By: Rosalind English
2 February 2011 by Rosalind English
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment
This case (see yesterday’s summary) is illustrative of two misconceptions about rights that we are all in thrall to from time to time.
One is that there is a fundamental hierarchy of human rights which allows certain interests to prevail over others in all situations; the other is that this hierarchy is determined by considerations that are morally and politically neutral. A prime example of this kind of principle is the idea of the “overriding rights of the child”, a consideration with a perfectly orthodox role in family law, but one whose application to human rights as a whole is questionable.
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1 February 2011 by Rosalind English
R on the application of Hope and Glory Public House v City of Westminster Magistrates Court [2011] EWCA Civ 31 Read judgement
It was not unfair in terms of Article 6 to require of a party aggrieved by a licensing decision to bear the responsibility of persuading the court hearing the appeal that the original decision was wrong.
This appeal raises a question about how a magistrates’ court hearing an appeal from a decision of a licensing authority under the Licensing Act 2003 (“the Act”) should approach the decision.
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25 January 2011 by Rosalind English
Food production is becoming a chosen territory for some of the fiercest current battles about freedom of information in this country. In 2009 the Channel 4 broadcast of a film about the pork factory business was effectively shut down by the threat of libel action; in the last week the Guardian reported that libel lawyers Carter and Ruck have written to the Soil Association threatening legal action if they failed to withdraw allegations underlying their objection to a planning application for one of the country’s largest pig units.
Update (15 January 2011): Nocton Dairies Ltd has withdrawn its planning application for a 3,700-cow mega-dairy in Lincolnshire.
Pig production company Midland Pig Producers (MPP) is seeking planning approval for 30 acres of land in Foston, Derbyshire, to develop a pig unit containing 2,500 sows and up to 25,000 pigs. The Soil Association formally objected to the plans because of the ‘increased disease risk and poor welfare conditions” of intensive units.
The application to South Derbyshire district council was in fact withdrawn after it was ruled that it needed to go to the county council instead. This is because the proposed inclusion of an anaerobic digestion unit on the site brings in waste matters which concerns the jurisdiction of the county council rather than the district planners. MPP expects to reapply in the next few weeks.
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21 January 2011 by Rosalind English
Morge (FC) (Appellant) v Hampshire County Council (Respondent) on appeal from [2010] EWCA Civ 608- Read judgment
We cannot drive a coach-and-horses through natural habitats without a bit of soul-searching, says the Supreme Court .
The UK has conservation obligations under EU law to avoid the deterioration of natural habitats and this goes beyond holding back only those developments that threaten significant disturbance to species. Detailed consideration must be given to the specific risks to the species in question. But this consideration can be left to the quangos; planning committees are not obliged to make their own enquiries.
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19 January 2011 by Rosalind English
MGN Limited v The United Kingdom – (Application no. 39401/04) Read judgment
The details of the Court’s ruling are set out in our previous post on this case. The following analysis focusses on the success of the newspapers’ core complaint concerning the recoverability against it of 100% success fees.
This judgment has serious practical implications not just for publication cases but for any civil case not covered by legal aid, and although the ruling is only binding on the government, not on the courts, the potential for its immediate domestic impact cannot be ignored. Defendants challenging costs orders will have this judgment at the head of their arsenal from today; the practical resonances of the case are imminent.
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18 January 2011 by Rosalind English
IFAW Internationaler Tierschutz-Fonds gGmbH; read judgment
EU law is replete with the soaring rhetoric of rights and transparency. Indeed the very first Article of the Treaty on European Union states that ‘decisions are taken as openly as possible and as closely as possible to the citizen’ . But not, it appears, when the decision concerns the balance between short-term economic interests and those of the environment – or, in the Commission’s own words, the “Community’s natural heritage”.
Key facts and figures relating to central policy remain firmly under lock and key in the EU, as NGOs find when they try to get the Commission to enforce the various Directives against national governments and the EU institutions themselves.
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14 January 2011 by Rosalind English
Bank Mellat v HM Treasury [2011] EWCA Civ 1: read judgment.
Financial restrictions imposed in 2009 on an Iranian Bank which effectively excluded it from the UK financial market did not breach common law or ECHR principles of fairness, said the Court of Appeal on Thursday.
The Counter-Terrorism Act 2008 conferred powers on the Treasury to restrict persons operating in the financial sector from entering or participating in any transaction or business relationship with the appellant Bank Mellat (BM). The Order, which was subject to the affirmative resolution procedure and reviewable on limited grounds (Section 63(2) CTA) was justified by a Ministerial Statement which declared that the direction to cease business would
reduce the risk of the UK financial sector being used, unknowingly or otherwise, to facilitate Iran’s proliferation sensitive activities.
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13 January 2011 by Rosalind English
R (on the application of) Reetha Suppiah and others v Secretary of State for the Home Department and Interveners [2011] EWHC 2 (Admin) – Read judgment
A high court judge has ruled that two asylum seekers and their children were unlawfully detained at Yarl’s Wood immigration centre last year.
This ruling will add fuel to the flames of the debate over whether the government is truly committed to ending the detention of children in immigration centres, or whether they intend merely to “minimise” it.
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12 January 2011 by Rosalind English
C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eVvBezirksregierung Arnsberg Trianel Kohlekraftwerk Lünen (intervening) – read judgment
The German system of judicial review involves a “careful and detailed” scrutiny of administrative decisions. However, admissibility criteria are such that few are able to access this system, particularly groups bringing actions alleging environmental harm.
At the centre of this case is the highly topical matter, relevant to one of the discussion threads on this site, of the trend towards a new system of environmental justice, heralded by Aarhus and the accompanying EU Directives, where national courts to are required to recognise claims brought by pressure groups alleging infringement of environmental provisions, even where there is no individual legal interest involved. The Trianel case puts into sharp focus the debate as to whether the environment should be protected not as an expression of an individual’s interest, but as a general public interest, enforceable in the courts.
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7 January 2011 by Rosalind English
[Updated] In the spirit of our coverage of environmental activism in one form or another, here is the website strapline for the Campaign for Real Farming, which sets out to
achieve nothing less than the people’s takeover of the food supply
Some of the initiatives for that takeover were being aired at the CRF’s “fringe” farming conference which took place in Oxford this week, voicing polite but forceful protest against the high production objectives of the mainstream Farming Conference in the Examination Schools next door.
According to CRF founder Colin Tudge, if we are serious about feeding 9 bn people in a few decades’ time, the current food production system, which is designed to make money, has to be dismantled in favour of small scale, labour intensive farming, which is designed to feed people. Like any reform movement, this “agrarian renaissance” is about wresting power away from existing authorities and it has set its sights on, amongst other things, the constellation of laws and regulations governing the cultivation of food.
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7 January 2011 by Rosalind English
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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20 December 2010 by Rosalind English
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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16 December 2010 by Rosalind English
Ofulue v United Kingdom, Application no. 52512/09 – read 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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16 December 2010 by Rosalind English
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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13 December 2010 by Rosalind English
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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ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment
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