall concentrate on the two points of wider interest:
1. is there a duty on the state to tell someone of their legal rights against the state?
2. should domestic human rights case law ever go wider than its Strasbourg equivalent?
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7 February 2013 by David Hart KC
Bank Saderat Iran v Council of the European Union, EU General Court, 5 February 2013 read judgement
Last week I posted on the Bank Mellat case where an Iranian Bank succeeded in persuading the General Court to unfreeze its assets from orders made by EU institutions. The Bank Saderat case is virtually identical, and annulment was duly granted by the General Court. But it is troubling that the EU Council should go so wrong in wielding its draconian powers more than once. It does rather support the suspicions of the Bank (common to this and the Bank Mellat case) that pressure was brought to bear on the Council ultimately emanating from the US – hence the Wikileaks cables again – such that the EU did not robustly analyse the assertions made to them before making the orders. Basic errors were made again, and, as will emerge, the EU had no evidence for much of what it said.
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30 January 2013 by David Hart KC
Bank Mellat v Council of the European Union (supported by EU Commission), EU General Court, 29 January 2013 read judgment
In October 2009, Bank Mellat, an Iranian bank, was effectively excluded from the UK financial market by an Order made by the Treasury, on the basis that it had or might provide banking services to those involved in Iran’s nuclear effort. The Bank challenged the Order, and the challenge failed in the Court of Appeal, albeit with a dissent from Elias LJ: see Rosalind English’s post and read judgment. The Bank’s appeal to the Supreme Court is due to be heard in March 2013; it raises some fascinating issues about common law unfairness, Article 6, and the right to property under A1P1 , given that the Bank was not told of the intention to make the Order prior to its making.
The current case concerns an EU set of measures initiated in 2010, which led to the freezing the Bank’s assets on essentially the same grounds, namely involvement with the Iranian nuclear effort. And the EU General Court (i.e. the first instance court) has just annulled the measures – for lack of reasons, lack of respect for the rights of the defence, and for manifest error. So keep an eye on these two parallel cases, in the Supreme Court and in the EU Court of Justice on appeal from this decision.
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23 January 2013 by David Hart KC
Piper v. Hales, HHJ Simon Brown QC, 18 January 2013 read judgment
Two types of readers may be interested in this case; the first, who are interested in the age-old judging problem of whom to believe when faced with a conflict of evidence, and the second (and I don’t want to do any gender-stereotyping) those who are fascinated in whether a replica Porsche 917 (think Steve McQueen in Le Mans) over-revved and blew because (a) it had a gearbox fault or (b) the Defendant driver missed a gear.
I will disappoint the second set of readers – but the judgment is short and well-written, so, chaps, read it for yourselves to find out why the gearbox was acquitted of all charges laid against it.
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Stevens v. Secretary of State for Communities & Local Government, Hickinbottom J, 10 April 2013 read judgment
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