Category: Features

Human rights – Strasbourg or Luxembourg?

9 September 2011 by Rosalind English

When a Convention right arises in circumstances which also engage EU law, which court is the final arbiter of their meaning and application?

This is not as arcane a question as it appears, since in the UK many cases engage points of EU law, so Convention rights, which are part of the “general principles” of Community law, get in under the wire via the   European Communities Act 1972.  And  in July the Council of Europe published the draft agreement for accession of the European Union as a signatory to the European Convention, which either adds another string to the ECHR bow, or a further layer of constitutional obscurity of interest only to international jurists, or both: – time will tell.
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There’s no place like home… if you have one

25 August 2011 by Isabel McArdle

There are somewhere in the region on 12 million people worldwide who have no nationality. Being stateless can create enormous problems, from being unable to rely on diplomatic assistance to having no home country with an automatic right to return to. The risk to stateless of people of having their human rights breached to is great. The United Nations has expressed its concern repeatedly, and is encouraging states to sign up to two conventions which provide basic rights to those without a state.

Back in March we considered a case where a man claiming asylum alleged that he was a member of a particular ethnic group which, it was accepted by the parties, is at risk of persecution in Kuwait. His claim failed as the court found him to be Kuwaiti. However, because he had no documents to show he was Kuwaiti, the Kuwaiti authorities would not allow him to enter their state. Hence the Catch-22 situation of many stateless people, where they cannot establish a right to reside in one state but have no other state to return to.

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The Environmental Tribunal: the view from Auckland

8 July 2011 by John Joliffe

Access to environmental justice is as topical as ever. Delegates at the recent conference of the United Kingdom Environmental Law Association (UKELA), held in late June at UEA in Norwich (yards from the Climatic Research Unit much in the news) argued that the current regime in this country is unsatisfactory – because of the cost, but also, and less predictably, because of a lack of basic fairness.

One QC who specialises in planning law pointed to the fact that a developer who is dissatisfied with a planning decision can appeal it, but an affected third party (often a disgruntled resident) cannot. He commented off the record that in his experience both as an advocate and as a decision-maker, decisions were affected by the knowledge that developers could readily challenge refusals, whereas third parties could not challenge grants other than by way of judicial review.

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Nature: give it a right or put a price on it?

14 June 2011 by David Hart KC

A recent guest post from Begonia Filgueira celebrated the move by the Bolivian Parliament to accord rights in law to Nature. It rightly commanded considerable attention but not all readers were ecstatic. So when last week DEFRA came out with a rather different approach to valuing nature in its Natural Environment White Paper – the first in 20 years – it was interesting to see the way that the Environment Department thought things should be done.

Not the Bolivian route, unsurprisingly, but the White Paper raises an entirely different way of valuing nature which we should compare with the idea of granting rights.

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Does “bringing rights home” mean bringing problems home too?

13 June 2011 by Matthew Hill

McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment

The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?

The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length.  The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.

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Oil spills and tar sands: ecocide questions

7 June 2011 by David Hart KC

Our guest post from Frances Aldson last week drew many and varied comments from our readers on this blog and elsewhere, including those at each end of a spectrum ranging from the enthusiastic to the choleric.

This follow-up post is designed for those who have no strong views but who want to muse on the implications of the proposal which is due to be raised, via one route or another, with the UN, either this year or next.

The proposal, by Polly Higgins, is to add a new crime of “ecocide” to the jurisdiction of the International Criminal Court, namely:

Ecocide is the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.
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Why can’t objectors appeal a planning consent or environmental permit?

6 June 2011 by David Hart KC

The ticklish question of how to come up with a cheap but effective form of environmental judicial review still has not been answered.

One way talked about at a recent seminar on environmental tribunals (see John Jolliffe’s post of today) is to use the environmental part of the new tribunal system, and have judicial reviews heard by judges sitting there. As John noted, the advantage to claimants is that there is a general practice in the part of the tribunal dealing with land disputes that costs are not awarded against them if they lose – unless they have been thoroughly unreasonable.
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Pearls and badgers – location, location, location

14 April 2011 by David Hart KC

Here we are, back with the  access to environmental information question…From rape, bees and lettuces , a coda, involving a diversion via a new road scheme planned for Aberdeen taking in pearls and badgers, crossing the River Dee Special Area of Conservation.

