Category: Case comments
22 February 2012 by Karwan Eskerie
Hurley and Moore v Secretary of State for Business, Innovation and Skills [2012] EWHC 201- read judgment
This judgment, the latest in an expanding list of decisions on challenges to the Coalition government’s spending cuts, is an interesting example of judicial restraint and deference to the government on issues of macro-policy, at a time when the extent of judicial intervention into political decision-making is the subject of much debate in the legal profession and academia, thanks to Lord Sumption’s FA Mann Lecture on the subject late last year (see our post) and its recent rebuttal by Sir Stephen Sedley (discussed here).
The High Court (Elias LJ and King J) dismissed an application by two sixth form students for a quashing order against the regulations implementing the Government’s decision to raise the statutory cap on University tuition fees to £6,000 per year generally and £9,000 per year for qualifying courses. It did, however, grant a declaration that in reaching that decision, the Secretary of State for Business, Innovation and Skills had failed fully to comply with his public sector equality duties.
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19 February 2012 by David Hart KC
Solvay, CJEU, 16 February 2012 read judgment
This case is a sequel to C-128/09 Boxus, CJEU, 18 October 2011, for which see my post. Boxus was a reference from the Belgian Conseil d’Etat. Solvay was a reference from the Belgian Constitutional Court, with a wide set of questions asking, in effect, whether ratification by the Walloon Parliament of various airport and railway projects got round various challenges set by the Aarhus Convention, the EIA Directive, as amended, and the Habitats Directive.
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19 February 2012 by Guest Contributor
Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 – Read judgment
On 10th February 2012, the Court of Appeal upheld a Judge’s ruling that a Christian couple, Peter and Hazelmary Bull, had discriminated against Martin Hall and Steven Preddy on grounds of sexual orientation when they refused them a double-bedded room at their hotel near Penzance.
For many years, Mr and Mrs Bull had restricted the use of double-bedded rooms at the Chymorvah Private Hotel to married couples. As devout Christians they believed that monogamous heterosexual marriage was the form of partnership “uniquely intended for full sexual relations” and that sex outside of marriage – whether heterosexual or homosexual – was sinful. To permit such couples to share a double-bed would, they believed, be to participate in promoting the sin (single-bedded and twin bedded rooms were available to all).
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14 February 2012 by Matthew Hill
This is the second of two blogs on the recent Supreme Court case of Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 . Part 1 is here.
In my previous blog on the Supreme Court’s judgment in Rabone I discussed the central feature of the case, the extension of the operational duty on the state to protect specific individuals from threats to their life, including suicide. Here, I consider the other elements of the case that Melanie Rabone’s parents had to establish in order to succeed in their claim for damages under the Human Rights Act 1998 (“HRA”).
Existence of the operational duty in Melanie’s case
Having established that the operational duty could be applied in Melanie’s case, her parents then had to establish, on the facts, that it was – by showing that there was a “real and immediate” threat to her life from which she should have been protected. Ever since the notion of an operational duty was first enunciated in Osman v United Kingdom (2000) 29 EHRR 245, it has become something of a judicial mantra that the threshold for establishing a “real and immediate” threat was high (see for example Re Officer L [2007] UKHL 36, and Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681 [41] and [66],). There are good reasons for not imposing the operational duty lightly, given the enormous pressures and complexities involved in running police, prison and mental health services for the community as a whole. However, an overly-stringent test risked making the operational duty an obligation that was more hypothetical than real.
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12 February 2012 by Matthew Hill
Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 – Read judgment (On appeal from [2010] EWCA Civ 698 and [2009] EWHC 1827 )
At first sight, Article 2 – the ‘right to life’ – seems to be a prohibition on extra-judicial executions and state-sponsored death squads. It does, of course have a role to play in that respect (and one that is not limited to those countries whose signature of the Convention is viewed with scepticism from Western Europe).
But through a combination of logic, inventive legal argument and what can either be characterised as the incremental development of a new area of law, or the expansionist tendencies of Strasbourg judges, the scope of Article 2 has broadened significantly, and can be cited in cases concerning prison administration and coronial procedural law.
In Rabone, the Supreme Court extended the obligations that the Article places on the state and its servants still further, beyond even the existing decisions from Strasbourg. They held that – in the specific circumstances of this tragic case – an NHS Trust had violated the positive duty that it had, under Article 2, to protect a voluntary patient from the risk of suicide.
