By: Rosalind English
25 March 2011 by Rosalind English
The case of Patmainiece v Secretary of State for Work and Pensions was reported in an earlier post. Here we discuss the underlying rationale for the decision and ask whether the finding that the nationality requirement amounted to mere indirect discrimination was a correct “fit” with EU principles of free movement.
Article 18 (now article 21 TFEU) provides:
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States
However a different regime applies to non-economic actors as opposed to workers. Free movement of workers is one of the fundamental underpinnings of the internal market on which the EU is based. The main EU Directives and Regulations giving effect to the right to free movement of workers are Regulation No 1612/68 on freedom of movement for workers within the Community (as amended by Directive 2004/38/EC) and Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the member states. But the rights of those who are economically inactive to reside for more than three months in other member states is subject to certain conditions, set out in the 2004 Directive; they must
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16 March 2011 by Rosalind English
The government’s proposals for reform of the law on defamation have been published. The bill seeks to address concerns that libel law has a chilling effect on freedom of speech, failing to strike the right balance between free speech and protection of reputation.
The pressure of the widely-supported reform campaign, inspired by recent libel actions stifling comment on issues of scientific and academic debate, has no doubt contributed to the manifesto commitment on the part of all three parties which the coalition is now following through. The consultation paper and draft bill has been met with muted enthusiasm, with critics claiming that the proposed statute at best codifies the common law, with all its confusions and complexities, and that the whole is at worst “too little, too late” to meet their reform demands.
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8 March 2011 by Rosalind English
National Union of Rail, Maritime and Transport Workers v Serco (t/a Serco Docklands) [2011] EWCA Civ 226 – read judgment.
Aslef and RMT rail unions have succeeded in challenging injunctions that blocked their strike action over small faults in procedure.
The Court of Appeal has ruled that minor mistakes in balloting such as polling non-constituent workers – did not justify the injunctions that had prevented them from taking strike action. Trade union leaders have called the ruling a “major step for industrial freedom”.
Two strikes that were planned separately – by the RMT on London’s Docklands Light Railway and by Aslef on London Midland – were halted by injunctions in the High Court in December. The judge ruled that strike ballot procedures had not been properly followed and therefore the unions would be unlikely to claim the statutory protection for the action immunity under the Trade Union and Labour Relations (Consolidation) Act 1992 Pt V. The Court of Appeal has decided that ruling was wrong in law.
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2 March 2011 by Rosalind English
Johns v Derby City Council and Equality and Human Rights Commission (intervening) [2011] EWHC 375 (Admin)- Read judgment
Religious views opposing homosexuality are a legitimate fostering concern and the local authority’s approach to this question did not constitute religious discrimination.
The claimant husband and wife applied to the defendant local authority to be approved as short-term, respite, foster carers. They were members of the Pentecostalist Church and believed that sexual relations other than those within marriage between one man and one woman were morally wrong. The local authority considered that the claimants’ views on same sex relationships did not equate with the National Minimum Standards for Fostering Services which required carers to value individuals equally and to promote diversity. The local authority’s Fostering Panel therefore deferred a decision.
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1 March 2011 by Rosalind English
Like many points of European law, the question whether the UK and Polish protocol to the EU Charter of Fundamental Rights amounts to a full opt-out is mired in confusion and political prejudice.
Its characterisation as an opt out or a mere “clarification” depends on where one stands on the eurosceptic/europhile spectrum. So where do we find a practical rather than an ideological answer to this important question? Certainly not in the political or academic record.
First, a reminder of what the Charter is all about. From the very early days of the European Community the Court of Justice (ECJ) has relied on fundamental principles of human rights as an interpretative tool, and the key provisions of the Charter are derived from the ECHR, which is uncontroversial enough. However a large number are drawn from the Community Social Charter 1989 and the Council of Europe’s Social Charter 1961. These are the so-called “social and economic rights” which appear to transform aspirational norms into judicially enforceable ones, like the right to work or healthcare. These “rights” are largely to be found in the “Solidarity Title” of the Charter, and it is to this part of the Treaty that the UK secured an opt out at the European Council in 2007.
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19 February 2011 by Rosalind English
Tovey & Ors v Ministry of Justice [2011] EWHC 271 (QB) (18 February 2011) – read judgment.
In a case heard the day before Parliament debated whether it should amend the law preventing prisoners from voting, the High Court struck out a claim for compensation by a prisoner in respect of his disenfranchisement.
Although it was “not part of the court’s function to express any view as to the nature of legislative change”, this ruling confirmed that as a matter of English law, including the Human Rights Act 1998, a prisoner will not succeed before a court in England and Wales in any claim for damages or a declaration based on his disenfranchisement while serving his sentence.
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16 February 2011 by Rosalind English
The latest episode in the soap concerning our relationship with Strasbourg may end in a fizzle rather than a cliffhanger, but it has provoked some useful soul-searching about the vision of the good embodied in the ECHR, and its monopoly on the right to govern social life.
Derogating from the ECHR or even pulling out of Strasbourg altogether have ceased to be taboo subjects for discussion, but the fear seems to be that the consequence of such defection would mean reversion to selfish nationalism. Is this a bad thing?
This question is not as facetious as it seems and answering it is central to the long term maintenance of a set of principles by which states agree to live.
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15 February 2011 by Rosalind English
British Pregnancy Advisory Service v Secretary of State for Health [2011] EWHC 235 (Admin) – read judgment
The High Court has ruled that the law requiring that administration of the early medical abortion drugs take place at hospital cannot be read down to allow self-administration at home. The approval of the appropriate place for treatment must be made by the Secretary of State.
The current accepted treatment for a medical abortion up to 9 weeks’ gestation involves the prescription and two-phase administration of drugs at intervals of 24-48 hours. The claimant organisation argued that the requirement for women to return to the hospital or clinic for a second visit created unnecessary stress and hardship and therefore that the term “treatment” in the relevant legislation should be interpreted to mean that only the prescription and issuing of the drugs should take place in a hospital, allowing women to stay at home after the first visit.
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9 February 2011 by Rosalind English
Bringing Rights Back Home is the latest policy document to address the tension between judges and politicians over public policy with human rights implications.
Within hours of publication of the report, a hard-hitting academic paper put together by the political scientist Michael Pinto-Duschinsky, criticism started pouring in, and there will be no doubt more huffing and puffing to come.
But before these lofty admonitions stifle them, it is worth considering some of the paper’s objections and proposals. These are legitimate points made in a political debate which has been masquerading for years as a legal one. The document is essentially uncontroversial, in legal terms.
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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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The case of Patmainiece v Secretary of State for Work and Pensions was reported in an earlier post. Here we discuss the underlying rationale for the decision and ask whether the finding that the nationality requirement amounted to mere indirect discrimination was a correct “fit” with EU principles of free movement.
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