An opponent of the project brought a claim against the UK government before the Aarhus Compliance Committee; findings of the Committee were adopted on 25 February 2011. The complaints ranged far and wide but the point of interest arose under an exemption to disclosure in Article 4 of the Aarhus Convention, namely that disclosure would adversely affect “(h) the environment to which the information relates, such as the breeding sites of rare species.” This has found its way into reg.12(5)(g) of the Environmental Information Regulations 2004/3391, shorn, in a typically English way, of the helpful explanatory words underlined. Wouldn’t want the reader to get its meaning at a glance, would one?

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Aarhus breaches all round?

13 April 2011 by David Hart KC

On 6 April 2011, the European Commission announced that it has decided to refer the UK Government to the Court of Justice of the European Communities under Article 258 TFEU, for failing to provide affordable access to justice in environmental cases.

This blog has previously charted some of the twists and turns in the process of showing that environmental challenges are currently “prohibitively expensive” within the meaning of Article 9(4) of the Aarhus Convention – not the least of which was a complaint to the Aarhus Compliance Committee which was upheld by that Committee in October 2010. And the underlying concern is the state of the costs rules under which a claimant may be ordered to pay tens of thousands of pounds of costs if he loses, despite the developing case law on Protective Costs Orders designed to mitigate this.
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Do burglars have human rights?

4 April 2011 by Matthew Flinn

The proposition that burglars have rights incites debate, and sometimes anger, which is often directed towards the Human Rights Act 1998 and the European Convention of Human Rights. However, on closer examination, the idea of “burglars’ rights” is not a new phenomenon in English law, and nor has it been imposed upon us by Strasbourg. The rights that burglars enjoy have long been part of the fabric of English common law.

There is nothing new about the idea that criminals in general, and burglars in particular, have forfeited their human rights by virtue of their criminality.

As Michael Cholbi of the University of New York has described in his article discussing felon disenfranchisement in the United States, “A Felon’s Right to Vote”, the strong conviction held by some that criminals should not enjoy the benefit of human rights is founded upon a basic intuition that “criminal acts alter the moral status of wrongdoers, permitting us to do to them what is otherwise unjust”. Essentially, having demonstrated an unwillingness to regulate their own conduct, criminals cease to be an object of moral concern.
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Squaring equality with religion – Aidan O’Neill QC

29 March 2011 by Guest Contributor

The relationship between the expression of religious beliefs and practice and equality law is a fraught one, and particular difficulty has been experienced in the matter of the application of the law outlawing discrimination.

Equality law, as currently interpreted, treats the six prohibited grounds of discrimination – age, disability, race, religion, sex (including transgender status) and sexual orientation – as being of equal weight and standing; there is no hierarchy among these grounds.

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Reform of Strasbourg Court: a modest proposal – Aidan O’Neill QC

28 March 2011 by Guest Contributor

The coalition Government has appointed an independent Commission to investigate the case for a UK Bill of Rights.  This Commission has also been tasked with providing advice to the Government on the possible reform of the European Court of Human Rights – as part of on the ongoing Interlaken process – ahead of and following the UK’s coming Chairmanship of the Council of Europe.

One does not have to be human rights sceptic to accept that there is an unequivocal case for further reform of the Strasbourg Court because, unless something is done, the current system for human rights protection at a European level is in danger of imminent collapse.
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Benefits tourism in the EU – Analysis

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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Beware the poor lawyer: the legal aid reform responses

18 February 2011 by Maria Roche

The consultation on the Government’s proposed reforms of legal aid closed on Monday 14th February. The reforms amount to a substantial reduction in the scope of and eligibility for legal aid.  When opposition to reform of access to forests can force a Government U-turn, can opposition to reform of access to justice do the same?

In a recent interview with the Daily Telegraph,  Clarke was said to be sanguine about criticism of legal aid cuts:

Oddly enough, I’m not in as much difficulty as I thought.

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It’s time we packed our bags at Strasbourg, says report

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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