Media By: Rosalind English


Is the planet our neighbour, in law?

7 January 2011 by

It must be something in the air. On the day the “Ratcliffe 20” were spared imprisonment for their planned attack on a power station, the Guardian published environmental lawyer Polly Higgins’ call for a new crime of ecocide and the fringe movement Campaign for Real Farming – rival to the mainstream Oxford Farming Conference – were sewing the seeds for resistance to ecologically damaging agricultural laws and practices.

The widespread perception is that the law and its custodians can no longer be trusted to safeguard the environment, or, to put it in the language of rights, that the protection that flows from current forms of rights entitlement is not only insufficient for, but positively damaging to the interests of the natural world.

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Slow but steady on access to environmental justice from supreme court

20 December 2010 by

R (on the application of Edwards and another) (Appellant) v Environment Agency & others(Respondents) [2010] UKSC 57 – Read judgment

The development of the principles of access to justice in environmental cases moves on apace.

This case arose out of a failed attempt to seek judicial review of the Environment Agency’s decision to issue a permit for the operation of a cement works. The application was made under the Environmental Impact Assessment Directive 85/337/EC and the Intergrated Pollution Prevention and control Directive 96/61/EC, both of which incorporate Article 9 of the Aarhus Convention, which requires that costs for environmental proceedings should not be prohibitively expensive.

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“Without prejudice letter” can be withheld without breaching fair trial rights

16 December 2010 by

Ofulue v United Kingdom, Application no. 52512/09read judgment

The Strasbourg Court has confirmed that the inadmissibility of a “without prejudice” letter neither interferes with an applicant’s fair trial rights under Article 6 nor does it prejudice their rights to enjoyment of property under Article 1 Protocol 1 where the production of such a letter might have proved their title in  proceedings challenging adverse possession.

The applicant was the registered owner of a property in London which became subject to adverse possession. In the dispute over whether or not her title had been extinguished she sought permission to produce a “without prejudice” letter from the tenants which had been written some years before making an offer on the house.  
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UK scheme to police sham marriages slammed by Human Rights court

16 December 2010 by

O’Donoghue and Others v. the United Kingdom(application no. 34848/07):

The government’s system for preventing sham marriages as an entry ploy for immigrants breached the right to marry and was discriminatory – read judgment.

By the time this case was lodged the Certificate of Approval Scheme had been much diluted by a series of amendments, but even so the Court found itself to be “gravely concerned” with the policy.  This, along with the surprisingly lenient approach to the applicants’ failure to exhaust local remedies, suggests that the Court was anxious to address what it sees as endemic problems in the UK’s border control policy.  If states want to use impediments to marriage as an entry deterrent, it says, then they must face being rapped with the Article 12 stick.
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Entrenched EU law? Yah boo

13 December 2010 by

The  “sovereignty clause” included in the European Bill  to shield UK legislative supremacy is not only ineffective   but could positively threaten the very principle by inviting speculation and litigation, say experts. This is the  thrust of the EU Scrutiny Committee’s report on the European Bill, published on 6 December.

The report is an exemplar of clarity and even-handedness in this controversial field, and here is the bottom line. The debate over whether EU has primacy over national law, or vice versa, is a matter of political ideology only, and not a very complex one at that. It is not a philosophical, scholastic, juridical or even legal question, despite the amount of ink spilt over it during the four decades or so since accession under the European Communities Act 1972.  As the Committee received evidence on the question from a wide range of experts in the field, one thing became clear; that instead of thinking out the question afresh, the temptation for everyone involved in this subject is to adumbrate a series of conclusions towards entrenched positions on either side of the divide.  And here they are:
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Analysis: Secretary of State cannot recover benefits overpaid by mistake

9 December 2010 by

The Child Poverty Action Group (Respondent) v Secretary of State for Work and Pensions(Appellant) [2010] UKSC 54 – Read judgment / press release

The Supreme Court has ruled that where benefits are overpaid as a result of a mistaken calculation, the department responsible cannot claim these amounts back via the common law route of restitution; the Secretary of State’s only recourse is via Section 71 of the Social Security Administration Act.

The following summary is taken from the Supreme Court site’s Press Release, with my comment below:

This appeal concerns the question whether, in cases of social security benefit awards mistakenly inflated due to a calculation error, the Secretary of State is entitled to recover sums overpaid under the common law of unjust enrichment or whether section 71 of the Social Security Administration Act 1992 (the “1992 Act”) provides the only route to recovery (nb. the Supreme Court press summary wrongly refers to the Social Security Benefits Act 1992).

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Environmental compliance body urges major changes to law

8 December 2010 by

This time two years ago two obscure environmental groups,  Clientearth and the Marine Conservation Society , took a step that may make more difference to the enforcement of environmental rights in this country than all the recent high-profile “green” NGO campaigns put together.

They submitted a complaint – euphemistically called a “communication” – to the enforcement body of the Aarhus Convention, a treaty which lays down baseline rules for proper environmental justice in the EU, alerting it to various shortcomings in the legal system of England and Wales (inelegantly but conveniently referred to in the report as E & W).
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Analysis: Cigarette vending machine ban not breach of human rights

6 December 2010 by

This morning we reported on the case of Sinclair Collis Ltd v Secretary of State for Health & Anor [2010] EWHC 3112 (Admin) – see Isabel McArdle’s post on the case. Rosalind English analyses the implications of the High Court’s decision.

