Category: In the news
3 October 2013 by David Hart KC
Mousa and others, R (on the application of) v Secretary of State for Defence [2013] EWHC 2941 (Admin) – read judgment
A postscript to Rosalind English’s post of today. In the substantive judgment (see Adam Wagner’s post on the order), the Divisional Court decided two main issues, one relating to the independence of the Iraq Historic Allegations Team, and one relating to the extent to which an inquiry conducted through IHAT complied with Article 2 of the ECHR. The Secretary of State succeeded on the first issue, whereas the claimant succeeded substantially on the second issue relating to the need for a different form of inquiry. Hence there was no overall winner; the Secretary of State won on the first issue and the claimant succeeded substantially on the second issue. But more time was spent on the first issue.
What then to do about costs? And why is that interesting – promise you, it is important.
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3 October 2013 by Rosalind English
Mousa and others, R(on the application of) v Secretary of State for Defence [2013] EWHC 2941 (Admin) – read judgment
Earlier this year, the High Court ordered that an approach based upon a coroner’s inquest would be the most appropriate form of inquiry under Article 2 EHCR into claims of ill treatment or killings of civilians by the British armed forces in Iraq (see Adam Wagner’s post on this decision). Here the President of the Queen’s Bench sets out the Court’s views as to the form such inquiries should take.
- A designated Judge, Leggatt J, has been appointed to oversee the conduct of the inquiry.
- An inquiry ought to be commenced as soon as it is clear that there will be no prosecution in cases to which the Article 2 obligation to hold an inquiry attaches
- To ensure that the Inspector is able to determine how each death occurred, it should be open to the inquiry to have powers of compulsion over military personnel to give evidence and produce documents.
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2 October 2013 by Rosalind English
C-363/12: A Government Department and the Board of Management of a Community School – read AG Wahl’s opinion
Case C‑167/12 : C.D. v S.T. – read AG Kokott’s opinion
Two opinions from Luxembourg on exactly the same issue, with diametrically opposed conclusions. AG Wahl (male) says, in brief, that the Pregnancy Workers Directive does what it says on the tin. It does not apply to non-pregnant employees, even though one of these might be an “intended mother” i.e. a woman who for medical reasons cannot carry a pregnancy to term, who has commissioned a surrogacy. AG Kokott (female) concludes firmly that the Pregnancy Workers Directive was designed to protect the relationship between mothers and their unborn or newborn, whether naturally produced or arranged by surrogacy. These opinions were published on the same day, with no mention in either of the other case. We can only conclude that the AGs read each other’s drafts, and decided to go to press with them together, leaving the CJEU to reconcile them in some way or another.
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29 September 2013 by Adam Wagner
The Conservative Party Conference began today. As has been the case in past years, human rights policy will have a prominent role to play, but much of which is said will be bluster. The Prime Minister has already said that all options are on the table, including withdrawal from the European Convention on Human Rights (ECHR). Expect more tomorrow when Lord Chancellor Chris Grayling and Home Secretary Theresa May step up to the podium from 2:30pm to 4pm.
Judging from the Prime Minister’s comments as well as Chris Grayling’s in the Spectator, it appears likely that this party conference will be similar to previous ones. Government ministers will promise that a majority Conservative government will replace “Labour’s” Human Rights Act with a Bill of Rights – a longstanding Tory policy which also featured in the party’s 2010 manifesto (at p.79). The promise was scuppered after the 2010 election due to demands from coalition partners, the Liberal Democrats. And, the Tories will continue to make vague threats that “people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg” (Grayling, a self-described “staunch Eurosceptic”) and that ECHR withdrawal “may be… where we end up” (Cameron).
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29 September 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular airport departure board of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
This week the Conservative Party Conference is likely to generate human rights headlines. Meanwhile, previous controversies still bubble away. Chris Grayling, taking a break from legal aid cuts, offered his opinion on the Europe debate. Meanwhile, others considered the role of transparency, demeanour, religious freedom and niqabs in the courts, and, with the proposed smoking ban in prisons, smokers may have found another reason not to break the law.
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27 September 2013 by David Hart KC
Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here
I did an initial post here summarising this opinion from the A-G to the CJEU saying that the UK was in breach of two EU Directives about environmental assessment and pollution control – the breaches concerned our system for litigation costs. It struck me that there was a lot in the opinion, and after some re-reads, I continue to think so. So I will deal in this post with one aspect, namely the finding that the UK is in breach, in requiring an undertaking as to damages by the claimant to back up the claimant’s interim injunction – in the jargon, a cross-undertaking.
We are back on the well-trodden path of the UN-ECE Aarhus Convention to which the EU has subscribed. Article 9(4) requires that there be review procedures in environmental cases which shall provide “adequate and effective remedies including injunctive relief as appropriate, and be fair, timely and not prohibitively expensive.” And a requirement for a cross-undertaking, the A-G concluded, infringed that provision.
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25 September 2013 by Rosalind English
J.D. Heydon: Are Bills of Rights necessary in common law systems? – read lecture
Former Australian High Court Justice Heydon’s thought-provoking speech questioning the efficacy and indeed the very merits of the Human Rights Act deserves reading in full, but the following summary highlights its main features and should encourage readers to immerse themselves in the lecture.
Proponents of human rights instruments urge their necessity on society because they gesture toward a morality more capacious than the morality of our tribe, or association, or nationality. The forum of human rights is one in which our allegiances are not to persons or to wished-for outcomes but to abstract norms that are indifferent to those outcomes. That is why the Human Rights Act has around it what Heydon calls an “aura of virtue” that would make its repeal extremely difficult from a political point of view, even though it is legally and practically possible.