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10 February 2012 by Rosalind English
R on the application of the National Secular Society and Clive Bone v Bideford Town Council – read judgment
The High Court today ruled that the Town Council of Bideford (in Devon) had overreached their powers under the Local Government Act 1972 by insisting on the practice of prayers as part of their formal meetings. The ruling will apply to the formal meetings of all councils in England and Wales, the majority of which are thought to conduct prayers as part of their meetings.
Background
The Secular Society brought this application as part of their campaign to separate religion from public and civil life. They have observed that prayers have been the cause of tension in a number of local councils. But the Society needed to join an individual claimant since they could not be a “victim” for the purposes of the Human Rights Act.
The claimants contended that the practice, which dates back the days of Elizabeth the First, breached the prohibition on religious discrimination in the Equality Act 2006, and the replacement “public sector equality duty” in the Equality Act 2010: it discriminated indirectly against persons, such as Mr Bone, who had no religious beliefs, and it was not justifiable under those Acts. The practice interfered with Mr Bone’s right not to hold religious beliefs under Article 9 ECHR, and not to be discriminated against for that lack of belief under Article 14. They also contended that it was outside the powers of section 111 of the Local Government Act 1972.
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10 February 2012 by Andrew Tickell
Brought to you by Andrew Tickell
Cameron v. Procurator Fiscal [2012] ScotHC HCJAC_19 – Read judgment
Amongst Scots lawyers, few judicial observations are more notorious than those uttered by Lord Cranworth in the House of Lords in Bartonshill Coal Co v Reid in 1858. “If such be the law of England,” he said, “on what ground can it be argued not to be the law of Scotland?” Today, in a United Kingdom further complicated by the asymmetric devolution of the 1990s, it isn’t unusual to encounter a Cranworthy combination of perplexity and indifference amongst English lawyers when it comes to the structure and implications of devolution elsewhere in these islands.
On one level, this is perfectly understandable. Devolution is a matter for the Welsh, Northern Irish and Scots, the proposition runs. Let them get on with it. For those of us interested in the developing constitution, human rights and judicial review, weary of re-reading hand-me-down copies of Dicey, this inattention is to be regretted. The emerging body of litigation around devolution, and the powers of devolved institutions, is producing some of the most interesting “constitutional” cases in Britain today.
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9 February 2012 by Rosalind English
Stott v Thomas Cook Operators and British Airways Plc [2012] EWCA Civ 66 – read judgment
If you need reminding of what it feels like when the candy-floss of human rights is abruptly snatched away, take a flight. Full body scanners and other security checks are nothing to the array of potential outrages awaiting passengers boarding an aircraft. Air passengers in general surrender their rights at the point of ticket purchase.
The Warsaw Convention casts its long shadow. It was signed between two world wars, at the dawn of commercial aviation, when international agreement had to be secured at all costs. These strong interests survived the negotiation of the 1999 Montreal Convention, now part of EU law as the Montreal Regulation.
Yet so powerful is the desire to travel, and so beleaguered it is now with the threat of spiralling aviation fuel prices and environmental taxes, that we are happier to surrender our freedoms at airports than we are anywhere else – hospitals, doctors’ surgeries, schools, and even on the public highways.
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25 January 2012 by David Hart KC
Secretary of State for Energy and Climate Change v. Friends of the Earth and others, CA, 25 January 2012, read judgment
So, after an anxious wait for the affected businesses, the Court of Appeal has confirmed today that the Minister was too hasty in the way he went about modifying the scheme for subsidising small solar power schemes. But, as often, the Court went about things differently from the judgment below (see my initial and follow-up posts on this)
The Court held that the Minister had no power to do what he did, which was to say he was going to modify the subsidy rules in respect of schemes which had become eligible prior to the modification coming into effect. The legislation and rules are characteristically impenetrable, but the Minister proposed in a consultation, which closed on 31 October 2011, to reduce the subsidies for schemes which became eligible after 12 December 2011. The key point is that he proposed that this modification should come into force on 1 April 2012, and that those who had signed up to such a scheme between December 2011 and April 2012 lost much of their subsidy from 1 April 2012. The original scheme paid participants 43.3p per kilowatt hour for 25 years. The proposed revised scheme for these new joiners would pay them that rate until April 2012, but thereafter 21p per kilowatt hour for the rest of the 25 years.
