By: David Hart KC
10 January 2013 by David Hart KC
One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.
The US Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.
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31 December 2012 by David Hart KC
El-Masri v. The Former Yugoslav Republic Of Macedonia, Grand Chamber of ECtHR, 13 December 2012, read judgment
In a hard-hitting judgment, the 17 judges of the Grand Chamber found Macedonia (FYROM) responsible for the extraordinary rendition of Mr El-Masri, a German national, by the CIA to Afghanistan. We have all seen the films and read about this process – but even so the account given by the Court is breath-taking. And in so doing, most of the members of the Court made explicit reference to the importance of a right to the truth – not simply for El-Masri, the applicant, but for other victims, and members of the public generally. And the story is all the more chilling because the whole episode appears to have been caused by mistaken identity.
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22 December 2012 by David Hart KC
Chagos Islanders v. United Kingdom, ECtHR 4th Section, 11 December 2012 read admissibility decision
The set of injustices which led to these claims is well known – and see my posts here and here. For the uninitiated, in the 1960s, the US wanted Diego Garcia (one of the Chagos Islands) as a major air base. It spoke nicely to the UK, its owners, who consequently evicted and banned all the inhabitants from it and the neighbouring islands. The constitutional arrangements were apparently decorous. A new UK colony was established (the British Indian Ocean Territory or BIOT) with a Commissioner to make laws for the peace, order and good government of the Territory.
The UN was told that the population consisted of migrant workers, their position had been fully protected, and they had been consulted in the process – none of this in fact happened. Those evicted mainly went to Mauritius and the Seychelles. So the peace, order and good government in fact forthcoming from the UK amounted to total depopulation for military objectives.
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8 December 2012 by David Hart KC
Global Alliance Against Industrial Aquaculture v. Scottish Ministers, 26 November 2012 read decision
An interesting and robust decision from the Scottish Information Commissioner. An NGO (just look at the tin) asked the Scottish Ministers for information about seal culling licensed by them. The Scottish Ministers did not provide all the information sought; they said which companies had received the licences, and the total number of seals killed, but did not say who killed how many seals where – thus, doubtless, stymieing any focussed debate and engagement by the NGO on the justification for the killings. The industry’s position appears to be that such shootings only took place against occasional rogue seals.
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27 November 2012 by David Hart KC
Sweetman v. An Bord Pleanala, CJEU, Advocate-General Sharpston, 22 November 2012 read opinion
In May 2012 the Habitats Directive celebrated its 20th birthday. It has been under a good deal of flak over the years, particularly from business interests both in and out of government. The reason is plain. The Directive has made member states identify important sites in their territories to the EU (with a certain amount of prodding on the way). It then tells them to keep those sites unaffected by development save in exceptional cases, where there is overriding public interest in the project, there is no alternative solution and, further, that there can be full compensation for the losses caused by the development.
So a member state cannot routinely fudge things against protected habitats in favour of whatever other public interest may be uppermost at the time – wind farms, or supermarkets or chemical works or residential newbuild on greenbelt, for instance. In all but exceptional cases (see here for my post on a proposal which was said to be exceptional), you must not adversely affect the site.
Now for this powerful system of protection in practice, thanks to a tour d’horizon (and de force) by the Advocate-General.
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21 November 2012 by David Hart KC
R (Bancoult) v. Foreign & Commonwealth Office, Divisional Court, 21 November 2012 read judgment
I posted recently (here) on two decisions concerning Chagossian refugees in their long-running campaign to be re-settled in the islands from which they were evicted by the UK in the 1960s. The first was a claim for further documentation, the second an application for cross-examination of key Foreign Office witnesses on the basis of a Wikileaks document (read judgment and read judgment).
And here is another skirmish in the same battle.
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18 November 2012 by David Hart KC
R v. Waya [2012] UKSC 51, 14 November 2012, read judgment
Traditionally, the qualified right to peaceful possession of property conferred by Article 1 of the 1st Protocol (A1P1) has been thought of as a rather feeble entitlement, easily outweighed by public interests. After all, every day of the week, the modern state affects that right – think taxes or planning restrictions, or business bans arising out of public health concerns (e.g. see here), where removal and confiscation or restriction on what we do with property is readily accepted. Last week the Supreme Court ruled that the Proceeds of Crime Act 2002 (POCA) needs a bit of remedial HR surgery as and when its blunderbuss rules would otherwise have a disproportionate effect on those affected. But the importance of the ruling extends far beyond the specific statutory context.
The story is a familiar one. Parliament, quite rightly, decided that we needed a way of taking the benefits of crime away from criminals on conviction – over and above the system of fines. But it also realised that without some set rules this will prove difficult, if not impossible, to administrate. If the exercise were to be to ascertain the net benefit of the crime, then we get into frightful tangles. Can a defendant set off against his profit of crime his expenses – the cash to the getaway driver, the bung to the dodgy public official, or the contract killing payment? The answer in the statute, and in this decision, is – No. This would be offensive and impractical. So far, so good.
But how far may the answer to the question – what did D really gain from this crime – diverge from the answer given by the statute? This was the conundrum facing the Supreme Court. And it found it very difficult. It had an initial hearing in 2011 in front of 7 judges – but then requested a re-hearing in front of 9. And those 9 split 7-2 in the result, thought the critical reasoning was common to all 9 judges.
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25 October 2012 by David Hart KC
R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion
In my post of yesterday, about this opinion of the Adocate-General, I set out the context in which the Supreme Court was asking for guidance from the CJEU on how to provide for costs in environmental cases, given that the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”
As I put it, the first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Roman Abramovich. Any costs liability may deter someone on state benefits.
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24 October 2012 by David Hart KC
R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated
In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention.