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24 September 2013 by David Hart KC
Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Haddon-Cave J, 22 August 2013 read judgment
This is a successful judicial review of the grant of planning permission to a proposed new golf club in leafy Surrey – where one central issue was whether, in planning policy terms, there was a “need” for the club. The local planning officers had advised the council against the proposal, but the members voted in favour of it (just), hence this challenge. It succeeded on grounds including perversity, which is pretty rare, especially in the planning context, but, when one looks at the judgment, you can readily see why the judge concluded as he did.
The judgment contains some pungently expressed reminders that the planning system is not just about facilitating “business” but requires a proper assessment of the public interest. And dressing up the provision of very very expensive golf to a few very very rich people as “need” does not wash.
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24 September 2013 by Matthew Flinn
Wright v Commissioner of Police for the Metropolis [2013] EWHC 2739 (QB) – Read Judgment
Image via Richard Millett’s Blog
The High Court has found that the containment of a protester in a designated protesting pen for seventy five minutes was not unlawful at common law, nor under the Human Rights Act 1998.
On 30th March 2011, a seminar marking sixty years of British-Israeli diplomatic relations took place in Chatham House in St James’ Square, London. The Israeli President, Mr Shimon Peres, was to be in attendance, and a group of protesters from the Palestinian Solidarity Campaign took the opportunity to demonstrate outside the seminar venue.
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23 September 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular fruit salad of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.
Judge Peter Murphy’s ruling on the niqaab in criminal proceedings dominates this week’s commentary. Some interesting pieces also on immigration detention following the outcry about abuse at one facility; and conflict between the IPCC and Metropolitan Police about internal investigations…
Human Rights Awards and Tour: Liberty has opened nominations for their 2013 Liberty Human Rights Awards – all details here. Meanwhile, the British Institute on Human Rights’ free Human Rights Tour is now in full swing – full programme here.
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18 September 2013 by Alasdair Henderson
The Queen v. D (R) – Ruling available here.
The ruling by HHJ Murphy in Blackfriars Crown Court this Monday that a defendant in a criminal trial should not be allowed to wear a niqaab (face veil) whilst giving her evidence has prompted calls for a public debate about the wearing of face veils in public more generally. Adam Wagner has already commented on the case here. A summary and analysis of the decision follows below.
The defendant in this case, D, is a woman who is charged with a single count of witness intimidation. When the judge asked D to remove her veil in order to be formally identified for the court’s purposes at a plea and case management hearing, D refused because she believes she should not reveal her face in the presence of men who are not members of her immediate family. As a result, HHJ Murphy listed a special hearing to consider what orders should be made about the wearing of a niqaab during the rest of the proceedings, describing the issue as ‘the elephant in the court room’ which needed to be dealt with early on.
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17 September 2013 by Rosalind English
Fish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water (Case C-279/12) – read Opinion of AG Cruz Villalon
In this most recent case concerning access by private individuals to environmental information held by public authorities, the AG grasps the nettlish question of what precisely a public authority is. The issue was a subject of debate because the request for information had been addressed to private companies which manage a public service relating to the environment. The question therefore was whether, even though the companies concerned are private, they may be regarded as “public authorities” for the purposes of the Directive governing access to environmental information (Directive 2003/4).
Clearly the definition of the concept of “public authority” is an issue of importance not just in relation to access to information, but across the board, whether involving EU law or the application of the Human Rights Act 1998 and judicial review in domestic law.
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17 September 2013 by Adam Wagner
Yesterday, before His Honour Judge Peter Murphy ruled that a female Muslim defendant in a criminal trial must remove her face-covering veil (niqaab) whilst giving evidence, Home Office Minister Jeremy Brown said he was “instinctively uneasy” about restricting religious freedoms, but that there should be a national debate over banning the burka.
Many of us have a gut reaction to the niqaab, which poses particular problems for our mostly liberal, secular society. Arguably, it also prompts less laudable instincts originating in fear of the ‘other’. But trusting in our instincts is never a good way of solving complex problems. As I have suggested before, when politicians appeal to their gut they are often just avoiding making an intellectually sound case for their position.
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16 September 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular breakfast cereal variety box of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
Commentators have been criticising a number of assertions that Chris Grayling made about judicial review in the Daily Mail this week. Elsewhere, although Price Competitive Tendering has been scrapped, there are still many concerning proposals, and there has been a secret court rebellion by the Lib Dems.
Human Rights Awards: Liberty has opened nominations for their 2013 Liberty Human Rights Awards – all details here.
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13 September 2013 by David Hart KC
Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here
“It is well known that in United Kingdom court proceedings are not cheap” – a masterly understatement opening this opinion from our pictured AG to the CJEU about whether the UK system on legal costs complies with the obligation now in two EU Directives about environmental assessment and pollution control. The AG thinks that our way of doing costs is not up to scratch – with the origin of this obligation to be found in the UN-ECE Aarhus Convention to which the EU has subscribed (albeit abstemiously when the EU comes to its own affairs – funny that).
Bit of context – the EU has been warning the UK about costs for some years, with formal warnings going back to 2007 – and the Aarhus Convention Compliance Committee has been doing likewise from Geneva. But the EU courts are more scary – all the ACCC can do is wrap the odd knuckle. And on this topic, we have one individual case which has been to the CJEU (Edwards, where the UK does not look in good shape – see my post), and now this case saying that the UK has a systemic problem with excessive costs.
But one thing we must remember. The law according to the AG looks at the law before the UK had a go at sorting the problem out – see my post, as above. on the new UK regime. There is some important stuff about how the old system did not comply, which will have implications for the new rules.
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Mousa and others, R (on the application of) v Secretary of State for Defence [2013] EWHC 2941 (Admin) – read judgment
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