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21 January 2012 by David Hart KC
C-28/09, European Commission v. Austria, 21 December 2011 – read judgment
Many countries in the EU are struggling to comply with its laws about air pollution. The UK is in continuing breach of its nitrogen dioxide emission limit: see my post just before Christmas. But one way a country can try to comply with these laws is by banning or limiting heavy traffic. And that is exactly what Austria did in respect of an important bit of its motorway network; it prohibited lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley. And just before Christmas, it paid the price.
The EU Court told Austria it was infringing EU law, in particular, Articles 28 and 29 of the EC Treaty (now Arts 34 and 35 of TFEU) which are the core provisions protecting free movement of goods. Why, given that it was trying to comply proactively with another requirement of EU law?
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19 January 2012 by Guest Contributor
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM – 8139/09 [2012] ECHR 56 – Read judgment – updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110).
The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.
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17 January 2012 by David Hart KC
R (on the application of (1) Homesun Holdings (2) Solar Century Holdings (3) Friends of the Earth) v Secretary of State for Energy and Climate Change , Mitting J, 21 December 2011, hearing in the CA 13 & 16 January 2012
Avid readers of this blog (posted unpromisingly between Christmas and New Year) may recall this successful challenge to a proposal to modify solar power subsidies for small photovoltaic proposals (called by the judge, charmingly, “small solar systems”). At that stage, all I had was a short summary of the decision. Now a full transcript is available, albeit from behind a paywall. As importantly, the case has already bounded its way to the Court of Appeal, who have just finished hearing it, and are due to give judgment in February. I shall therefore not deal with the basis upon which the judge ruled that the change of policy was unlawful, but the broader point in my last post – when can you challenge a proposal?
The judgment is pithy and helpful for those tussling with such a problem. The Minister contended that he could consult on any proposal, and provided he had not made up his mind, he could not be judicially reviewed whilst this process was happening. Yes, said Mitting J, I agree with all that…
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16 January 2012 by Rosalind English
The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd and Serco plc [2012] EWHC 8 (Admin) – read judgment
Although certain restraining measures had been taken unlawfully against young people in secure training centres for a number of years, the court had no jurisdiction to grant an order that the victims of this activity be identified and advised of their rights.
The claimant charity alleged that children and young persons held in one or other of the four Secure Training Centres in the UK had been unlawfully restrained under rules which approved certain techniques of discipline. It sought an order requiring the defendant to provide information, to the victims or their carers on the unlawful nature of restraint techniques used in Secure Training Centres (“STCs”) and their consequential legal rights.
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15 January 2012 by Karwan Eskerie
British Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad (Rev 1) [2012] EWHC 13 (Admin) – Read judgment
The High Court ruled that the Justice Secretary’s refusal to grant the BBC permission to have and to broadcast a face-to-face interview with terrorism suspect Babar Ahmad was unlawful.
The BBC and one of its home affairs correspondents, Dominic Casciani, had applied for permission to conduct the interview with Mr Ahmad, who is currently detained at HMP Long Lartin, and is fighting extradition to the USA. The BBC also wished to broadcast the interview. The Justice Secretary refused the permission, which refusal the BBC challenged in a judicial review claim.
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12 January 2012 by Rosalind English
AMP v Persons unknown – read judgment
If you lose your mobile phone with highly confidential and private information on it, all may not be lost. The unscrupulous finder may be prevented from blurting its contents all over the web, even if the identity of that person is unknown to you or the court. It requires considerable input of computer expertise, but it is possible, as this case (cleverly taken in the Technology and Construction Court) illustrates.
The applicant’s mobile phone was reported to the police as stolen after she lost it at university in 2008. It contained digital images of an explicit sexual nature which were taken for the personal use of her boyfriend at the time. The applicant was alone in the photos and her face was clearly visible.
Invoking the right to privacy under Article 8, and the Protection from Harassment Act 1997, she applied for an interim injunction to prevent transmission, storage and indexing of any part or parts of certain photographic images taken from the phone, and an anonymity order under CPR r.39.2(4), which meant that the application, which was heard in private on the basis that publicity would defeat the object of the hearing, would preserve the anonymity of the applicant. Both applications were granted.
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