My further thoughts on this case are found here.
The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.
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19 October 2012 by David Hart KC
Walton v. The Scottish Ministers, Supreme Court, 17 October 2012 read judgment
The outcome of this challenge to a road scheme near Aberdeen turned on abstruse points about environmental assessment – but the speeches from the Justices go right to the heart of two big questions in public law.
1. When can someone challenge an unlawful act – when do they have “standing” to do so?
2. If an unlawfulness is established, when can the courts exercise their discretion not to quash the unlawful act, particularly where the unlawfulness arises under EU law?
In the course of the standing issue Lord Hope talks about ospreys – hence my title, but a bit more context first. And we shall also see the views of the Court that standing and discretion are linked questions.
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14 October 2012 by David Hart KC
Why do judges disagree and publish their disagreements when cases get decided? After all, the Cabinet does not do so (openly at least), and our FTSE-100 companies do not generally do so, when their executives propose a merger or launch a new product. Surely, judicial dissent is a recipe for diminishing the authority of the majority answer, and an invitation to self-indulgence on the part of the minority to re-fight lost and irrelevant battles.
Lord Kerr has given a very persuasive answer to both concerns in the Birkenhead lecture on 8 October 2012. But it is worth thinking about the alternative way of doing things, before making up your mind on whether the current way is the best way.
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6 October 2012 by David Hart KC
Stannard (t/a Wyvern Tyres) v. Gore, Court of Appeal, 4 October 2012 read judgment
The best part of a thousand years of law has been distilled into this scholarly resolution by the CA of an age old problem. Who pays for the consequences of an accidentally caused fire – the landowner where the fire started or the neighbour who suffered the loss?
The case is a good illustration of the dangers of the incremental development of our judge-made common law – under scrutiny from time to time from Strasbourg for its lack of precision or unjustness in its wilder reaches, but which has generally passed muster from the European Court of Human Rights: see here or the famous Sunday Times thalidomide case on the then common law of contempt.
Much of the law of civil wrongs (lawyers call it tort) is decided by judges on a case by case basis. When this has gone for too long, the law gets all thickety, dominated by a lot of one-off decisions driven by their specific facts, and where the judge don’t necessarily have their eyes on the wider picture. And these decisions can get way out of date anyway. It is a bit like a student fridge – people rarely clean it out and start again. Changing the metaphor, the law is then in need of a bit of slash-and-burn, and the Law of Fire got that pretty effectively from the CA last week.
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28 September 2012 by David Hart KC
R (o.t.a Badger Trust) v. Defra, Ouseley J, 12 July 2012, read judgment, and on appeal, CA, 11 September 2012, not yet available online.
It is impossible to drive through the narrow and high-hedged lanes of Herefordshire without coming across the sad and inevitable outcome of car meeting badger. One estimate is that we may lose as many as 50,000 badgers a year this way. But this case is about whether we should kill a lot more badgers – deliberately.
For many years there has been a debate about whether, and if so, to what extent, badgers cause the spread of tuberculosis in cattle, and, if it does, what should we do about it. Recently, a decision was made by the Department for Environment, Food and Rural Affairs to cull some of them. And this challenge is to the lawfulness of that decision.
At which point we immediately run up against a bit of an institutional accident. Defra, is, when you scratch it, the old Ministry of Agriculture, Fisheries and Food spliced together with bits of the old Department of Environment. And, a bit like the sad nocturnal collision of badger and vehicle, badgers tend to come off worse when farming interests encounter nature, particularly where, as in this context, the science appears equivocal. That sounds rather contentious, but is not meant to. Let me explain why.
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25 September 2012 by David Hart KC
Earlier today, 25 September 2012, (judgment here, in French) the Cour de Cassation in Paris ruled on the long-running question of whether Total is criminally and civily liable for the loss of the Erika on 12 December 1999 and the consequent spillage of some 20,000 tonnes of heavy fuel oil, affecting some 400 km of the French coastline.
The case has see-sawed so far. The Criminal Court of First Instance, and the Court of Appeal in Paris had said that Total and others were responsible, though the Court of Appeal did not make this finding in respect of the civil claims. Next, the prosecutor, Advocate-General Boccon-Gibod, expressed his view to the Cour de Cassstion that Total was not liable at all. But his view was not shared by 80 parties who appeared before the court, including the affected communes Now, the court has finally ruled in favour of those polluted, both under the criminal and civil laws, as against Total and other responsible parties – all these issues have been decided in the same decision, in a way which may seem a bit odd to UK lawyers who generally put criminal and civil law in different boxes.
The judgment is pretty weighty, some 330 pages of legal French – as is standard, this is all written as one huge sentence – broken up by multitudinous semi-colons. it is not easy to digest, to say the least, but I shall try and give the bare bones of the decision.
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20 September 2012 by David Hart KC
The Chagos Refugees Group in Mauritius v. Foreign and Commonwealth Office, First Tier Tribunal, 4 September 2012, read judgment
and Bancoult v. FCO, 25 July 2012, Stanley Burnton LJ, read judgment
The manoevres by which the Chagossians were evicted from their islands in the Indian Ocean, the late 1960s and early 1970s, so to enable the US to operate an air base on Diego Garcia, do not show the UK Foreign Office in its best light. Indeed, after a severe rebuke from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
The first of these new cases is an environmental information appeal concerning the next phase of the story – how the FCO decided that it was not feasible to resettle the islanders in 2002-2004.
This decision was taken in the modern way – backed by a feasibility study prepared by consultants supporting the stance which the FCO ultimately were to take. And this case concerns the islanders’ attempts to get documents lying behind and around the taking of this decision.
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One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism. 
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