Hard on the heels of Petsafe, the administrative court has been asked once again to give close attention to Article 36 TFEU and member states’ scope for imposing restrictions to free movement of goods (see our post on the “health of animals” derogation).  It seems that human health is such a core value of the common market that any reference to it by way of justifying a ban or restriction on goods or services is very hard to resist, particularly when the step is one taken by the legislature rather than the executive.

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EU fundamental rights do not extend to US death row, says High Court

2 December 2010 by

R (on the application of Zagorski and Baze) v Secretary of State for Business, Innovation and Skills and Archimedes Pharma UK Ltd – read judgment

The Administrative Court has put down a marker on the potential applicability of the EU Charter of Fundamental Rights about the morality of certain trade with the United States. The case concerned the export of Sodium Thiopental, an anaesthetic drug that is used as a preliminary to the lethal injection for prisoners on death row. This is the first time a domestic court has made a definitive ruling on the potential role of the EU Charter in domestic law. Earlier this year the Court of Appeal referred a question on the Charter to the ECJ for determination on its relevance to asylum proceedings: see R (S) v Home Secretary & (1) Amnesty International & AIRE Centre (2) UNHCR and our post on the subject.

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Costing the planet: should environmental cases have a free run?

30 November 2010 by

Big business between government and property developers may be at risk from public interest challenges in the courts if current obstacles are removed.

Following  critical findings by a UN environmental body, the Government has set out its latest proposals for allocating the costs burden in environmental cases.  The current position is that an applicant who seeks to dispute the lawfulness of a decision, say, to grant permission for a development, will only  get a court order preventing commencement of construction if they are prepared to pay for the developer’s loss should their claim fail at the full trial of the merits.

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Lies and damned lies: the standard of proof in asylum cases

26 November 2010 by

MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 49 – read judgment (press summary in earlier post)

The Supreme Court has ruled that where the Asylum and Immigration Tribunal (AIT) had directed itself correctly as to the impact of an asylum seeker’s lies on his claim, the Court of Appeal should have been very slow to find that it had gone on to apply that direction incorrectly.

This case brings to the fore the very difficult task facing immigration judges trying to determine the veracity of claimants’ testimony in asylum cases. The Supreme Court declined to express a conclusive view on the standard of proof in this area, a point which was acknowledged to be “both difficult and important”. It was left for an authoritative decision by that Court – but when such an occasion arise? The importance of settling this point cannot be overstated.
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Asylum seeker’s lies relevant to outcome of claim, says Supreme Court

25 November 2010 by

MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 49. Read judgment

Update,  26 November – Rosalind English’s case comment is here

The following report is based on the press summary provided by the Supreme Court.

The issues raised in this appeal were: (1) the correct approach to the relevance of lies told by an asylum seeker in the assessment of real risk of persecution on return to his or her country of origin; and (2) how far it is legitimate for an appeal court to interfere with the assessment of facts made by a specialist tribunal on the grounds of error of law.

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UK and Strasbourg to conflict over return of Iraqi refugees

24 November 2010 by

Iraqis whose applications for asylum are unsuccessful will be continued to be deported, according to a government minister. The announcement comes despite the European Court of Human Rights effectively calling for a freeze on the practice.

The BBC reported on Monday that Foreign Office minister Alistair Burt told the them that Iraq was now considered safe enough for people to return to. An earlier post explored the legal implications of the return by the UK of Baghdad last year.  The Upper Tribunal (Immigration and Asylum Chamber) held that the degree of indiscriminate violence in Iraq was not so high that the appellants could resist return.
Other parties, such as the UN High Commissioner for Refugees, maintain that much of Iraq remains unsafe, although the majority are sent to the North where explosions and shootings are not the danger they are in the South. But as long as the UK government maintain the view that Iraq is no longer a war-torn country, there are no grounds for the Iraqi’s continued presence in here.
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Analysis: Pet shock collar ban – barking, or a new era for rights?

23 November 2010 by

Updated | The recent High Court decision upholding the ban on electronic training collars for domestic animals raises the interesting and topical issue of animal welfare and its role in EU law.

In her post on the case Catriona Murdoch discusses the various arguments involved,  from human rights to irrationality to proportionality under EU law, and the extent to which the language of human rights can be enlisted in the service of animal protection. Conor Gearty has analysed this topic in a persuasive paper published in 2008; here we  look at the question in relation to permitted justifications for impeding free movement for goods and services in the Community.

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New EU Bill seeks to enshrine British sovereignty

12 November 2010 by

The much-debated “sovereignty clause” has now been published in the European Union Bill.

As predicted by our previous post on the subject and the wealth of commentary elsewhere, the declaratory provision does nothing more than set out, in unambiguous terms, the common law principle of parliamentary sovereignty; the principle that Parliament, being sovereign, cannot abandon its own sovereignty. It has no effect on the rights and obligations conferred by EU law. It simply serves as a reminder that the enforceability of these rights and obligations are dependent on the continuing survival of the European Communities Act 1972, and nothing more.

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